NW v Bechtel (Western Australia) Pty Ltd - [2014] WASC 375

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'.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 375
Decision Date: 9 OCTOBER 2014

CaseChat Overview and Summary

In the matter of NW v Bechtel (Western Australia) Pty Ltd, the plaintiff sought pre-action discovery from the defendant to identify a party who had made a complaint about the plaintiff's conduct. The plaintiff alleged that the complaint was malicious and sought to use it to identify the party to sue for defamation. The defendant refused to disclose the name of the complainant, citing its policy of maintaining confidentiality in such matters.

The primary legal issue in the case was whether the plaintiff was entitled to pre-action discovery to identify the party who had made the complaint. The court needed to balance the plaintiff's right to access information relevant to their potential defamation claim against the defendant's policy of maintaining confidentiality in complaints. The court also had to consider the public interest in protecting the identity of complainants and the potential for abuse of the legal process if the plaintiff were allowed to identify and sue the complainant for defamation.

The court found in favour of the plaintiff, holding that the defendant's policy of maintaining confidentiality in complaints was not sufficient to prevent the plaintiff from obtaining pre-action discovery. The court held that the plaintiff had a right to access information relevant to their potential defamation claim, and that the defendant's policy did not outweigh the plaintiff's right to access that information. The court also held that the public interest in protecting the identity of complainants did not outweigh the plaintiff's right to access information relevant to their potential defamation claim. The court ordered the defendant to provide the plaintiff with the name of the party who had made the complaint.

Orders