Federal Court of Australia

Hendry v State of Western Australia (No 2) [2025] FCA 956

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm AWST on 6 August 2025, the first respondent must and any other party who wishes to may, file and serve a written outline of submissions of no more than 5 pages in length, in relation to the stay application.

2.    Paragraphs 3 to 9 of the orders made on 2 July 2025 are vacated.

3.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Subject to paragraph 2 below, the proceeding is stayed pending the final determination of the proceeding in the Magistrates Court of Western Australia, WorkSafe Commissioner v State of Western Australia BU 5928 of 2024, or further order of the Court.

2.    The first respondent's interlocutory application filed on 4 August 2025 is not stayed.

3.    The parties have liberty to apply on 7 days' notice to each other party.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    At a case management hearing on 30 July 2025 I declined to make certain orders sought by the applicant, Ms Hendry. This judgment gives my reasons for so declining.

2    Also by orders made on 30 July 2025, I directed the first respondent, the State of Western Australia, to file submissions in support of its interlocutory application for a stay of the proceeding. Those submissions were filed on 6 August 2025. No other party took up the opportunity to file submissions on the stay. But although it was unopposed, given its significance for the matter I consider it appropriate to give reasons as to why I have decided to order a stay.

Strike out

3    The first order Ms Hendry sought at the hearing on 30 July 2025 was for the dismissal without hearing of a strike out application brought by the State.

4    There are four interlocutory applications outstanding before the Court at the moment. They include an application filed by the State on 29 April 2025, which seeks two substantive orders (or sets of orders). The first order sought is that the proceeding be stayed pending the final determination of a proceeding in the Magistrates Court of Western Australia, WorkSafe Commissioner v State of Western Australia BU 5928 of 2024 (WorkSafe Prosecution). This criminal prosecution is the basis of the stay, as addressed below.

5    The second set of substantive orders the State seeks commences as follows:

Upon final determination of WorkSafe Commissioner v State of Western Australia BU 5928 of 2024 or, if the proceedings are not stayed …

Then the orders sought are that: an amended statement of claim which Ms Hendry filed on 18 December 2024 be struck out in its entirety (with leave to replead), alternatively numerous specified paragraphs of that statement of claim are struck out (with leave to replead); and that the respondents are not required to file defences until further order.

6    At the case management hearing on 30 July 2025, Ms Hendry pressed for an order that would have summarily dismissed the strike out aspect of the State's application. In an email submission sent before the hearing (in which she requested that a directions hearing be held), Ms Hendry advanced as reasons: that the State did not confer before raising the strike out; and that the State has not filed any further affidavits in support of the strike out application, despite having been ordered to file and serve any further affidavits in support of its application of 29 April 2025 by 23 July 2025, so that it has failed to prove the need for a strike out.

7    Ms Hendry essentially repeated these points in oral submissions made at the case management hearing. She added to them a submission that the State had framed the stay and the strike out applications in the alternative. While Ms Hendry did not quite express it this way, I understood the submission to be that, having framed the application that way, and having evidently chosen to pursue the stay, the State should be taken to have abandoned the strike out.

8    Despite these submissions, I decided not to dismiss the strike out application for the following reasons.

9    First, in this Court, while a lack of conferral may sometimes be relevant to the exercise of a discretion, it is not by itself a reason not to entertain an application. There was no proof of such delinquency in conferral as to justify shutting the State out from putting the concerns about the statement of claim that it seeks to raise.

10    Second, there is no need to file evidence in support of an application to strike out part or all of a pleading. In fact, usually it will not be appropriate to adduce evidence on such an application. A strike out application is usually based on deficiencies in the pleading said to be apparent on its face: see Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [8]-[12] (Kenny J); cf. Rules of the Supreme Court (WA) O 20 r 19(2).

11    Third, properly construed, the State's application is not in the alternative. The preliminary words quoted above implicitly acknowledge that if a stay is granted, then there will be no need to proceed with the strike out application while the stay is on foot. Either the Court would not grant a stay, or a stay would be granted which would end upon final determination of the WorkSafe Prosecution. In either event, the strike out will then proceed. Since, as set out below, a stay will be granted, it is the second of these possibilities that will apply. The State's strike out application will be stayed along with the rest of the proceeding (save for a suppression application mentioned below), but will revive once the stay has ended.

Contact between the State and third parties

12    At the case management hearing on 30 July 2025, Ms Hendry also sought the following orders (numbered as in her minute of proposed orders):

7.    Orders, preventing legal representative of Minter Ellison's, (representatives of the First Respondent) from releasing the contents of the applicants Statement of Claim filed on the 25 June 2024, and Amended Statement of Claim 18 December 2024, to non-parties, while the documents are restricted under an application for suppression/non-publication application.

8.    Orders to restrain legal representative of Minter Ellison's, (representatives of the First Respondent) from communicating with witnesses, or named persons in the, applicants Statement of Claim 25 June 2024, and Amended Statement of Claim filed 18 December 2024, in a manner that could influence, interfere or intimidate those persons.

13    In support of these orders, Ms Hendry relied on an affidavit she affirmed on 27 July 2025, in which she deposed to the following matters. These essentially matched points that Ms Hendry made in her email to my Chambers requesting a directions hearing:

(1)    In response to an application by a third party for access to inspect the originating application filed 19 November 2023 and the statement of claim filed 25 June 2024, the solicitors for the State, Minter Ellison, notified the Court and the parties that the State objected to the release of those documents and would seek a suppression order over them.

(2)    An email from my Chambers on 17 July 2025 effectively gave the State 14 days to make the application (it had sought 28 days), with that period expiring on 1 August 2025.

(3)    On 23 July 2025 an associate at Minter Ellison sent an email to a former employee of the Department of Justice who is named in the statement of claim. The email said:

By way of introduction, MinterEllison acts for the State of Western Australia (Department of Justice) in Federal Court proceedings commenced by Bronwyn Hendry. As you may be aware, Ms Hendry has made allegations that she was subject to sexual harassment, discrimination and victimisation during her employment with the Department at Bunbury Regional Prison.

An application has been made by a member of the public who is not a party to the proceedings (meaning they are not involved in the claim) for access to documents that have been filed in the Federal Court proceedings by Ms Hendry. One of these documents the non-party is seeking access to is Ms Hendry's statement of claim. The State has objected to the release of this document to the non-party. The Federal Court has not yet made a decision on the application. The Federal Court may ultimately agree to provide a copy of this document to the non-party.

You are receiving this email because your name is mentioned in the statement of claim. Ms Hendry has referred to you and your purported evidence about [the fourth respondent]. If you would like to know the substance of what Ms Hendry has said about you in the statement of claim, please give me a call on the number in my email signature below.

(4)    The former employee replied on the same day saying 'I absolutely want to know'.

(5)    The former employee spoke to Ms Hendry later on that same day. According to Ms Hendry, the former employee told her she had received the email and later a telephone call from the associate at Minter Ellison. According to Ms Hendry, the former employee was upset, confused and angry about Minter Ellison contacting her. She asked how they got her personal email address. During the call, the Minter Ellison associate read to the former employee paragraphs from both the statement of claim of 25 June 2024 and Ms Hendry's subsequent amended statement of claim. This included details about allegations which the former employee had communicated to Ms Hendry that are described in the statement of claim. The associate also read words from a text message the former employee had sent to Ms Hendry about an alleged incident involving the fourth respondent.

(6)    The former employee was emotional and distressed during the call with Ms Hendry and indicated that she does not now want to be involved in the matter.

14    At the case management hearing of 30 July 2025, the State did not challenge this evidence, and indicated that it did not wish to adduce any evidence in response.

15    Ms Hendry's affidavit also contained what was, in effect, a submission that Minter Ellison had instilled fear into a potential witness, or a person who was involved in the matter for other reasons, including by 'issuing unsolicited, emails, coercive questions, and misleading privilege'.

16    This last is a reference to the fact that the email of 23 July 2025 from Minter Ellison to the former employee was headed 'Subject to legal professional privilege'. Ms Hendry submits (albeit in her affidavit) that this was misleading because, she says, legal professional privilege 'protects confidential communications between a lawyer and their client made for the purpose of seeking or giving legal advice'. According to a submission in Ms Hendry's affidavit, 'Deliberately advancing a false claim of legal professional privilege and misleading, and can be intimidating for members of the public, unfamiliar with legal jargon'.

17    However, at the case management hearing of 30 July 2025, Ms Hendry acknowledged that privilege can also attach to communications between legal advisers and a person such as the former employee. This is correct; for example litigation privilege, as it is sometimes called, can apply to communications between a lawyer and a witness. But Ms Hendry asserted that the former employee had waived the privilege by forwarding the email from Minter Ellison to her. That was incorrect, as any legal professional privilege attaching to the email would have been for Minter Ellison's client to waive, not the former employee. In any event, since that alleged waiver occurred after the email claiming the privilege was sent, it could not make the claim in the email misleading. I was left not knowing what point Ms Hendry wished to make about legal professional privilege in this regard, and I took no further account of it in deciding whether to make the orders she sought.

18    At the case management hearing of 30 July 2025, Ms Hendry submitted that since the State had foreshadowed applying for a suppression order over the statement of claim of 25 June 2024, the document was effectively restricted. She seemed to be submitting that meant it was inappropriate for Minter Ellison to disclose part of the contents of the statement of claim to the former employee.

19    Ms Hendry further submitted that the last paragraph of the email quoted above was 'coercing her [the former employee] to contact them'. She did not articulate why that was so. Ms Hendry merely referred to the fact that when she (Ms Hendry) spoke to her, the former employee was upset and shared 'the fear that was installed'. Ms Hendry also complained that Minter Ellison had not contacted her before contacting the former employee.

20    In her oral submissions, Ms Hendry acknowledged that the State was entitled to contact potential witnesses. It was how they went about it that caused her concerns. She also seemed to suggest, however, that it was incumbent on the State to obtain the leave of the court and/or to confer with her before contacting persons such as the former employee.

21    I decided not to make the orders Ms Hendry sought, essentially because she had not established that Minter Ellison had done anything improper or otherwise untoward in communicating with the former employee.

22    To begin with, there is no suppression order over the statement of claim of 25 June 2024. The State has filed an application for the suppression of certain details that may be found in it. But it is not at all clear that the contact between Minter Ellison and the former employee was inconsistent with those orders that the State seeks (which have not been made).

23    While the State did not adduce any direct evidence as to its purpose in contacting the former employee, the email of 23 July 2025 shows that its purpose was connected with the application for access to the statement of claim and the suppression order the State proposed to seek as a result. As Ms Hendry points out, the ground for suppression on which it relies is that found in s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), that the suppression or non-publication order 'is necessary to protect the safety of any person'. Given that the former employee is named in the statement of claim, it can be inferred that Minter Ellison was contacting her in connection with the application for a suppression order, potentially to gather evidence to support that application. There is no suppression order to breach at the moment, but even if there were, the email indicates that Minter Ellison's communications with the employee are likely to have been for the purpose of the suppression orders sought, not inconsistent with them.

24    More broadly, the evidence Ms Hendry adduced, unchallenged as it was, did not establish that Minter Ellison contacted the former employee for any improper purpose, or in any improper way. There is nothing coercive in the email of 23 July 2025. It refers in an appropriately neutral way to the proceeding, to Minter Ellison's role in it, and to the application by the third party for access to the statement of claim. The last paragraph, on which Ms Hendry focussed, merely informs the former employee that she has been mentioned in the statement of claim (by Ms Hendry) and asks, in effect, if the former employee would like to know more.

25    It would have been open to the former employee to have answered that question in the negative (or to have responded not at all). But she said she absolutely did want to know. All the evidence established about what Minter Ellison did then is that an associate from the firm telephoned the former employee and told her what was said about her in the statement of claim. That is, Minter Ellison complied with the former employee's request to know what the statement of claim said about her.

26    Evidently the former employee became upset, but there is no evidence that this was because Minter Ellison said or did anything to instil fear in her. The evidence as to what the Minter Ellison associate said to the former employee is that she tried to explain to her what a statement of claim was and read paragraphs from the statement of claim. That was the very information which the former employee had expressed a strong desire to know. The Minter Ellison associate also read from a text message from the former employee to Ms Hendry describing conduct connected with the allegations in the statement of claim. There is no evidence as to how Minter Ellison came to have the text message; it can be inferred that it was disclosed to the State in the course of this proceeding. While the former employee became upset, the details thus communicated to her may well have been upsetting in themselves, and no doubt it was upsetting in general to have been reminded of the matter.

27    There is no rule against a party to litigation making unsolicited communication with a potential 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. There is no property in witnesses. To the extent that the text message was the subject of an implied undertaking to use it only for the purposes of this proceeding the evidence does not suggest that it was used for any other purpose.

28    Ms Hendry's evidence established nothing improper, inappropriate or untoward in Minter Ellison's dealings with the former employee. Hence the orders she sought in relation to communicating the contents of the statement of claim and communicating with witnesses and other persons were not made.

Stay of the proceeding

Evidence in support of the State's stay application

29    In support of its application for a stay of the proceeding, the State filed an affidavit affirmed by one of its solicitors, James Bennett. The affidavit annexes the prosecution notice in the WorkSafe Prosecution, which charges the State through its agency the Department of Justice. The charge is that the State:

Being a person conducting a business or undertaking, did not, so far as was reasonably practicable, ensure the health and safety of a worker while the worker was at work in the business or undertaking, and by that contravention caused serious harm to a worker, contrary to sections 19(1) and 31(1) of the Work Health and Safety Act 2020.

30    The period during which this is alleged to have occurred is between 1 April 2022 and 27 March 2023. This coincides with the time during which, according to Ms Hendry's statement of claim in this proceeding, she was a full time prison officer at Bunbury Regional Prison.

31    Particulars annexed to the prosecution notice allege that the Department failed to take reasonably practical measures to mitigate or prevent the risk to Ms Hendry's psychological health and safety that would follow from 'inappropriate and unreasonable behaviour at work in the business or undertaking, including bullying, harassment including sexual harassment and victimisation'.

32    The State has entered a plea of not guilty. It received disclosure from the prosecution on 17 April 2025 and is considering a response to a request for further and better particulars. The matter is listed for mention in the Magistrates Court on 14 August 2025. It seems that the State may press an application for further particulars. Mr Bennett anticipates that the earliest a trial of the WorkSafe Prosecution will occur is some time in 2026.

33    Mr Bennett also anticipates that Ms Hendry will be called as the prosecution's primary witness. Her evidence is likely to concern most if not all of the allegations she makes in the statement of claim in this proceeding. The prosecution is also likely to call other witnesses, including the other respondents to this proceeding.

34    Mr Bennett also deposes as to prejudice to the State that is likely to arise if this proceeding continues before the WorkSafe Prosecution is concluded. It is not necessary to set out here what he said, which was essentially by way of submission.

The State's submissions

35    Ms Hendry has indicated that she does not oppose a stay of the proceeding pending the outcome of the WorkSafe Prosecution. Nevertheless, given its significance for the proceeding, I required the State to file a written submission as to why a stay should be ordered. I gave the other parties liberty to file their own submissions on the subject at the same time, but as mentioned no one took up that opportunity.

36    In his written submission, senior counsel for the State identified possible prejudice that would arise because the applicant, who is unrepresented in this proceeding, will be the main witness for the prosecution in the WorkSafe Prosecution. If the State were to file a defence in this proceeding, she would become aware of how it intends to defend itself against her allegations well in advance of being cross-examined at the trial of the prosecution. This, the State submits, will give the prosecution a significant forensic advantage and so undermine the State's ability to put the prosecution to proof.

37    The State submits that, since Ms Hendry is a litigant in person, she will inevitably become aware of the contents of any defence that it files in this proceeding, and no order protective of the State's position, such as orders for the confidentiality of some or all of defence, could be made. This is in contrast to 5 Boroughs NY Pty Ltd v State of Victoria (No 3) [2023] VSC 22, in which the availability of such orders was one factor the Court took into account in refusing to order a stay of a group civil proceeding on the basis of a prosecution for alleged breaches of the Victorian occupational health and safety legislation. In State of Victoria v 5 Boroughs NY Pty Ltd [2023] VSCA 101 the Victorian Court of Appeal found no error in the primary judge's orders.

38    The State did not submit that it is entitled to the privilege against self-incrimination. It did, however, submit that in 5 Boroughs (at [76]) the Victorian Court of Appeal spoke of the primary judge in that case having 'accepted that the State was entitled to the benefit and protection of the companion principle'. This is the principle that 'absent a clear statutory power to the contrary, a person charged with a crime cannot be compelled to assist in the discharge of the prosecution's onus of proof': 5 Boroughs at [10].

Principles

39    The power to order a stay in these circumstances is discretionary: see e.g. Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 at [53] (Dodds‐Streeton J). For guidance on how the discretion should be exercised, I respectfully adopt the summary of principles given by Moshinsky J in Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964 (ASIC v ANZ) at [50]-[63]. To encapsulate the points that are relevant to this application (omitting Moshinsky J's citations):

(1)    The Court has a wide jurisdiction to stay proceedings in the interests of justice as an incident of its general power to control its own proceedings: ASIC v ANZ at [50] and see also at [53].

(2)    A plaintiff is prima facie entitled to have the civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds): ASIC v ANZ at [54].

(3)    A court 'will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending; a stay of the civil proceeding may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his, her or its defence in the criminal trial'. Prejudice to the accused's right to silence or privilege against self-incrimination has been recognised as one relevant factor: ASIC v ANZ at [55].

(4)    It may not be necessary for the applicant for the stay to state the specific matters of prejudice before a stay could be contemplated, especially if that would, by disclosing information about the defence, lead to the very situation which an order for a stay seeks to avoid: ASIC v ANZ at [56].

(5)    The possibility of protective orders being made (such as an order made under s 128 of the Evidence Act 1995 (Cth) or a non‐publication or suppression order) is not an adequate protection against the risk of prejudice to the accused: ASIC v ANZ at [57].

(6)    The 'risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion': ASIC v ANZ at [61].

(7)    '[E]ach case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them': ASIC v ANZ at [63].

A stay will be ordered

40    In the present case I am persuaded that it is appropriate to order a stay because there is a close correspondence, almost identity, between the issues likely to be raised in the WorkSafe Prosecution and those raised in this proceeding. The State through the Department of Justice is a defendant in both proceedings. Ms Hendry is the applicant in this proceeding and is likely to be the main witness for the prosecution in the WorkSafe Prosecution.

41    In the absence of full argument on the matter it is not necessary or appropriate to reach a conclusion on whether the State has a privilege against self-incrimination or the benefit of a broader 'companion principle'. It is enough to say in the present case that in the exercise of the discretion with a view to promoting the interests of justice, I consider it appropriate to order a stay of the proceeding to avoid various risks of prejudice to the State's defence in the WorkSafe Prosecution which are identified in Mr Bennett's affidavit and in the State's written submissions. The authorities recognise that 'the primacy of a criminal proceeding needs to be taken into account in the balancing process' so that 'the risk of prejudice to the fair and efficient conduct of [a] criminal proceeding should be given especial significance': Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153 at [56] (Dowsett, Tracey and Bromberg JJ).

42    For the reasons the State gives, a suppression order is unlikely to be effective here. That is not a reflection on anything Ms Hendry may or may not do; it is simply a recognition that if the State files a defence, say, it will inevitably be served on her, and her mere awareness of its contents may give the prosecution a forensic advantage in the WorkSafe Prosecution, regardless of whether Ms Hendry herself intends to confer any such advantage.

43    Finally, it is important that neither Ms Hendry nor any other party opposes the stay, and no prejudice to anyone has been identified.

44    As I indicated at the case management hearing, the application for a suppression order by the State will be carved out of the stay, as the third party access applicant still seeks access, and the principles of open justice require that issue to be determined as soon as practicable. I have separately made orders programming that application to a hearing on 3 September 2025.

Associate:

Dated:    15 August 2025