Noack v Adlam No. Scgrg-98-661 Judgment No. S6788
[1998] SASC 6788
•20 August 1998
NOACK v ADLAM
[1998] SASC 6788
Full Court
Coram: Millhouse, Perry & Nyland JJ
Millhouse J
Appeal from a judge of the District Court.
The appellant sued the respondent in defamation. The defamation was an allegation that the respondent had been sexually assaulted by the appellant on Friday 10th May 1996. The respondent counterclaimed for damages arising from the alleged assault. The learned judge found for the respondent on the counterclaim and awarded her $5,000 in damages.
The incident happened at the offices of the South Australian branch of the Australian Manufacturing Workers Union (AMWU). The appellant is the General Secretary of the Union. The AMWU is an amalgamation of a number of unions. Of particular significance to this case are two divisions of the union: the Vehicles Division and the Metal Workers Division. The appellant has close ties to the Vehicles Division. The respondent’s boyfriend Tumbers is closely aligned to the Metal Workers Division. Within the AMWU there have been internal politics and power struggles, one such struggle being between Tumbers and the appellant for the position of General Secretary of the Union.
The learned judge found that a number of witnesses had taken sides or were biased, that the witnesses were unable to separate their evidence from their allegiances, be they personally to the appellant or respondent, or to the particular division of the Union to which they respectively belonged.
The respondent is an officer of the Union. She was the head of the Technical and Supervisory Division. She was also the Equal Opportunity Officer of the Union.
The appellant and respondent have known each other for some time. They first met in 1988. A personal relationship developed between them in the latter half of that year. During the relationship the appellant left his wife. The relationship lasted a number of months. On 28 February 1989 the respondent told the appellant that the relationship was finished and that she had formed a deep relationship with Tumbers, his political adversary.
The respondent gave evidence that since their relationship finished, the appellant had borne a grudge against her for nine years, that he regularly exhibited personal animosity towards her. Various other witnesses gave evidence to the same effect.
The learned judge had to consider whether the past "relationship evidence" was admissible. His Honour found that it was, as evidence to support the allegation in the pleadings, that the appellant assaulted the respondent with the intention of humiliating and intimidating her and through her Tumbers.
His Honour also found the evidence admissible to explain conduct:-
“I consider that evidence of the relationship between the plaintiff and defendant and their conduct towards one another is properly admissible as an integral part of the history leading up to the alleged conduct which is directly relevant to the causes of action. ... In my view, it is evidence from which an inference may be drawn in respect of the conduct of the plaintiff and the defendant on the 10th May, 1996. See: Wilson v The Queen.
However His Honour went on to say:-
“ Having considered the evidence, I conclude that it does not assist me in this case. ... Improper motive in respect of this action, could be attributed to either of them, and I am not assisted in deciding the issues in respect of liability by the relationship evidence."
Before considering the details of the incident on the 10th May 1996, the scene should be set by reference to another incident which had occurred a week earlier, on the 3rd May 1996. On this day the AMWU had its State Conference. A melee occurred. The main participants were McMahon, a close friend of the appellant, and Tumbers. The respondent, coming to the aid of her boyfriend, jumped on the back of one McDonald who later made a complaint against the respondent. The police were called to investigate.
Approaching the 10th May 1996, there was more tension than usual at the offices of the AMWU. The police investigation was continuing and there had been reports in the press.
On the morning, 10 May 1996, a demonstration was threatened. The purpose of the demonstration was to criticise the conduct of Tumbers and to destabilise his position.
At about midday the respondent received information that the demonstration would not proceed after all. She went back to her office, on the eastern side of the floor of the building on which she, the appellant, Tumbers, Mowbray and others had their offices. She decided to go to Mowbray’s office to tell him the demonstration was off. The respondent walked west along the southern corridor. The respondent almost collided with the appellant at the junction of a short passageway out of which he was coming. Here the incident occurred.
The respondent said she was surprised and shocked by almost colliding with the appellant. The learned judge describes the respondent’s account:-
“She started to continue on when she heard the plaintiff singing 'Under Pressure' and at the same time he jabbed her into her private parts. As the plaintiff was saying 'Pressure' he jabbed his fingers up and the defendant felt his hand and fingers both on her buttocks and vagina. The jabbing action was through her clothing. She said that she ran forward. She stopped, turned and saw the plaintiff heading in a northerly direction and laughing. She pointed at him and said in a loud voice, 'Don’t you ever touch me you ugly shit'. He continued to laugh.”
The appellant alleges that the respondent has defamed him with this account of events. The respondent’s defence was justification: she counterclaimed for damages for indecent assault.
The appellant’s account is described by the following passage of the trial judge:-
“... when he arrived at the door into the building, he had his keys in his hand and he was carrying a bag. He put his bag down, opened the door and as he opened it, he saw the defendant walking along the corridor towards Mowbray’s office. At that time he was just entering the floor. He picked up his bag. He said the defendant glared at him, and then walked to the junction where the two corridors met. When he got to the junction, the defendant was some distance away, walking in a westerly direction. He started to sing a song titled 'Under Pressure.' He hummed the tune. He did so audibly. It is obvious that he wanted to antagonise the defendant. He said she turned and pointed her finger at him and said in an angry voice words to the effect 'You are under pressure', and she then commented that she did not like his shirt.”
The learned judge found for the respondent saying, "in respect of her evidence of the incident on the 10th May, I consider that her evidence was both truthful and accurate."
This is the first matter argued by the appellant. The appellant challenges this finding of fact. The other matter which he argued is that the learned judge did not give enough weight to the evidence of two witnesses, Miss Carly Kempster and Miss Debra Giffin. I consider the matters in the same order.
The appellant argues that the trial judge should not have made the finding that the respondent’s account of the incident was truthful and accurate. He contends that the judge did not make his decision by relying to any extent on the credit of the respondent or for that matter of the appellant. His counsel, Mr Fazio Di Fazio, referred to a number of passages in the judgment which illustrate that the trial judge did in fact have some doubts over the credibility of the respondent:-
“ Both parties have attempted to minimise their own conduct and maximise the misconduct of the other. The manner in which they have conducted themselves toward the other brings no credit on them and I conclude that both have indeed coloured their evidence for these reasons.”
Counsel for the respondent, Mr Paul Heywood Smith, was equally keen to direct the Court to various passages which cast doubt on the credibility of the appellant. He argued that the witnesses were not of equal credit.
The trial judge saw the appellant in the witness box for three days and the respondent for four days. He was in the best position to assess their respective credibilities. The trial judge also had the advantage of attending a view of the floor on which the incident occurred.
The finder of fact is always in the best position to assess the credit of witnesses. An appellant court is unwilling to upset findings of fact. The High Court in Abalos v Australian Postal Commission [1990] 171 CLR 167 @ 178 said:-
“... where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied ‘that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion’: Watt or Thomas v Thomas."
Mr Di Fazio argued that the trial judge did not base his decision on the credit or demeanour of the appellant and respondent because he found each to be unreliable.
He referred to Taylor v Johnson (1982-1983) 45 ALR 265 and in particular to Mason ACJ, Murphy and Deane JJ @ 267:
“In the view we take, the members of the Court of Appeal were correct in accepting his Honour’s comments as being intended to convey that, in a position where he had derived no significant assistance from observing and hearing the witnesses give their evidence, he had resolved the matter by analysis of the evidence before him. That being so, we consider that the members of the Court of Appeal were correct in taking the approach that, subject to giving due weight to the conclusions of the learned trial judge, they were entitled to determine the matter for themselves.”
Since the early 1980’s the law has moved in rather a different direction, more towards the view expressed by Dawson J in dissent @ 275:-
“Even having regard to what was said by the trial judge, in my view it was entirely inconsistent with accepted principle for the Court of Appeal to have concluded, as in effect it did, that one of the parties was untrustworthy in his dealings and untruthful in his evidence, without having seen or heard him and without regard to the fact that the trial judge found that he gave the appearance of a truthful witness. That finding of the trial judge was entitled to weight and it is apparent that the Court of Appeal gave it none.
What it did was to construct a version of events for itself from the evidence which it regarded as the more probable entirely without regard to, indeed inconsistently with, the finding of the trial judge as to the demeanour of the witnesses.”
In Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 @ 350 Samuels JA in the NSW Court of Appeal sought to distinguish and restrict the majority decision in Taylor v Johnson:-
“He or she may do so for reasons other than an assessment of the demeanour of the witness. Yet, if the judge fails to articulate the reason with sufficient clarity or force (or perhaps even despite the articulated reason), we must now presume that the decision was based at least in part on an assessment of the demeanour of the witness.
...
It may be therefore that it is only in the circumstances that existed in Taylor v Johnson (1983) 151 CLR 422 that an appellate court may substitute its own findings of primary fact for those of the trial judge.”
This view has more recently been reinforced in the High Court case of Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 @ 479 per Brennan, Gaudron and McHugh JJ:-
“ More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.”
It is extremely difficult to upset on appeal, findings of fact. Yet the whole of Mr Di Fazio’s argument was an attempt to do so. I do not accept that the learned judge “failed to use or has palpably misused his position." Given the evidence presented at trial, the learned judge was quite entitled to reach the conclusion which he did. He saw both the appellant and respondent in the witness box for a long time, he made meticulous assessments of the other witnesses. He placed special importance on the witnesses Herd, Brazil, Murray and Mowbray, finding them to be convincing. Nor is there reason to think that he overlooked the evidence of Carly Kempster and Debra Giffin, as Mr Di Fazio argued. I shall come back to their evidence later.
The learned judge placed importance on the fact that the respondent complained immediately. The evidence of Mowbray and Murray shewed that the defendant was, "genuinely agitated when she first entered Mowbray’s room."
His Honour found:-
“ The evidence of the defendant’s statement to Mowbray and Murray is admissible to show consistency. It is relevant in assessing her credibility. Just as it would have been admissible to lead evidence that she failed to complain at the earliest opportunity, the evidence that she did make a complaint and that complaint was made within a short period after the alleged assault, is evidence which shows consistency in her conduct.”
The appellant did not contest the evidence of Mowbray and Murray that the respondent was distressed when she entered Mowbray’s office. The appellant put to us that the respondent was distressed by a combination of factors on that day: the aftermath of the melee on the 3rd May was still having its effect, the investigations into her own behaviour as well as into that of Tumbers were of concern, the proposed demonstration had her uneasy and the taunt of “Under Pressure” simply tipped the respondent’s nerves to the point that she ran into Mowbray’s office in distress and had made up the allegation of assault. This account of events had been put to the learned trial judge, as it was to us. In terms of "glaringly improbable", I should think this alternative account more improbable than the account which the judge accepted. I agree with him that the mere singing of the song would not have caused this distressed state. His Honour concludes:-
“The defendant, in the past had been quite capable of dealing with verbal abuse and of responding to it. In this instance, I find her distress was caused by the conduct of the plaintiff, as she has alleged it."
Furthermore, if one considers the geography and small area of the workplace where both the respondent and appellant worked, it is hard to imagine in the course of their day-to-day activities they would not see each other from time to time. One may assume that the events of the week and their political and personal antagonisms were surfacing almost every time they saw each other. One would expect that they had seen each other in the week since the melee and if there had been a reaction to the events surrounding the State Conference that it was likely to have come earlier. However I need not, indeed I should not, go far into the evidence except to show that the learned judge has not “failed to use or has palpably misused his advantage."
Lastly, the appellant contended that the learned judge has not given any indication that he relied to any extent on the demeanour of the respondent. Mr Di Fazio went on to argue that this meant that credibility and demeanour had been treated together by the trial judge.
I refer again to the High Court case of Abalos, later approved in Devries, in particular to the following passage of McHugh J @ 179:
“ As I pointed out in Jones v Hyde, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue.”
This is clearly applicable here. Simply because His Honour did not mention demeanour does not mean that it did not influence his decision to accept one version of events over another. It is clear from his decision that he must have found the respondent to be worthy of sufficient credit to find in her favour on the basic issues. It is true that His Honour found both parties were prone to exaggeration. This is not uncommon. It simply makes the trial judge’s job more difficult in deciding who he is going to believe on what.
In any case His Honour makes comments which shew that he has considered the respondent’s demeanour and credibility, and in doing so, has accepted some of her evidence while not accepting other parts of it:-
“ Turning to the defendant’s evidence, I consider that at times her evidence was coloured by her deep dislike of the plaintiff. She readily admitted to certain sexual comments she made about the plaintiff. She denied that she had referred to the plaintiff as being impotent. I do not accept her evidence in that regard. On the other hand, in respect of her evidence of the incident on the 10th May, I consider that her evidence was both truthful and accurate.
...
However, having heard the plaintiff’s [sic] evidence and having considered all the surrounding circumstances, I accept her description of the events of the 10th May, and in particular of what occurred at the junction of the two corridors.”
The trial judge did not palpably misuse his advantage. The outcome was not glaringly improbable. The judge was open to find that the respondent’s evidence was truthful and accurate. So much for the first matter argued: I turn now to the second.
The witnesses, Miss Kempster and Miss Giffin, were working a very short distance from where the respondent said she was assaulted. During the altercation, the appellant admits singing, “Under Pressure." According to the appellant, the respondent replied by shouting something to the effect "You are under pressure" and that she didn’t like his shirt. The respondent says that her retort was, “Don’t ever touch me you ugly shit." On either account, there was a loud, angry exchange of words.
The appellant argues that the Misses Kempster and Giffin were so close to the incident that they must have heard what was going on, yet they gave evidence that they did not hear anything. The appellant argues that this is only consistent with the remarks not having been made. Not so.
The biggest obstacle facing the appellant on this argument is, not only did the Misses Kempster and Giffin not hear the angry retorts of the respondent but they also did not hear the admitted taunting of the appellant singing, “Under Pressure." The respondent said that she would have expected Miss Kempster and Miss Giffin to hear her at the end of the corridor, yet the two women when asked what they heard or saw that morning could only refer to various events which had occurred after the alleged incident. Miss Kempster remembers seeing the respondent walk towards the appellant’s office, she heard yelling as the respondent left the appellant's office. A short time later she saw Mowbray and the respondent leave Mowbray’s office and go into the appellant’s office. Miss Giffin remembers even less. During examination when asked what she saw or heard that morning she replied, “I didn’t see anything, all I heard was just lots of yelling." They recall comments related to the respondent confronting the appellant and then going to Mr Mowbray’s office. This suggests that at the place where the incident occurred, the two women were simply not in a position to hear noises down that corridor. There are many reasons why two women working on a reception desk may not hear things going on round them, for example they could have been answering the telephone or they may have been talking to each other.
The two ladies do remember hearing various shouted comments as the respondent confronted the appellant and then went into Mowbray’s office. It is not unusual for people to tune into an event halfway upon hearing noise or as in this case, movement which included the opening and closing of doors. Miss Kempster in her evidence when asked, "did something attract your attention" replied:-
“Yes, Max walking towards Paul Noack’s office, I can’t recall exactly what got my attention, but she walked in there, put something on his desk or slapped her hand against his desk then left his office saying, ‘You’re a coward, Mick’s going to get you’ and walked back down the corridor towards Brian Mowbray’s office.”
The scene described by the witnesses, Miss Kempster and Miss Giffin, is clearly after the incident. It was clear from the evidence that the incident occurred in a completely different locality to that which they describe.
The law is clear as to the level of doubt an appellate court must have to overturn a finding of fact of a trial judge. The finding must be "inconsistent with facts incontrovertibly established by the evidence" or "glaringly improbable." The learned judge sufficiently addressed the evidence of the Misses Kempster and Giffin:-
“ Neither Kempster nor Griffin observed or heard anything relating to the occasion when the plaintiff and defendant first confronted one another as the defendant was walking along the central corridor and before she entered Mowbray’s office on the first occasion. Even though the plaintiff described the position of the defendant when she angrily responded to his taunt, as a relatively short distance from the reception area, it seems that the defendant’s response to the plaintiff’s song, 'Under Pressure' was not heard by, or did not draw the attention of Kempster or Giffin.”
After having read all the evidence of Miss Kempster and Miss Giffin it is clear that the learned judge has not come to a decision on the evidence which is glaringly improbable. The two witnesses did not hear the appellant singing, nor did they hear the respondents retort. There are explanations for this. Mr Di Fazio’s argument about the evidence of these two ladies fails.
I suggest that the appeal be dismissed.
Perry J
The appellant makes a detailed attack on the central findings of fact reached by the learned trial judge after a long and bitterly contested trial. Those findings, set out in a carefully expressed judgment, pivot on the trial judge’s view of the credit of the appellant and the respondent, and to a lesser extent, of the other witnesses.
As Millhouse J has pointed out, the learned trial judge had the inestimable advantage of seeing and hearing the parties and their witnesses. It was clearly open to him to prefer the evidence of the respondent as to the circumstances of the alleged assault upon her.
No case has been made out by the appellant which would justify interference by this Court.
I agree that the appeal should be dismissed.
Nyland J:
I agree that the appeal should be dismissed for the reasons expressed by Millhouse J.
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