NW v Bechtel (Western Australia) Pty Ltd
[2014] WASC 375
•9 OCTOBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NW -v- BECHTEL (WESTERN AUSTRALIA) PTY LTD [2014] WASC 375
CORAM: MASTER SANDERSON
HEARD: 30 SEPTEMBER
DELIVERED : 2 OCTOBER 2014
PUBLISHED : 9 OCTOBER 2014
FILE NO/S: CIV 2255 of 2014
BETWEEN: NW
Plaintiff
AND
BECHTEL (WESTERN AUSTRALIA) PTY LTD
Defendant
Catchwords:
Pre-action discovery - Application to identify party complaining about plaintiff's conduct - Defendant's policy keeps name of complainant confidential
Legislation:
Nil
Result:
Application dismissed
Category: A
Representation:
Counsel:
Plaintiff: Mr M J Lindsey-Temple
Defendant: Ms L J Nickels
Solicitors:
Plaintiff: Dwyer Durack
Defendant: Norton Rose Fulbright Australia
Case(s) referred to in judgment(s):
The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147
Wyeth v Secretary, Department of Health and Ageing [2009] FCA 313
MASTER SANDERSON: This was the plaintiff's application for pre‑action discovery. The application was brought under O 26A r 4 of the Rules of the Supreme Court 1971 (WA) (the Rules). The plaintiff was attempting to ascertain the identity of a person against whom she might wish to take action. After hearing argument I reserved my decision for a short time and then advised the parties I would dismiss the application. I said I would publish reasons for my decision. These are those reasons.
The application is supported by an affidavit of the plaintiff sworn 5 September 2014. In opposition to the application the defendant relies on an affidavit of Lisa Jean Papandreas sworn 26 September 2014. The following summary of the relevant facts is taken from these two affidavits.
On or about 31 October 2012 the plaintiff commenced employment with the defendant as an 'Administrative Assistant (Quality)'. Initially she was located in the defendant's Perth office. She was later transferred to Onslow to work on the Wheatstone Project. The Wheatstone Project is a large oil and gas development in the north‑west of Western Australia. The defendant has around 3,000 persons employed on the project.
Ms Papandreas says that on or about 25 October 2013 she was informed by Bill Cooper, Site Manager, Bechtel Wheatstone Project of a workplace complaint. Mr Cooper is the most senior person on the project site and his role is to manage the project and all subcontractors on the project. Mr Cooper is the liaison person between all of the project managers of each subcontractor. Importantly he is the appropriate person for the project managers to speak to if they have any issues at all in relation to the project.
Ms Papandreas gives a direct quote as to what Mr Cooper said to her. (As there is no indication that precisely what Mr Cooper said to Ms Papandreas was recorded the quote must in fact be a reconstruction from memory.) The quote reads as follows:
The Project Manager came to see me, he has strong concerns about [NW], it has been reported to him by his employees that she has been exposing her new found assets. She was unbuttoning her shirt and saying 'look at these'. The Project Manager is not happy about this, if it's happening, it's not acceptable. I'm really concerned about her safety and she needs to be moved from the quarry office to H block, pending the outcome of an investigation, can that happen straight away? (Complaint).
Understandably Ms Papandreas was alarmed. She thought there may have been a breach of the Bechtel Code of Conduct (Code). Further Bechtel has an Unlawful Discrimination, Harassment, Bullying and Vilification Policy (Harassment Policy). I will come back to both of these policy documents in due course.
On the same day the complaint was made Ms Papandreas spoke with Ms Sharon Munyard, the project administration supervisor and the plaintiff's manager. Thereafter a meeting took place between the plaintiff, Ms Papandreas and Ms Munyard. Ms Papandreas informed the plaintiff of the report that had been made. The plaintiff denied any such conduct had occurred. She asked who had made the complaint. Ms Papandreas provides in her affidavit what appears to be a direct quote of what she said:
I can't divulge who made the complaints as it is confidential. [NW], I am very concerned if this has happened as you are working in a male dominated environment and this alleged behaviour puts you in an unsafe position. The complaints may be substantiated or not, an investigation has to take place but I have a duty to inform you of the complaints that have been made about you. The Project Manager went straight to Bill, and that is why we are taking it seriously. It is confidential so please do not discuss it with anyone. We will be moving you up to the main office for your own safety with immediate effect.
During the course of the meeting the plaintiff asked on a number of occasions who had made the complaint. Ms Papandreas always gave the same answer - she was not at liberty to say. The plaintiff maintained throughout a denial that she had ever engaged in the conduct complained of. What Ms Papandreas did confirm to the plaintiff was that the complaint was made by an employee of Thiess a contractor on the site. But that is all she disclosed despite being pressed by the plaintiff.
The defendant did undertake an investigation and the workers concerned declined to assist. A further meeting with the plaintiff took place on 5 November 2013. The plaintiff was advised no further action would be taken. She again asked for the identity of the complainant. Ms Papandreas again refused to provide any further information. That was the end of the matter. The plaintiff has subsequently had her employment with the defendant terminated but that had nothing to do with this incident. There are presently before the Fair Work Commission proceedings by the plaintiff against the defendant for unfair dismissal.
The purpose of this application was to allow the plaintiff to find out the identity of the person who had made the allegation against her. It is important in the context of this application to note the persons involved and what was done by each participant. An employee of Thiess complained to the Thiess project manager. There is no suggestion this was not a proper process - if an employee had an issue then it was appropriate he report that issue to the project manager. The project manager then spoke to Mr Cooper. Once again that is appropriate. Mr Cooper was responsible for managing the subcontractors on the project. Mr Cooper then spoke to Ms Papandreas. As the Deputy Human Resources Manager Ms Papandreas was the appropriate person for Mr Cooper to speak to. So all down the line each person followed an appropriate path. What the plaintiff wanted to know was the identity of the employee of Thiess making the original complaint. She wished to take action against him (or her) for defamation.
In passing I should note there is a difference between the plaintiff and Ms Papandreas as to the nature of the complaint allegedly made against the plaintiff. The plaintiff says when she went to the meeting with Ms Papandreas there was also an allegation that she had 'engaged in sex with every man on the project'. Ms Papandreas denies that allegation was ever made against the plaintiff and further denies it was mentioned at any of the meetings which took place. That is a conflict on the evidence which I cannot resolve. But it does not really matter. The plaintiff wants to take action in defamation and she does not know the identity of the person who allegedly defamed her.
Order 26A(3) of the Rules is the in the following terms:
3.Discovery etc. to identify a potential party
(1)This rule applies if a person who appears to have a cause of action against a person (the potential party) wants -
(a)to commence proceedings against the potential party; or
(b)to take proceedings against the potential party in the course of an action to which the person is a party,
but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so.
(2)If there are reasonable grounds for believing that another person (the non‑party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this rule.
(3)The application shall be supported by an affidavit and a copy of both shall be served on the non‑party.
(4)On the application the Court may order the non party, and if the non party is a body corporate, a person having the management of the body to do either or both of the following:
(a)to give discovery to the applicant of all documents that are or have been in the non party's possession relating to the description of the potential party;
(b)to personally attend the Court to be examined in relation to the description of the potential party.
(5)If the Court orders a person to personally attend the Court, it may order the person to produce to the Court any document or object in the non party's possession that relates to the description of the potential party.
(6)The Court may direct that the examination of the person be by a registrar.
(7)A person required to personally attend the Court shall be entitled to the like conduct money and payment for expenses and loss of time as on an attendance at a trial in Court.
The rule requires four conditions to be satisfied before an order can be made. These are:
1.the plaintiff wants to commence proceedings against the potential party;
2.the plaintiff has made reasonable enquiries;
3.the plaintiff has not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against that potential party; and
4.there are reasonable grounds for believing that the non‑party had, has, or is likely to have had, or to have possession of information, documents or any object that may assist in ascertaining the description of the potential party.
In this case all four of those requirements were satisfied. Clearly the plaintiff is upset about the allegations made against her and she wishes to bring an action for defamation. She has made enquiries of the defendant and has been rebuffed. It is true she does not appear to have made any enquiries of Thiess. This was not an issue developed by the defendant's counsel and was not put as a basis for refusing any order. Perhaps if enquiries had have been of Thiess they may have cooperated; but that seems unlikely. In any event I am satisfied the plaintiff has made reasonable enquiries. It is clear the plaintiff has not been able to ascertain a description of the potential party which would allow proceedings to be commenced. Although there was no direct evidence on the point it is reasonable to assume the defendant knows the identity of the employee of Thiess who made the complaint.
It was agreed between the parties that no order for discovery to identify a potential party would be made unless it would be reasonable for the plaintiff to bring a proceeding against the prospective defendant. Both parties were content to rely upon what was said by Le Miere J in The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147. His Honour said [20]:
An order for discovery to identify a potential party is not made unless it would be reasonable for the applicant to bring a proceeding against the prospective defendant. A prima facie case need not be shown, but there must be some indication that the applicant has a cause of action. An order for discovery will not be made if the prospective action is merely speculative: Stewart v Miller [1979] 2 NSWLR 128.
It is clear the plaintiff does not have to demonstrate a prima facie case. It is not even necessary for the plaintiff to establish there is a serious question to be tried: see Wyeth v Secretary, Department of Health and Ageing [2009] FCA 313 [25] (Jacobsen J). Although it is difficult to identify a consistent thread through the myriad of decisions it would seem discovery will not be ordered where the potential action is no more than speculative. Moreover if there is a defence which must succeed there would be no utility in making an order and the application could not succeed.
In this application it was the defendant's position any action for defamation by the plaintiff would be met by a defence of qualified privilege under s 30 of the Defamation Act 2005 (WA). With respect that argument may succeed so far as the Thiess project manager is concerned and in relation to Mr Cooper. But if the Thiess employee who made the allegation had simply made the whole thing up, and had no basis in fact for making the complaint he did, then it is difficult to see how he could avail himself of the defence of qualified privilege. On the facts as they stand at the moment it is difficult to form any view of the likely outcome of any action for defamation taken by the plaintiff. But it does not seem to me to be a case where any action would be wholly speculative and bound to fail or where there is an obvious defence to any claim. The plaintiff has satisfied the threshold in relation to her cause of action.
That leaves the question whether as an exercise of discretion an order ought be made in the circumstances of this case. There is no doubt relief is discretionary - that is made clear by the wording of r 4. Apart from saying the discretion must be exercised judicially there is no guide in the rule itself as to what factors are to be taken into account in the exercise of the discretion. It would appear there is no authority which touches upon this question.
As mentioned above the defendant has both the Code and the Harassment Policy. Copies of relevant parts of these two documents appear as attachments LJP‑1 and LJP‑2 to the affidavit of Ms Papandreas. Dealing first with the Code its thrust is clear from the introduction. That is in the following terms:
Bechtel's Code of Conduct is designed to help you recognize and resolve the ethics and compliance issues that may arise in your daily work. It provides general information and practical advice about the behaviour that is expected of Bechtel employees both on and off the job. This Code of Conduct has been endorsed and adopted by our board of directors and it replaces all previous ethics booklets, including the BSII and BINFRA Standards of Conduct booklets.
The Code is divided into a series of subheadings. For instance there is 'Diversity and Fair Employment', 'How to Raise a Concern' and so on. Under 'How to Raise a Concern' there appears the following:
Your report will be kept confidential to the extent permitted by law and Bechtel's need to fully investigate the matter. (If Bechtel discovers criminal or otherwise improper activity, the company may be required to report such activity to appropriate government enforcement authorities.)
Under the subheading 'Consequences for Violations' there appears the following:
Why do you investigate anonymous allegations? If people are unwilling to give their name, aren't they just trying to get someone else into trouble?
Some employees with genuine concerns are not comfortable identifying themselves. All reports of violations must be taken seriously. If it is determined that an employee has attempted to use the HelpLine to harm or slander another employee or Bechtel through false accusations, the employee may be subject to disciplinary action.
Turning then to the Harassment Policy. There is considerable detail covering the way in which employees should behave. There is then a section covering 'Investigation of Complaints'. Under that section there appears the following:
Confidentiality will be maintained to the extent practicable, except where disclosure is required in order to conduct the investigation, take remedial action and as may be required by applicable law. Bechtel cannot guarantee complete anonymity or confidentiality.
What is clear from these two documents is the defendant has a carefully considered, thorough policy designed to ensure proper behaviour by all its employees. It engages human resources professionals to ensure standards are met and maintained and to deal with complaints. That is the course that should be followed. Ordering discovery in a case such as this would go a long way to undermining the confidentiality regime which is clearly such an important part of both the Code and the Harassment Policy. It would inevitably discourage employees and contractors from making complaints.
Against that there is the argument that to refuse an order for discovery is to encourage frivolous and salacious complaints with no basis in fact. There is no doubting the strength of that argument. It is a matter of weighing the competing interests in the balance. If for instance in this case in addition to the Thiess employee making a complaint to his immediate superior he had also made the allegations more generally - perhaps in the mess - then the situation would have been entirely different. Each case is of course dependent on its own facts. But here all the evidence suggests compliance with the defendant's Code and Harassment Policy. Without more I am not satisfied discovery ought be ordered. The defendant is clearly a responsible employer. To undermine their efforts by ordering discovery would not be in the interests of the employees or of the defendant.
For these reasons I dismissed the plaintiff's application. I will hear the parties as to costs.
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