FEDERAL COURT OF AUSTRALIA
Adlam v Noack [1999] FCA 1606
CONTEMPT – penalty – whether contemnor should be cross-examined on hearing for penalty – nature of contempt proceedings – whether contemnor could be questioned in relation to a proposed settlement of overall dispute– whether the fact that fine may be paid by third parties relevant to determination of penalty – factors to be considered in determining penalty – circumstances in which “victim” of contempt could be awarded costs.
INDUSTRIAL RELATIONS – whether finding of contempt “prescribed offence” under Workplace Relations Act 1996 (Cth).
Federal Court Rules O 40 r 5, O 40 r 5(2)
Workplace Relations Act 1996 (Cth) s 347
Conciliation and Arbitration Act 1904 (Cth) 197A
Evidence Act 1995 (Cth) s 17Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 followed
Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169 followed
Deputy Commissioner of Taxation v Hickey [1999] FCR 259 followed
Australian Securities & Investments Commission v Matthews [1999] FCA 803 followed
Australian Competition & Consumer Commission v Goldstar Corporation Pty Ltd (Drummond J, 6 November 1998, unreported) followed
Viner v Australian Building Constructions Employees’ and Builders Labourers’ Federation (1981) 56 FLR 5 applied
Gregory v Philip Morris Ltd (1987) 74 ALR 300 applied
W R Carpenter & Co Pty Ltd v Wollongong Instant Scaffolds Pty Ltd (1992) 36 FCR 10 distinguished
Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 considered
Witham v Holloway (1995) 183 CLR 525 considered
Hinch v Attorney-General of Victoria (1987) 164 CLR 15 considered
Durack v Gallagher (1982) 44 ALR 272 considered
Gallagher v Durack (1982) 44 ALR 477 considered
Gallagher v Durack (1983) 152 CLR 238 considered
Matthews; Real Tech Systems Integration Pty Ltd v Meuross (Lehane J, 21 November 1997, unreported) considered
LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 applied
Australian Securities and Industries Commission v Matthews [1999] FCA 803 applied
Hudson v Australian Competition & Consumer Commission [1999] FCA 891 considered
McIntyre v Perkes (1988) 15 NSWLR 417 consideredCAROLYN JENNIFER ADLAM v PAUL NOACK
SG 91 OF 1998
MANSFIELD J
23 NOVEMBER 1999
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 91 OF 1998
BETWEEN:
CAROLYN JENNIFER ADLAM
ApplicantAND:
PAUL NOACK
RespondentJUDGE:
MANSFIELD J
DATE OF ORDER:
23 NOVEMBER 1999
WHERE MADE:
ADELAIDE
THE COURT DECLARES THAT:
(1)Paul Noack committed a contempt of the Court by breaching paragraph 4 of the orders of the Court made on 22 July 1998 not to engage in any conduct calculated to harass Carolyn Jennifer Adlam pending the hearing and determination of the rule to show cause made on 15 July 1998 in that he promoted and moved on 7 October 1998 the purported resolution of the South Australian State Council of the Amalgamated Miscellaneous Workers Union of that date concerning the Women’s Committee of the South Australian branch of the Amalgamated Miscellaneous Workers Union.
AND…
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- Adlam v Noack [1999] FCA 1606
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- [1999] FCA 1606
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CaseChat Overview and Summary
The legal issues before the court included whether Noack's actions constituted contempt of court and, if so, what the appropriate penalty should be. The court examined the nature of contempt, distinguishing between civil and criminal contempt, though it did not definitively conclude on the applicability of certain provisions of the Workplace Relations Act 1996 to the contempt charge. The court also deliberated on the appropriate penalty for the contempt committed, considering the distress and upset caused to Adlam by Noack's conduct.
The court found that Noack did indeed commit contempt of court. It was a deliberate act of harassment directed towards Adlam, despite explicit warnings. The court held that contempt of court is a serious matter that undermines the justice system and must be addressed appropriately. Given the significant distress caused to Adlam, the court ordered Noack to pay a fine and cover Adlam's costs related to the proceedings. The court emphasized that such penalties serve to uphold the integrity of the court's orders and protect the parties involved in litigation.
Orders
Orders of the court
(2) Paul Noack pay a fine of $7.500.
(3) Paul Noack pay to Carolyn Jennifer Adlam her costs of and incidental to the notice of motion of 13 October 1998 to be taxed on a solicitor and client basis, to the intent that she should recover from Paul Noack indemnity for her costs except to the extent that they may have been unreasonably incurred and to the extent that they, or any items of them, may be of unreasonable amount.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
I do not propose to depart from the usual method of recording that a contempt of Court has been committed, that is, by declaring the contempt found to have been committed: see eg. Lindgren J in LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 (“LED Builders”); Sackville J in Australian Securities and Industries Commission v Matthews [1999] FCA 803. The applicability of Pt IX Div 6 of the Workplace Relations Act 1996 was not fully argued. Moreover, as appears below, Mr Noack is no longer employed as an officer of the organisation and does not intend to stand for any elected office. Accordingly, I do not consider it necessary or appropriate to resolve the question. Division 6 contains ss 227-230, and deals with disqualification from office. Counsel for Mr Noack did not submit that the existence of Div 6 of that Act, even if it arises in the present circumstances, should affect the nature of the order which I make on this charge. Consequently, I do not need to have regard to the possibility of the consequence which Ms Adlam says will flow from “a conviction” for contempt. In Witham, the High Court discussed the difference between civil and criminal contempt (per Brennan, Deane, Toohey and Gaudron JJ at 530-534, and per McHugh J at 538-539). As I observed earlier in these reasons, the majority judgment described the differences upon which that distinction is based as being “in many respects, illusory” (at 534). It is a matter better left for consideration when the circumstance directly arises as to whether s 227 does apply to an order declaring a person to have committed a contempt of court in circumstances such as the present.Consideration of penalty Contempt of court is a serious matter. If parties to litigation do not obey orders of the court, that strikes at the system of administration of justice. It impedes the just resolution of issues between the parties. It must be punished in a significant way. Counsel for Ms Adlam urged that the appropriate relief is a term of imprisonment. That is one option available to the Court. In Hudson v Australian Competition & Consumer Commission [1999] FCA 891, Spender, Burchett and Hely JJ refer to a number of contempt cases in which such an order as been made. Ms Adlam has described the very significant distress and upset which she has experienced by reason of Mr Noack’s conduct towards her over a considerable period. The contempt is but one piece of conduct contributing to that distress and upset. As I have found that the contempt was directed at harassing her, I take into account that it has added to her distress and upset. The position of the person who was to be protected by the order of 22 July 1998 has not, by reason of the contempt, been so protected. I have found the contempt to have been a deliberate one. It was committed in the face of cautions given by others at the State Council meeting of 7 October 1998. It was manipulative in the sense (as I found) that Mr Noack seized upon certain informal comments of Ms Forrestal and Ms Huemmer as providing the opportunity to harass Ms Adlam.