"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: