The Federal Court has dismissed a claim that BigLaw firm MinterEllison improperly contacted a woman linked to a sexual harassment matter brought against the state of Western Australia.
Justice Darren Jackson refused to make orders that would have narrowed MinterEllison’s communication with people connected to a sexual harassment, discrimination and victimisation complaint brought against its client, the state of Western Australia.
The applicant, Bronwyn Hendry, sought to restrain the firm from communicating with witnesses or persons named in her statement of claim and amended statement of claim, in a manner “that could influence, interfere or intimidate those persons”.
Hendry also tried to prevent MinterEllison from releasing the contents of her statement of claim and amended statement of claim to non-parties while they were restricted under the state’s application for suppression or non-publication orders, which have not yet been made.
Seven days prior to Hendry’s application, an associate at MinterEllison contacted a former employee of the Department of Justice to advise that she had been named in the original statement of claim.
Asked whether the former employee wanted to know what had been written about her, she replied: “I absolutely want to know.”
Hendry said the former employee contacted her later that day and was allegedly “upset, confused and angry” about MinterEllison’s contact.
She claimed MinterEllison “instilled fear into a potential witness, or a person who was involved in the matter for other reasons” by “issuing unsolicited emails, coercive questions and misleading privilege”.
The latter was in reference to the “subject to legal professional privilege” subject line; however, that submission fell away at the hearing.
Hendry submitted that since the state foreshadowed a suppression order application, the document was “effectively restricted” and it was inappropriate for MinterEllison to disclose its contents.
In oral submissions, Hendry acknowledged the state was entitled to contact potential witnesses, but that it was “how they went about it that caused her concerns”. The court said Hendry seemed to suggest the firm needed the leave of the court or herself before the contact.
While an application for suppression may exist, Justice Jackson said it was “not at all clear” how the contact would have been inappropriate.
“Given that the former employee is named in the statement of claim, it can be inferred that MinterEllison was contacting her in connection with the application for a suppression order, potentially to gather evidence to support that application,” Justice Jackson said.
“There is no suppression order to breach at that moment, but even if there was, the email indicates that MinterEllison’s communications with the employee are likely to have been for the purpose of the suppression orders sought, not inconsistent with them.”
Although he acknowledged the former employee became upset following the email, Justice Jackson said there was no evidence this was because the firm had “said or did anything to instil fear in her”.
It was likely the details contained in the statement of claim had been the reason for the employee’s mood, Justice Jackson added.
Further, Justice Jackson noted there was no rule against a party to litigation making unsolicited communication with a witness or an interested third-party for the purposes of the proceeding.
“To the contrary, litigation will often require such communications. The leave of the court to engage in such communications is not required, nor is there any requirement for the party to confer with other parties before doing so,” Justice Jackson said.
Ultimately, Justice Jackson found that Hendry’s evidence failed to establish that the firm was “improper, inappropriate or untoward”.
The case: Hendry v State of Western Australia (No 2) [2025] FCA 956.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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