Adlam v Noack[1999] FCA 1230

3. The preceding two orders shall not prevent the respondent Paul Noack from attending meetings that he is entitled to attend in his capacity as State Secretary of the Union under the rules of the Union and participating in the business of such meetings in the ordinary way.

4. Pending the hearing and determination of the rule to show cause the respondent Paul Noack shall not engage in any conduct calculated to harass the applicant and shall not encourage, instruct, authorise or incite any person to engage in any act or behaviour calculated to harass the applicant."

6 His Honour described the nature of the application as Ms Adlam seeking "to protect herself, through the Rules of the Union, against the continuation of alleged harassment by Mr Noack". He considered that it is implicit in the Rules of the organisation that elected officials, such as Ms Adlam, will be permitted by other officials to perform the duties and functions of their office without harassment. His Honour said:

"It is no answer to assert that other officials were merely exercising the powers and functions of their offices. Action taken for the purpose of, or which is likely to have the effect of, harassing another Union official in the performance of his or her duties cannot be a bona fide exercise of power or function for the purpose for which that power or function was granted: Allen v Townsend (1977) 31 FLR 431 at 454, 483. In my opinion it is not necessary for the applicant, to establish a basis for the orders she seeks, to prove that the harassment she alleges is "sexual harassment"." 7 After referring to the Rules of the organisation, his Honour concluded that it was appropriate to make the interim orders referred to above. As appears from his Honour's reasons, he wished also to ensure by par 3 of the orders that Mr Noack was not prevented from performing functions which he is given a right to perform under Rule 24(3) of the Rules of the organisation, including the entitlement to attend and speak at any meeting of members of the organisation in South Australia. 8 Rule 24(3) provides that:

"The State Secretary shall be entrusted and authorised to act on all matters concerning the activities of the Union in the State, subject to these Rules. He shall be responsible for the co-ordination of the work of the State Organisers and shall for all purposes be the main Executive and Administrative Officer of the Union in the State." 9 Part 2 of the orders made on 22 July 1998 was, nevertheless, able to be made because a resolution of the South Australian State Council of the organisation made on 12 May 1998 authorised the allocation of administrative functions of the State branch of the organisation to someone other than the State Secretary. 10 On 13 October 1998, Ms Adlam by notice of motion applied for orders that Mr Noack be dealt with by the Court for contempt, in respect of the alleged breach of par 4 of the Orders made on 22 July 1998. She has given notice that, if the alleged contempt is established, she will seek the orders against Mr Noack that he be suspended from office as the State Secretary of the organisation, and that a certain resolution of the South Australian State Council of the organisation passed on 7 October 1998 "concerning the Women's Committee" be treated as null and void, in addition to the orders generally available to punish for contempt. Those two orders are sought on the motion only as appropriate orders as a result of the alleged contempt, if it is made out. There is no separate issue before me that those orders should be made on any other grounds. The Statement of Charge 11 Ms Adlam alleges that Mr Noack has breached par 4 of the Orders made on 22 July 1998 by engaging in conduct calculated to harass her by

"… both promoting and moving on 7 October 1998 the purported resolution of the State Council of that date concerning the Women's Committee."

12 The resolution referred to is contained in the minutes of the meeting of the South Australian State Council of the organisation held on 7 October 1998 under 'Item 4: Memos'. The whole of the relevant part of the minutes is as follows: "Re Women's Committee Moved and Seconded Camillo/Boddey That the Vehicle Division nominees Sally Forrestal, Sarah Huemmer, Thea Wright, Sue Camilleri and Barbara Grosser be endorsed as Vehicle Division Women's Committee members. Rod Parham advised Cath McKechnie, Janice Alsop and Jane Howard were the nominees for the Printing Division. CARRIED Moved and Seconded Noack/Camillo That the members of the Women's Committee as nominated be endorsed. That the first meeting of the Women's Committee be convened for the rank and file delegates only and this meeting be convened by the State Vice President Cath McKechnie. We call on the meeting to draft a constitution, a programme of activities. Prior to the debate commencing the President cautioned the Council in relation to the matter before it and the existence of previously issued orders from the Federal Court of Australia. Amendment: Moved and Seconded Biddle/Gunner That the Women's Committee be convened by Max Adlam who shall be responsible for developing a programme of activities and provide a report to State Council. The amendment was put and declared LOST The motion was then put and declared CARRIED The President again reminded the Council as to the resolution just carried and the existence of previously issued Federal Court orders and the relationship between both matters. The President then sought to have his opposition recorded. The following Councillors requested their opposition be recorded: P Bauer, P Gunner, S Biddle, J Short, J Watson, J McKay, R Brown, C Fenney, M Palmer, B Pringle, J Murphy."

I shall call the motion minuted as moved and seconded by Camillo/Boddey and then passed "the first resolution" and the motion minuted as moved and seconded by Noack/Camillo and then passed "the second resolution". 13 Mr Noack accepted that he supported the first resolution. He also accepted that he moved the second resolution. He also accepted that he opposed the amendment to the second resolution. He accepted the accuracy of the minutes, generally. 14 It was also accepted that Ms Adlam was, by reason of the second resolution, excluded from attending the "first meeting" of the newly constituted Women's Committee because she was not a rank and file delegate. Ms Adlam contends that the resolution had more far reaching consequences than that. It will be necessary to address that contention later in these reasons. 15 There is no doubt that Mr Noack moved the resolution referred to in the Statement of Charge. 16 In Witham v Holloway (1995) 183 CLR 525 the Court determined that the criminal standard of proof applies when it is alleged that a person has failed to comply with an order made or undertaking given in civil proceedings: see per Brennan, Deane, Toohey and Gaudron JJ at 529-535, and per McHugh J at 535. Accordingly, in determining whether the charge is made out, I shall require to be satisfied of each element of the charge beyond reasonable doubt. Formal matters 17 I find that Mr Noack was served with the Order of the Court of 22 July 1998, and was in addition aware of its terms by being present in Court when that order was made. I am also satisfied that he has been served with the notice of motion now before the Court, the statement of charge, and the affidavits upon which Ms Adlam relies on the motion.

The background to the resolutions 18 Ms Adlam has, she says, been the Women's Officer for the South Australian Branch of the organisation since 1992, and the convenor of a committee called the Women's Committee since 1991. There is no provision in the Rules of the organisation for the existence of the Women's Committee. She says that the Women's Committee was established in 1991 as a committee of the State Council, reporting to the State Council. It was not empowered to pass resolutions for the organisation, but was to provide recommendations to the State Council for its consideration. No resolution establishing the Women's Committee or determining its composition was presented in evidence but it has clearly operated for some years. Mr Noack's evidence was that he had searched the minutes of the State Council, and had been unable to find any such resolution. Despite his oral evidence, in which he questioned the formal existence of the Women's Committee, Mr Noack by affidavit sworn in the proceeding on 13 October 1998 (which was part of the evidence on the motion before me) expressly acknowledged the existence of the Women's Committee even prior to the amalgamation of the Vehicle Builders' Union with the Metals Union. He also confirmed, as is clearly the case, that the Vehicle Division nominated delegates to the Women's Committee. 19 There is a document headed "AMWU Women's Committee Charter", undated, the validity of which was not challenged. Having regard to the oral evidence, I find that it was the document adopted by the State Council when it established the Women's Committee. It deals separately with the role, composition, and objectives of the Women's Committee. Its prescription for the composition of the Women's Committee, and for delegates' costs of attendance to be met when meetings are conducted during working hours, accords with the composition of the Women's Committee in its early stages, as described by those witnesses who were early members of it. The arrangement for costs of attendance to be met also accords with the practice of the organisation. That document also provides for further additional women delegates, not exceeding four per division, to attend its meetings. That reflects the composition of the Women's Committee in the period leading up to 1998. 20 The Women's Committee has operated for a number of years. Its convenor has always been Ms Adlam. Initially, it operated with one woman delegate from each of the five divisions of the organisation. At some point, it began to operate with four women delegates from each of the five divisions of the organisation, although the Print Division generally sent only two delegates. At material times, it had monthly meetings. They were conducted at the offices of the organisation. All the evidence is that, until about mid 1996, it operated in an effective and positive way. Each of the delegates who gave evidence described it as a Committee within the organisation that operated without rancour, and that the delegates had respect for Ms Adlam and for each other. None were critical of Ms Adlam's performance as the convenor of the Women's Committee, or of the work of the Women's Committee. It is obvious that the Women's Committee sought to address significant issues, and was active in doing so. 21 However, the organisation as a whole did not function with that degree of equanimity. It is clearly a house divided. Mr Noack is in one faction, and Ms Adlam is in the other. The factional division has flowed from the merger of several organisations into the organisation. One such merging entity was the Vehicle Builders Employees Federation. Upon that entity merging with the organisation, its members remained attached to the Vehicle Division of the organisation. Numerically, it is the largest division. Mr Noack was the state secretary of that entity before the merger. There are four other divisions of the organisation, also comprising members of entities which previously were separate organisations. Those divisions are the Metals Division, the Print Division, the T & S Division and the Food Division. 22 It is clear that Mr Noack has, for some time, sought to remove Ms Adlam from her position as Women's Officer, and as convenor of the Women's Committee. He said as much. In July 1995, he moved at the State Council meeting that she be replaced as Women's Officer, but that resolution was defeated. 23 Following an incident alleged by Ms Adlam to have constituted an indecent assault upon her by Mr Noack on 10 May 1996, the four delegates of the Vehicle Division to the Women's Committee, and three other Vehicle Division women shop stewards provided a document to Mr Noack in his then capacity as Divisional Secretary of the Vehicle Division indicating that they had:

"… decided to suspend any involvement in the A.M.W.U. Womens Committee due to attacks on the Vehicle Division. When relations in the Union Office improve we will reconsider re-joining the committee."

24 That decision was solicited by Mr Noack. It was solicited in response to the allegation by Ms Adlam that he had indecently assaulted her. He sought the personal support of those women, in his capacity as the leader of the Vehicle Division, on the basis that an attack on the leader was an attack on the Vehicle Division. The decision of the women delegates from the Vehicle Division to the Women's Committee was not the consequence of any events which had happened, or attitudes which had been expressed, in the Women's Committee. The Regional Council of the Vehicle Division on 16 July 1996 endorsed that action, and also expressed its concern that the organisation had failed to remove Ms Adlam as Women's Officer "given her false accusations" against Mr Noack. 25 Despite that non-participation, the Women's Committee continued to meet monthly, under Ms Adlam's organisation as its convenor. It appears that the State Council authorised the then State Secretary to write to all women members of the Vehicle Division inviting expressions of interest in being appointed to the Women's Committee and the "Womens News" published by the Women's Committee also invited expressions of interest. A number of expressions of interest were received. The Women's Committee had, or developed, criteria for assessing them. On 25 February 1997, it made recommendations to the State Council for the appointment of four delegates to the Women's Committee from the Vehicle Division, and those nominations were endorsed by the State Council. Two of the former delegates had responded to the invitation to express interest in being appointed to the Women's Committee, but they were not appointed. 26 The Vehicle Division Regional Council, including Mr Noack, were unhappy with that process. It had by-passed the Regional Council. It did not, he said, take account of the fact that those women delegates had only "suspended" their involvement in the Women's Committee (although their notice to the Regional Division was also to the effect that, later, they would consider "re-joining" that committee). It led to the expressed view on the part of Mr Noack that the Women's Committee was "unrepresentative", that it was dominated by Ms Adlam and her friends, that it was not reflective of the rank and file membership, and that it comprised an insufficient number of shop stewards. 27 I regard those expressed concerns as disingenuous. The evidence from all the women on the Women's Committee, as I have noted, was that it functioned harmoniously and in a non-factional way. The circumstance in which factionalism intruded into its operations was Ms Adlam's complaint against Mr Noack, and the later response from the Vehicle Division women delegates which he sought because he was the leader of that Division. The replacement of those delegates in the manner described led to the Vehicle Division Regional Council, including Mr Noack, not having any role in the appointment of those new delegates, and it appears from Mr Noack's evidence that at least one of those new Vehicle Division delegates was not sympathetic to Mr Noack's faction. 28 In his evidence, Mr Noack also said that he did not think that the Women's Committee was doing a good job. He thought it had done nothing. I do not accept his evidence on that topic. It was clearly an active committee, and provided reports and recommendations to the State Council for consideration, including various submissions to be sent to certain public inquiries. He was, as his cross-examination showed, simply unaware of its activities and he had made little effort to find out what they were. He had not inspected its Charter, or sought to measure what it had done against that Charter. Each witness who has been a member of that Committee, including those from the Vehicle Division, gave evidence that the Committee was industrious and productive. I am satisfied that Mr Noack was not truthful in that evidence. It was put forward as an explanation for the steps he took in 1998 in relation to the Women's Committee. I do not accept that explanation. I find that the steps he took, and the steps the Vehicle Division took under his guidance and with his support, up to mid 1998 were directed to having Ms Adlam removed from her role as convenor of the Women's Committee, and to diminish her role and influence in the organisation. 29 There was a State Conference of the organisation on 11 and 12 May 1998. Mr Noack, as State Secretary, was responsible for the preparation of the Agenda for that conference. As State Secretary, he was to include on the agenda matters referred to State Conference by the various limbs of the organisation. Shortly before that conference, on 29 April 1998, a decision was given in the District Court of South Australia in proceedings between Mr Noack and Ms Adlam. Mr Noack had sued Ms Adlam for defamation in her assertion that on 10 May 1996 he had indecently assaulted her. Ms Adlam had responded by pleading the truth of that assertion. She had counterclaimed for damages for assault. Ms Adlam's allegations were found to have been true. Mr Noack's claim was dismissed. Ms Adlam was awarded damages for assault. Mr Noack's appeal against that decision to the Full Court of the Supreme Court of South Australia was dismissed on 20 August 1998. 30 In April 1998, a supporter of Mr Noack, John Camillo ("Mr Camillo") approached one Gwyneth Regione ("Ms Regione") for support in having Ms Adlam removed as Women's Officer of the State branch of the organisation and replaced by Ms Regione. Mr Camillo was then the Regional Secretary of the Vehicle Division of the organisation in South Australia, the office previously occupied by Mr Noack before he became State Secretary. Ms Regione was employed in the Vehicle Division's area of coverage. Ms Regione declined to participate in any such move. By memorandum of 3 May 1998 to the State President Ian Curry ("Mr Curry") and to Mr Cameron, she informed them of the approach by Mr Camillo and of her strong support for Ms Adlam. 31 On 5 May 1998, the Women's Committee resolved, in the light of the decision of the District Court on 29 April 1998, to have Mr Cameron as the National Secretary put before the National Council their resolutions requesting that Mr Noack be removed as State Secretary, and that steps be taken to protect Ms Adlam in the performance of her duties.

32 For the State Conference, the Vehicle Division presented proposed resolutions concerning the Women's Committee in the following terms:

"That the State Conference endorses the holding of quarterly Women's Committee meetings. That the Women's Committee be comprised of women shop stewards/members from the Vehicle, Metals, Printing, T&S and Food Divisions. Representation on this Committee be proportional and as follows; Vehicle up to 8 Metal up to 5 Printing up to 2 T & S 1 Food 1 That Regional Councils be responsible for nominating the delegates to the Women's Committee. That the State Secretary convene the first meeting of the Women's Committee. That Industrial Officer Gwyneth Regione be responsible for convening and carrying out the work of the Women's Committee. … EEO Officer/Affirmative Action Officer That State Conference appoints Industrial Officer Gwyneth Regione to the position of Affirmative Action and Equal Opportunity Officer. Further that Gwyneth Regione be the representative of the AMWU in South Australia on the National Women's Committee. That Sally Forrestal be the Affirmative Action representative at all the State Council meetings of the AMWU." 33 Although, as State Secretary, Mr Noack properly put those motions from the Vehicle Division before State Conference, he clearly engineered their presentation from the Vehicle Division. As he said, he saw Ms Adlam and her position within the branch, including in relation to the Women's Committee, as part of a "political attack" on the Vehicle Division and its officials, in particular himself and Mr Camillo. He was aware that a member of the Women's Committee had campaigned in the Vehicle Division elections in 1996 for a woman candidate in opposition to Mr McMahon. Mr McMahon he described as the "official ticket", by which he acknowledged he meant the incumbents including himself. Mr Noack acknowledged that he was committed to having Ms Adlam removed from her role on the Women's Committee. 34 I find that Mr Noack, Mr Camillo and Mr Parham together drafted those resolutions. Mr Noack did not specifically acknowledge that he did so, but agreed that it was most likely that he did so. He was clearly a driving force behind them. They were not presented to the Women's Committee, nor to any individual member of the Women's Committee, for consideration. 35 I also find, based on Mr Noack's evidence, that those proposed resolutions were not circulated to delegates to the State Conference before 11 May 1998. They were included in the conference papers handed out to delegates when they arrived for the conference. Those papers were distributed to officials of the branch, and to secretaries of the Divisions, on the Thursday and Friday preceding the conference commencing on the Monday. There was no real opportunity for the delegates to the State Conference to refer those resolutions to their Divisional Councils for consideration or instruction. The evidence does not make clear whether, in respect of any of the other business on the agenda for the Conference, earlier notice had been given. 36 As a result of discussions between Mr Noack and Mr Cameron, at State Conference Mr Noack sought, and was granted, leave to amend those motions. Firstly, he amended that part of the motions permitting "members" to be members of the Women's Committee; membership was to be restricted to shop stewards. Up to that time, not all delegates to the Women's Committee had been shop stewards. Second, he removed from the proposed resolutions those that directed him as State Secretary to convene the "first meeting" of the Women's Committee and required that Ms Regione become responsible for convening and carrying out the work of the Women's Committee. As noted, Ms Regione had declined to be so nominated. Third, he removed from the proposed resolutions those that proposed Ms Regione as the branch representative on the National Women's Committee, and as the Affirmative Action and Equal Opportunity Office. Ms Adlam fulfilled each of those specific roles at the time. The resolutions (before their amendment) were clearly directed at her. Ms Forrestal was a shop steward in the Vehicle Division, and until the withdrawal of Vehicle Division delegates from the Women's Committee had been a delegate of long standing to that committee. 37 The resolutions, as amended, were passed. 38 Neither Mr Noack or the other proponents had explicitly considered a longstanding National Council Affirmative Action policy, in particular in so far as that policy seeks to encourage the widest possible participation of women in its various entities. That policy may have had bearing on the validity of those resolutions restricting the composition of the Women's Committee to shop stewards only, and on the proportional representation decision. Certain women members of the organisation appealed to the National Council against that decision. The National Council in June 1998 expressed the view that limiting participation on the Women's Committee to shop stewards was contrary to the spirit and intent of its Affirmative Action policy. It referred the issue of eligibility to a Standing Committee for consideration. It deferred ruling on an aspect of the appeal that the resolutions were punitive and motivated by revenge until a later National Council meeting. It determined that the Women's Committee be constituted consistent with the National Conference Policy that promotes an increased level of participation in the organisation by women. It rejected the appeal against the decision to appoint Ms Forrestal as the Affirmative Action representative at State Council meetings. The conduct leading up to the conduct complained of 39 The next step in the history of events relevant to the motion before me is the Rule to Show Cause and Order made on 15 July 1998 and the Order made on 22 July 1998. 40 There was a State Council meeting on 19 August 1998.

41 Among the late items on the agenda was one concerning the Women's Committee. The resolution on that item was put forward, and passed, in the following terms:

"Women's Committee Moved and Seconded Noack/Camillo Consistent with the National Council and Conference decision in relation to the South Australian State Conference decision, the Women's Committee to be constituted as follows: 1. Eligibility AMWU Women Officials/Officers and in addition representation from shop stewards, rank and file/unemployed women activists. 2. Composition To be done on a proportional representation basis i.e. Vehicles up to 5 representatives, Metals up to 4 representatives, Printing up to 3 representatives, T&S up to 2 representatives, Food up to 1 representative. 3. Length of Term on Committee To be decided by the Women's Committee. Further, that Regional Councillors propose the members representing their division on the Women's Committee for endorsement at the October State Council meeting. That all of the above remains subject to advice from the National Secretary as to the necessity to put the motion to a State Conference vote. CARRIED Comrades Sally Biddle, Paul Gunner and Peter Bauer requested their opposition be noted in the minutes."

42 The proposed resolutions were presented to the State Council meeting in handwritten form. It was written by Mr Parham, but was drafted by Mr Noack, Mr Camillo and Mr Parham. 43 Mr Noack said that par 1 was to respond to the National Council direction, and par 2 to make the Vehicle Division less dominant. Mr Noack strongly supported those motions. He did not recall why the proposed resolutions were only prepared so close to the State Council meeting, but it is clear that that was the case. They were not sent to the Women's Committee because, Mr Noack said, there was no Women's Committee at that time. I do not believe that evidence. I find that it was not sent to the Women's Committee (as Mr Noack then understood it to be), or to any members of the Women's Committee, because he regarded those then on that committee as his factional enemies. For the same reason, he did not send it to the president of the State branch, Mr Curry, as he also was a factional opponent. The later the notice of the resolution, the less the time available to marshal opposition to it. I find that, although par 1 of that resolution was apparently to respond to the National Council directive, it was also part of the ongoing efforts on the part of Mr Noack, Mr Camillo and perhaps others to wrest control of the Women's Committee from Ms Adlam. 44 There is a clear and well known distinction between an 'Eligibility' provision and a 'Composition' provision in Rules of an organisation. Certain answers given later in his evidence by Mr Noack show that he was aware of that distinction. He disputed that the effect of those resolutions was to reduce the number of members on the Women's Committee from 20 to 15, because (he said) in reality it was 15 plus the officials. Clearly it does not say that. It is not necessary to determine whether that consequence was due to poor wording on the part of those drafting the proposed resolutions, or an attempt to reduce the overall numbers and to exclude officials from participating except as nominated as delegates from a Division. The expression may have been the consequence of inadequate last minute drafting by Mr Noack, Mr Camillo and Mr Parham. It is also not necessary to decide their reasoning in abandoning direct proportional representation, in favour of some different form of representation. As the evidence shows, there was at the time a general perception that the Vehicle Division and the Printing Division were voting allies. The consequence of the restructured "proportional" representation was to give those two divisions a majority of votes, if officials were not able to become members except as divisional representatives. 45 Following that resolution, on 10 September 1998, memoranda were sent to the regional secretaries of the Divisions seeking nominations for delegates to the Women's Committee for the next State Council meeting. It was to be held on 7 October 1998. Ms Adlam received that memorandum as the regional secretary of the T & S Division. 46 On the same day, a further complaint by certain women members of the organisation was made to the National Council about the State Council decision of 19 August 1998 that the "reconstitution" had been effected without consultation, and also of other matters to which it is not necessary to refer. The conduct the subject of the charge 47 There was to be a State Council meeting on 7 October 1998. The agenda, as prepared by Mr Noack, had several items concerning the Women's Committee. It included the motions for the first resolution and for the second resolution. As noted earlier in these reasons, Mr Noack's role in relation to those resolutions, as minuted, and the minutes generally, are not in dispute. 48 Again, apart from being sent to regional secretaries a few days before the meeting, the agenda and the papers for the Council meeting were not distributed to councillors until they arrived at the meeting. Mr Noack's evidence and findings concerning it 49 Mr Noack gave evidence that his reason for putting forward the second resolution was because he was aware that some members of the existing Women's Committee felt uncomfortable at its meetings. He said that his main concern was that the women should be able to meet freely without intimidation. He said, in support of that view, that he moved the second resolution prompted by Mr Camillo, at the end of a meeting of the Women's Committee of the Vehicle Division on 1 October 1998 having:

"expressed the view that the women from the vehicle division had expressed an apprehension, if you like, that they had a problem with attending the meeting; they felt intimidated or harassed by [Ms Adlam], and [Ms Forrestal] expressed the view that why can't they have an initial meeting where they can discuss freely amongst themselves, you know, what sort of form they wanted the women's committee to take place, and that was certainly agreed to by the other women that were present. Can you tell us - and if it is possible to use direct speech, then do; you know, "Sally said this, I said that, John said something else"?---Yes. What was said after that much was said?---Either I or John said, "I didn't think there would be a problem with doing something like that". "

The women shop stewards of the Vehicle Division have met regularly for a number of years. 50 After that meeting, according to Mr Noack, he also discussed the matter with Mr Camillo and Mr Parham. He said Mr Parham is reported by Mr Noack to have said

"that [Ms McKechnie] also felt very uncomfortable about attending those women's committee meetings and [Mr Parham's] view was he felt by women initially meeting by themselves would allow them to express their views without any intimidation."

51 Mr Noack, Mr Camillo and Mr Parham then set about drafting the proposed resolution. They did not consult with Ms McKechnie. 52 He explained that that part of the second resolution concerning the drafting of a constitution and a program of activities, was included because:

"That was the concept of having the first meeting - being a rank and file - so the women themselves could talk about what sort of constitution they wanted; what sort of activities they wanted to get involved in and then, of course, that would be subject to a state council decision because they were simply a subcommittee of the state council." 53 Thus, it was contended, Mr Noack's actions in respect of the first resolution and the second resolution on 7 October 1998, were argued to be the exercise of legitimate political action and not for the purpose of harassing Ms Adlam. Mr Noack also sought to support his action by the more general claim that the Women's Committee was not smooth running and harmonious because, at times, the Vehicle Division women were not treated in the same way as women from other divisions. 54 The evidence does not support those claims as a matter of fact. Mr Noack's evidence revealed that he had received few, if any, first hand complaints about Ms Adlam. He had been told that Catherine McKechnie ("Ms McKechnie") felt uncomfortable at those meetings, but he did not seek to confirm that with her or to assess the extent of any discomfort. Ms McKechnie is the President of the Print Division of the branch, a State Vice President, and a shop steward. She was a member of the Women's Committee from 1995. She last attended a full meeting of that Committee on 21 April 1998. There was a further urgent meeting called on 5 May 1998 to consider the then proposed resolutions to the State Conference. She left soon after it started because the Women's Committee was then planning some action to disrupt the forthcoming State Conference in relation to anticipated resolutions adverse to their interests. Ms Adlam was not at the meeting on 5 May 1998. As a delegate to the State Conference, she felt it improper to participate in the meeting planning such action, and so left during the discussion. 55 Ms McKechnie did not in her evidence complain of intimidation or discomfort She described making a request at a meeting of the Women's Committee to explain how she had come to have her photograph taken with Mr Noack in a photograph used by Mr Noack in his campaign in late 1997 for election as State Secretary. She had received a private abusive telephone call from another woman, by then also a member of the Women's Committee. She was permitted to give that explanation. She did not make any formal complaint of that telephone call to Mr Noack, or to Mr Parham. She did mention it once, informally, to Mr Parham well before the Council meeting of 7 October 1998. Even if it was ever to be followed up, it had become stale by 7 October 1998. 56 She confirmed that the Women's Committee meetings were well run, and that Ms Adlam performed her duties in respect of the committee well. She provided no foundation for any dissatisfaction with Ms Adlam's performance. 57 Ms McKechnie also puts into context another incident of "intimidation" which was opened on behalf of Mr Noack. It concerned Jane Howard ("Ms Howard"). Mr Noack opened that Ms Howard had been aggressively challenged about her entitlement to attend the Women's Committee meetings. Ms Howard first attended the April 1998 meeting as a new delegate from the Print Division. One of the other persons present asked if she was attending on Mr Noack's behalf. Mrs McKechnie then explained that she was a new delegate. She regretted she had not introduced Ms Howard in that capacity earlier in the meeting. It was not an intimidatory incident, although somewhat embarrassing for Ms Howard. An inquiry of Ms McKechnie would have revealed that circumstance. 58 On 1 October 1998 there was a meeting of the women's committee or group of the Vehicle Division. Those present included Sally Louise Forrestal ("Ms Forrestal"), Sarah Jane Huemmer ("Ms Huemmer"), Ms Regione, Ms Clayton, Mr McMahon and Thea Fuller (formerly Wright) ("Ms Fuller"). She is a shop steward in the Vehicle Division. She was not a member of the Women's Committee of the branch. Ms Forrestal was a delegate to the Women's Committee of the branch from 1994, initially when there was one delegate only. She rotated participation with Ms Huemmer. When the number of delegates increased to four from each Division during 1995, they each attended. Ms Huemmer was a shop steward until November 1998. 59 At the 1 October 1998 meeting, they discussed the response to the memorandum of 10 September 1998 calling for nominations to be made to State Council for delegates to the Women's Committee. They had several names in mind. They did not resolve to recommend any names to their Divisional Council. Ms Fuller thought that Mr McMahon would check with those whose names had been discussed to see if they were prepared to participate. After the close of the meeting, certain persons including Ms Regione left the office. 60 There was then some informal discussion between Ms Fuller, Ms Forrestal and Ms Huemmer. Each of Ms Fuller, Ms Forrestal and Ms Huemmer gave evidence about the discussion which then took place. It was in large measure entirely consistent. Ms Forrestal struck me as somewhat less sure of her answers, and I do not think her recollection is entirely reliable. It is not significantly different from that of Ms Fuller and Ms Huemmer. I prefer their evidence where there is any conflict. I found Ms Fuller and Ms Huemmer both to be straightforward and reliable witnesses. Ms Forrestal did not recall that that discussion occurred outside the formal meeting, but I am satisfied that it did. She described only herself, Ms Huemmer and Ms Fuller being present with Mr Noack and Mr Camillo. She said the conversation was much as Ms Fuller deposed. 61 During that informal discussion, Mr Camillo came into the office to ask for their nominated delegates. Despite there having been no resolution on the matter, he was given a list of five names. Mr Noack also came into the office about that time. In that period, Ms Forrestal asked if the first meeting of the new Women's Committee could be "without officials", as she thought it would be helpful to have an informal meeting to get to know people. Mr Noack was in the office when that occurred. He said that he could see no reason why that should be a problem. There was little further discussion on the topic. Ms Huemmer also may have said that she was concerned that the meeting might be a little awkward. Both she and Ms Forrestal were delegates to the Women's Committee from the Vehicle Division who had withdrawn in mid-1996. Mr Forrestal confirmed that the Women's Committee functioned well. She was reluctant to leave that committee in mid 1996, as it was doing important work, but she did so out of loyalty to the leader of the Vehicle Division. No incident of intimidation was then identified. The request was made only in the general terms described. It provided no foundation for Mr Noack's asserted belief. Ms Forrestal also said that the discussion included that those present had a few fears about how they would be treated and what would be said to them when they resumed membership of the Women's Committee, and that they feared that they might be "intimidated". I do not accept her evidence that a fear of intimidation was then expressed. I find Ms Forrestal's evidence is unreliable in that regard. I accept that Ms Forrestal asked Mr Noack if they could have a meeting without officials, but I find the content was their desire to meet informally to break down any barriers that might have existed by reason of their departure in mid 1996. It was not a fear of intimidatory conduct by Ms Adlam or by anyone else. Ms Huemmer confirmed that she was somewhat uneasy about going to the Women's Committee as a new delegate, as she did not know how the other women would feel with her and Ms Forrestal returning after having left in mid 1996. She feared some tension. She said that to Mr Noack and Mr Camillo. 62 It was opened that Ms Huemmer would also give evidence of further intimidatory conduct by Ms Adlam. Her evidence did not confirm that. After the resolutions concerning the Women's Committee were passed at the 19 May 1998 State Conference, she spoke to Ms Adlam in the car park. Ms Adlam observed to her that the resolutions were "not good for women". Another woman with Ms Adlam made an offensive remark to Ms Huemmer, and Ms Huemmer did not respond. She felt upset by the remark, and spoke to Mr Camillo about it. It was not then taken any further. Her evidence provides no basis for Mr Noack to believe that Ms Adlam had engaged in intimidatory conduct. Nor does it provide a basis for Mr Noack to believe that any such alleged conduct, which to then had been uninvestigated, provided a proper foundation for the second resolution. Indeed, had Mr Noack asked her, Ms Huemmer would no doubt have told him, as she said in evidence was the case, that generally she has good relations with Ms Adlam. She considers Ms Adlam did a good job running the Women's Committee. Her agreement to withdraw from the Women's Committee in mid 1996 was out of factional loyalty. She had not experienced ill-will from other members of the committee or from Ms Adlam. She had no person concerns about the quality of the work of the Women's Committee or how it was being run. 63 None of the witnesses provided any foundation for Mr Noack's criticisms of the work of the Women's Committee, or of Ms Adlam. None of those witnesses identified Ms Adlam as the particular cause of their unease, although Mr Noack said that he interpreted the observations of Ms Huemmer and Ms Forrestal as directed at her. The request to meet without officials was a request of Ms Forrestal and Ms Huemmer, and couched in circumspect terms. It was not a request of the Vehicle Division Women's Committee. It was not a request which obliged Mr Noack to implement it in the manner he did. It was not an occasion when Mr Noack could have come away with the belief that Ms Forrestal or Ms Huemmer had particular fears of intimidation by Ms Adlam. 64 Mr Noack also said in evidence that he sought to restrict eligibility for the Women's Committee to shop stewards because it was "not representative". The Women's Committee was comprised of nominees from the divisions. However, he did not know the extent to which the Women's Committee was already comprised of shop stewards. He had not sought to find out. Further, in cross-examination as to why he said the committee was not representative, he explained that he considered that it was "not functioning". His cross-examination showed that he really had little idea how it was functioning. No members of that committee, including the women from the Vehicle Division (who were all shop stewards) suggested there was any foundation for that belief. I have rejected that evidence. I find that the resolutions proposed at the May 1998 Council meeting were aimed at displacing the role of Ms Adlam in relation to the Women's Committee. It is not necessary to determine whether that was purely a consequence of factionalism, or was a consequence of personal disapproval of Ms Adlam, or a combination of those matters. 65 I am firmly of the view that, in fact, Mr Noack's explanations for his moving the second resolution are unfounded. As noted, there is no real evidence of intimidatory conduct by Ms Adlam towards other members of he Women's Committee, including women from the Vehicle Division. The contrary is the case. There is no evidence that women from the Vehicle Division were treated differently. The factional split in mid 1996, when the Vehicle Division women left that committee, was not because of any behaviour towards them at the committee. The evidence is all one way (apart from Mr Noack's assertions) that the Women's Committee was operating effectively and properly. I have found that I do not accept that Mr Noack believed to the contrary. Ms McKechnie did not feel uncomfortable about attending the Women's Committee because of Mr Adlam's role. She was laudatory of Ms Adlam. Other incidents of alleged intimidation which were opened on were not proved. My findings about the informal discussion on 1 October 1998 do not warrant the claim that it was incumbent upon Mr Noack, or for that matter Mr Camillo, to act as they did at the State Council meeting on 7 October 1998. There was no decision of the Vehicle Division regional council to propose or support those resolutions, and no request by the Women's Committee or group of the Vehicle Division to the regional council to do so. The terms of that brief discussion do not support Mr Noack's claim as to why he acted as he did. 66 It is, in my view, also necessary to determine whether Mr Noack nevertheless may have held those views notwithstanding that they are without foundation. I am satisfied that he did not do so. I carefully considered all his evidence and his manner of giving it. I bore in mind that there are deep rooted and long standing factional animosities in the branch of the organisation which might lead to honest, yet misconceived, beliefs about the conduct of those in opposing factions. Mr Noack also is in the position where, despite the decision in the District Court, he claims that Ms Adlam has made a serious and unfounded allegation against him. Those matters may colour the information received by him about Ms Adlam. 67 However, overall his evidence was quite unsatisfactory. It gave the impression that he was seeking, and trying to make the most of, information about Ms Adlam's work performance to pursue his personal desire to remove her as far as possible from the affairs of the organisation. I have referred above to the evidence he gave about the existence of the Women's Committee. It provides an illustration of that attitude. His claim that the Committee was not doing a good job was demonstrated to have been unwarranted; he is largely ignorant of what it has done in the past. He had not made any real inquiries to confirm or dispel his claim. He was unable to point to any cogent material to support his claim that the Committee was unharmonious. Any inquiry of those to whom he referred, including women from the Vehicle Division, would have revealed that it was a smoothly operating and amicable Committee. His failure to make any direct inquiry of those whom he claimed to have been the victim of intimidation is not consistent with a genuine concern that such intimidation had occurred. In addition, if there were matters brought to his attention which were of genuine concern to him as State Secretary, it is not consistent that he should have accumulated them to justify the action taken on 7 October 1998. He should, in that event, have caused the concerns to be addressed at the time, by having them investigated. The failure to take any such action indicates in my view that they were not regarded by him as having the status and significance which he now ascribes to them. 68 I find that the informal discussion of 1 October 1998 with Ms Forrestal, Ms Huemmer and Ms Fuller was not regarded by him as warranting his moving the second resolution. The normal procedure for such matters being presented to State Council was by reference from a divisional council and if appropriate in turn from a divisional committee. That did not occur. It was an informal request. Furthermore, there was nothing in the conversation which could have warranted that part of the second resolution concerning the drafting of a constitution and a program of activities. That was not what Ms Forrestal and Ms Huemmer had sought. There is no evidence that the rank and file women wanted to draft a constitution or to set in place a program of activities at the first meeting, or to do other than to clear the air as a result of their earlier decision to leave the Women's Committee. His evidence, noted above, that the concept was to talk about the "sort of constitution they wanted" and the "sort of activities they wanted to get involved in" is, in my judgment, untrue. Is the charge made out? 69 I remind myself that I must be satisfied of each element of the charge beyond reasonable doubt. 70 There is no doubt that Mr Noack promoted and moved the second resolution on 7 October 1998. He said that he did so, and give his explanation as to why he did so. I am satisfied, for the reasons given above, that he was not truthful in that explanation. 71 It is necessary then to decide whether his conduct in promoting and moving the second resolution was calculated to harass Ms Adlam. 72 In O'Sullivan v Lunnon (1987) 163 CLR 545, the High Court had to consider whether the accused had contravened s 5(1)(c) of the Electricity (Continuity of Supply) Act 1985 (Qld) by doing an act "calculated to harass …" as person on account of that person performing duties in the course of employment in connexion with a supply of electricity. 73 Gibbs CJ (with whom Mason, Dawson and Deane JJ agreed) said at 549:

"The word 'calculated' may be used in two senses, as meaning either devised with forethought, or 'likely' … [It's] meaning in any case must of course depend on the context in which it is found."

74 As his Honour concluded that the expression 'on account of' was used in the ordinary sense of 'because of', that is, the reason for a purpose of the act in question, it followed that 'calculated' imported an element of intention or design. Brennan J at 552-553 also observed that the expression may connote the purpose of the person who does a certain act, or the likelihood of that act to have an effect in the circumstances in which it was done. His Honour then said (at 553):

"When 'calculated' is used in a phrase descriptive of an act that is penalized, prima facie it connotes the actual intention or purpose with which the person who does the act does it. Depending on the meaning to be attributed to 'calculated' in the context, the second element may require either that the harassing act be done with the actual intention or purpose of harassing or that the act be of such a kind that, looked at objectively, it was in fact likely to result in harassment."

75 An example of the latter meaning being adopted in the particular circumstances is provided by Thurley v Hayes (1920) 27 CLR 548, where the word 'calculated' was used to describe the prohibited conduct as an alternative to intent. An example of the former meaning is provided by North v Marra Developments Ltd (1981) 148 CLR 42 per Mason J at 58-59. 76 In my judgment, the expression "calculated" in par 4 of the order of the Court made on 22 July 1998 is used in the sense of intended to harass, Ms Adlam, rather than being of the character that, looked at objectively, the conduct complained of was likely to harass Ms Adlam. The content of that order was Ms Adlam's complaint that Mr Noack intentionally had been engaging in conduct intended to harass her. It is also likely that an order so expressed, with consequences for non-compliance such as those now sought to be visited upon Mr Noack, was intended to direct attention to Mr Noack's state of mind rather than to some objective assessment of the quality of his conduct. As Brennan J said in O'Sullivan (above), because it is descriptive of an act that is or may be penalised, it is likely to connote actual intention. 77 I am satisfied beyond reasonable doubt that Mr Noack promoted and moved the second resolution because he intended to harass Ms Adlam. His conduct was not simply that of attending the State Council meeting on 7 October 1998 as State Secretary, and participating in that meeting in the ordinary way. It was not conduct to which par 3 of the orders made on 22 July 1998 refer. My findings above indicate why that is so. I have rejected his explanation for his conduct. I consider that he promoted and moved the second resolution in the knowledge that it would distress Ms Adlam and cause her serious concern. He knew that the effect of the second resolution, if passed, would be to exclude her from the proposed meeting, that is, a meeting of the Women's Committee which she had convened for many years, and which was part of her job to service and support. I am also satisfied that the proposal to call on that meeting to draft a constitution and a program of activities was a barb directed at her disempowerment, in circumstances where he had no real foundation for including that proposal in the second resolution. I consider that Mr Noack seized upon the informal comments of Ms Forrestal and Ms Huemmer as providing him with the opportunity to harass Ms Adlam under the guise of his concerns about the Women's Committee highlighted by their comments. I have found above that his concern about the Women's Committee was unfounded and was not genuine. I have also found that their comments did not justify him, as State Secretary, in engaging in the conduct of promoting and moving the second resolution. I think it is clear that he did so to harass Ms Adlam. It may be that his harassment of her was in part motivated by the ongoing factional dispute within the organisation, but his conduct was nevertheless directed squarely at Ms Adlam. 78 In reaching that conclusion, I have not overlooked the argument of counsel for Mr Noack that Mr Noack's involvement in the moving of the motions constituted a purely political action. He contended that, even if the action were directed at Ms Adlam, it was directed at Ms Adlam as a member of an opposing faction, and not as an individual. He argued that, therefore, Mr Noack's conduct did not constitute conduct calculated to harass Ms Adlam, but rather, conduct calculated to harass the faction to which she belongs. I do not accept that contention. For reasons given earlier, I have found that Mr Noack's actions were calculated to harass Ms Adlam. He knew that she, personally, would be excluded from the proposed meeting by the operation of the second resolution. He acknowledged that he knew that she would be distressed by the second resolution. I do not think that in those circumstances his conduct can be justified by reason of factional conflict so that it did not have the character which I have found. 79 My conclusion is confirmed by the course of the second resolution. 80 Mr Noack acknowledged that, in the course of discussion on the second resolution, on two occasions Mr Curry who, as branch President, was presiding at the State Council meeting, cautioned those present that Mr Noack's moving the second resolution and pressing it, and his opposition to the amendment, might infringe the order of the Court. His comment in evidence, in the face of the caution, was

"I thought it was a nonsense. … I couldn't see that I was doing anything wrong, allowing women to meet by themselves, and I made it quite clear to the State Council that that meant that I couldn't attend, that Sally Biddle couldn't attend, that Max Adlam couldn't attend, that women had the right to meet free of any outside interference - the political heavies, if you like - so that they could just meet independently by themselves and have a - I still to this day can't see anything wrong with allowing rank and file women to meet by themselves." 81 He clearly apprehended that the second resolution was to exclude Ms Adlam from that meeting. The proposed amendment to the second resolution, which he opposed, also clearly drew to his attention the effect of the second resolution upon Ms Adlam's capacity to attend that proposed meeting. 82 I regard his response quoted above as fabricated. The implication that the second resolution was somehow even handed because he too could not attend the meeting is not believable. He had never attended such a meeting for any period. Ms Adlam was in an entirely different position in relation to the Women's Committee. The history of his attempts to minimise Ms Adlam's role in the organisation extend back at least to mid 1995. It was, at least in part, in the light of his arranging for the motions concerning the Women's Committee initially put forward to the State Conference on 11 May 1998 that Ms Adlam sought the intervention of the Court. I find myself unable, in all the circumstances, to accept that evidence as truthful. 83 According, I find the charge proved. 84 I will fix a time for the parties to make submissions, and to present any appropriate evidence, as to the orders I should now make. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate: Dated: 8 September 1999 Counsel for the Applicant: Mr S Howells and Mr J Weatherill

Solicitors for the Applicant: Lieschke & Weatherill

Counsel for the Respondent: Mr G Barrett QC with him Mr F Di Fazio

Dates of Hearing: 7, 8, 9, 10 & 11 June 1999