PERPETUAL TRUSTEE COMPANY LIMITED AS TRUSEE FOR THE YABURARA AND COASTAL MARDUDHUNERA ABORIGINAL CHARITABLE TRUST -v- PASCOE PARTNERS CUSTODIAN SERVICES PTY LTD [2026] WASC 268

[2026] WASC 268 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PERPETUAL TRUSTEE COMPANY LIMITED AS TRUSEE FOR THE YABURARA AND COASTAL MARDUDHUNERA ABORIGINAL CHARITABLE TRUST -v- PASCOE PARTNERS CUSTODIAN SERVICES PTY LTD [No 2] [2026] WASC 268 CORAM : GETHING J HEARD : 15 JUNE 2026 DELIVERED : 1 JULY 2026 FILE NO/S : CIV 1145 of 2024 BETWEEN : PERPETUAL TRUSTEE COMPANY LIMITED AS TRUSEE FOR THE YABURARA AND COASTAL MARDUDHUNERA ABORIGINAL CHARITABLE TRUST Plaintiff AND PASCOE PARTNERS CUSTODIAN SERVICES PTY LTD First Defendant WAYNE MICHAEL COX Second Defendant Catchwords: Contempt - Contempt of court by a failure to comply with an order of the court to produce documents - Continuing fine imposed subject to liberty to apply - -- 1 of 17 -- [2026] WASC 268 Page 2 Whether an indemnity costs order is sufficient to vindicate the authority of the court Legislation: Nil Result: Orders for continuing fines vacated Category: B Representation: Counsel: Plaintiff : J Winton First Defendant : B Mangan SC Second Defendant : B Mangan SC Solicitors: Plaintiff : Greenstone Legal First Defendant : Clyde & Co Second Defendant : Clyde & Co Case(s) referred to in decision(s): Attorney General for Western Australia v Marijanich [2024] WASC 312 Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415 Fu v Cha [No 4] [2020] WASC 292 Marron v Salvemini; Re Scardigno [1969] WAR 178 Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 Peterson v Ceccon [2023] WASC 488 The State of Western Australia v Galati [No 4] [2017] WASC 162 Yap v Matic [No 6] [2023] WASC 24 -- 2 of 17 -- [2026] WASC 268 GETHING J Page 3 GETHING J: Introduction 1 The plaintiff in this application is Perpetual Trustee Company Limited (Perpetual) as trustee for the Yaburara and Coastal Mardudhunera Aboriginal Charitable Trust (Trust). 2 Perpetual became trustee of the Trust by deed of appointment of trust dated 30 June 2023 (Perpetual Deed). At all material times prior to that date, the trustee of the Trust was the first defendant, Pascoe Partners Custodian Services Pty Ltd (Pascoe). Its sole director is Wayne Michael Cox, who is the second defendant to the present application. 3 On 13 March 2025 I found both Pascoe and Mr Cox in contempt of court for failing to comply with an order to produce certain books and records of the Trust made on 6 August 2024 (Production Order).1 Among other orders, I fined each defendant a set amount together with a daily penalty until compliance was effected and ordered them to pay Perpetual's costs on an indemnity basis. Up to that point, neither defendant had participated in the proceedings (though each had been properly served). Accordingly, I granted each defendant liberty to apply as to the amount of the penalty and costs. 4 The defendants have now complied with the Production Order. 5 On 2 June 2026, I made orders by consent fixing Perpetual's costs of the proceedings at $103,496. The orders went on to provide that this amount is to be paid in full by the defendants into Perpetual's nominated bank account within 30 days of the date of the order. On 1 July 2026 the court was informed that this amount had been paid by Mr Cox. 6 The defendants have invoked the liberty to apply in relation to the amount of the penalty. Their position is that in light of the circumstances in which the contempt occurred and the amount of costs paid, the appropriate order is to impose no fine. In support of their position the defendants filed submissions dated 15 March 2026 (Defendants' Submissions) and submissions in reply dated 8 June 2026 (Reply Submissions). They also rely on four affidavits: 1 My reasons for doing so are reported as: Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 (Contempt Decision). -- 3 of 17 -- [2026] WASC 268 GETHING J Page 4 (a) Mr Cox, affirmed 8 April 2025 (First Cox Affidavit); (b) Mr Cox, affirmed 7 November 2025 (Second Cox Affidavit); (c) Joel James Burren, a legal practitioner employed by the defendants' lawyers, affirmed 15 May 2026 (Burren Affidavit), attaching a copy of a document described as the Second Further Re-Amended Joint Schedule in relation to the Orders of Master Russell made on 6 august 2025 and dated 2 December 2025 (Joint Schedule); and (d) Mr Cox, affirmed 8 June 2026 (Third Cox Affidavit). 7 Perpetual filed submissions on 29 May 2026 (Plaintiff's Submissions). Its submission is that a fine should be imposed. 8 For the reasons which follow, the orders for the continuing fines will be vacated. This is a case in which, even though the contempt was proven, the court's authority is sufficiently vindicated by the order that the contemnor pay the costs of the application, which were significant, and by imposing no penalty. Procedural history 9 In order to assess the appropriate amount of the final penalty, it is necessary to consider the procedural history in more detail. 10 By originating summons filed 9 February 2024, Perpetual sought orders that Pascoe deliver to it certain named books and records of the Trust (Original Application). The Original Application was properly served on Pascoe. Pascoe did not enter an appearance. As I have mentioned, the Production Order was made on 6 August 2024.2 On 8 August 2024, the Production Order was personally served on Mr Cox on behalf of Pascoe. 11 Pascoe did not comply with the Production Order. Accordingly, Perpetual filed an application for contempt, at which point Mr Cox was joined as a second defendant (Contempt Application). The Contempt Application was personally served on both Pascoe and Mr Cox. Mr Cox did not enter an appearance. Nor did he comply with an order made on 12 December 2024, and personally served on him, to appear at a directions hearing on 12 February 2025. At that hearing I made 2 The terms of the Production Order are set out in Contempt Decision at [4]. -- 4 of 17 -- [2026] WASC 268 GETHING J Page 5 orders programming the Contempt Application to a hearing on 13 March 2025, which were served on both defendants. 12 At the hearing on 13 March 2025, neither defendant appeared. I was satisfied that each defendant had been provided with sufficient, even ample, opportunity to be heard on the Contempt Application, so I proceeded to hear and determine the application in their absence. The orders which I made were (Contempt Orders): 1. In these orders, the term Documents means the documents set out in the schedule to this order. 2. By 20 March 2025, the plaintiff serve a copy of this order on the first defendant and on the second defendant personally. 3. The first defendant is convicted of contempt by reason of its breach of the order of Her Honour Master Russell made on 6 August 2024 (Order) (a copy of which is attached to this order) in that on and from 23 August 2024 to the date of this order it has failed to deliver up the Documents, or any of them, to the plaintiff's solicitors, Greenstone Legal (Plaintiff's Solicitors). 4. In respect of its contempt, the first defendant is fined: (a) $5,000 which is to be paid by 27 March 2025; and (b) subject to the plaintiff complying with the order in paragraph 2 $500 per day for each day after 27 March 2025 until the Order is complied with. 5. The second defendant is convicted of contempt in that he deliberately caused the first defendant to breach the Order in that on and from 23 August 2024 to the date of this order the first defendant has failed to deliver up the Documents, or any of them, to the Plaintiff's Solicitors. 6. In respect of its contempt, the second defendant is fined: (a) $2,500, which is to be paid by 27 March 2025; and (b) subject to the plaintiff complying with the order in paragraph 2, $250 per day for each day after 27 March 2025 until the Order is complied with. 7. The first defendant and the second defendant jointly and severally pay the cost of the application commenced by originating summons on 9 February 2024 (Application) to the date of this order on that basis that the plaintiff be paid all the costs incurred by it in the Application except in so far as they -- 5 of 17 -- [2026] WASC 268 GETHING J Page 6 are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, it is completely indemnified for its costs. 8. The first defendant have liberty to apply in relation to the orders in paragraph 4 and 7, the liberty to be exercised by the first defendant by 27 March 2025 filing and serving: (a) a memorandum of appearance complying with Rules of the Supreme Court 1971 (WA) (RSC) order 12, in particular rule 1(2); (b) a minute of proposed orders; and (c) an affidavit in support of the minute of proposed orders. 9. The second defendant have liberty to apply in relation to the orders in paragraphs 6 and 7, the liberty to be exercised by the second defendant by 27 March 2025 filing and serving: (a) a memorandum of appearance complying with RSC Order 12; (b) a minute of proposed orders; and (c) an affidavit in support of the minute of proposed orders. 10. The action be listed for a further directions hearing on 9 April 2025 at 12 noon. 11. The second defendant is required to attend the directions hearing listed by order 10 in person, with a failure to attend placing the second defendant at risk of being convicted for contempt for that failure to attend. 13 The Contempt Orders had their desired effect. On 2 April 2025, Mr Cox filed a memorandum of appearance. On 3 April 2025, Pascoe filed a memorandum of appearance. At the hearing on 9 April 2025, senior counsel appeared for both Pascoe and Mr Cox. 14 From 9 April 2025 Mr Cox and Pascoe, through their lawyers, have been engaging with the lawyers for Perpetual in the process of complying with the Production Order. 15 At a hearing on 5 December 2025, counsel for Perpetual informed the court that, from Perpetual's perspective, the Production Order had been complied with. Perpetual says that the date by which Pascoe finally complied with the Production Order was 15 August 2025, which -- 6 of 17 -- [2026] WASC 268 GETHING J Page 7 I accept.3 At that hearing, counsel for the defendants informed the court that they proposed to invoke the liberty to apply. I made some programming orders to facilitate this and listed the issue for hearing. In order to narrow the issues in dispute, I informed the parties that my preliminary view was that the daily penalty should run until 9 April 2025. This was on that basis that it was on this date that the defendants started to engage in the process of compliance with the Production Order, by way of Senior Counsel appearing on the defendants' behalf at the hearing. 16 There were some delays in the hearing proceeding due to Perpetual finalising its position on costs. The costs order in paragraph 7 of the Contempt Orders was for indemnity costs. I set out the reasons why an order for indemnity costs was appropriate in the Contempt Decision ([69] - [72]). Counsel for the defendants took the position that they needed to know what the costs were going to be, as that would bear on the submissions as to penalty. For that reason, I indicated that I would fix the costs, before assessing the penalty, which I have now done ([5]). Penalty - Principles 17 In the Contempt Decision I set out in some detail the principles relating to punishment for contempt ([41] to [53]). I reiterate two points. The first is that in considering whether to impose a fine and, if so, the amount, the means of the contemnor and the extent to which the payment of the fine would burden the contemnor are relevant considerations.4 The second is that the court may also take into account any costs which the contemnor will be required to pay.5 I add that, where the court finds a contempt proven, its authority may be sufficiently vindicated by ordering that the contemnor pay the costs of the application on an indemnity basis or on a solicitor and client basis, and imposing no penalty.6 Penalty - Defendants' position 18 In the First Cox Affidavit, Mr Cox offered the court his 'sincerest apologies' for not attending court when ordered to do so, in particular 3 Plaintiff's Submissions [3(b)]. 4 Peterson v Ceccon [2023] WASC 488 [103] (Archer J); Yap v Matic [No 6] [2023] WASC 24 [33] (Archer J); Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415 [25] (Le Miere). 5 Attorney General for Western Australia v Marijanich [2024] WASC 312 [86] (McGrath J); Attorney General v Morrison [No 3] [2022] WASC 323 [18], [24] - [27] (Curthoys J). 6 Fu v Cha [No 4] [2020] WASC 292 [8] - [13] (Le Miere J) (Fu [No 4]); Marron v Salvemini; Re Scardigno [1969] WAR 178, 182 (Hale J) (Marron). -- 7 of 17 -- [2026] WASC 268 GETHING J Page 8 when ordered to appear in person on 12 February 2025. He expresses deep regret for not having engaged appropriately with the court prior to swearing the First Cox Affidavit. Having had the benefit of legal advice since 2 April 2025, he then understood and appreciated that he should have communicated with the court sooner and apologised for not doing so.7 19 He explains:8 Without detracting from my apology…, I offer the following explanation for my actions: a. Until late 2024, I thought the matter would resolve itself, as I taken extensive steps to provide Perpetual with documents and information and I believed I had supplied Perpetual with most if not all of the documents they required that I was able to locate [Pascoe's] records. I did not believe that this matter needed to go had to Court. 9. b. I have never personally been involved in litigation proceedings. c. Without the benefit of legal advice and representation (which 1 acknowledge I should have sought sooner), I became overwhelmed as the matter escalated and was unable to make decisions about how to deal with this matter. I became paralysed by anxiety, which affected my ability to engage with the Court and Perpetual's lawyers. I should have sought legal assistance sooner and regret not doing so. d. I did not appreciate the seriousness of the matter until I received the Contempt Orders. I fully appreciate the seriousness of this matter. I also appreciate how it may have appeared that I made a voluntary and deliberate decision not to engage with the Court process. I accept that I did not engage with the Court process when I should have done. My failure to do so was a product of my own anxiety and indecision, rather than a deliberate decision to ignore the Court's orders. 20 Mr Cox explains that he made efforts from around mid-November 2024 to April 2025 to engage a lawyer in relation to the proceedings.9 21 In the Second Cox Affidavit, Mr Cox repeats his 'sincere and profound' apology.10 7 First Cox Affidavit [5] - [7]. 8 First Cox Affidavit [8] - [9]. 9 First Cox Affidavit [10]. -- 8 of 17 -- [2026] WASC 268 GETHING J Page 9 22 In the Second Cox Affidavit, Mr Cox explained that the day to day management of the Trust's finances and accounts was the responsibility of an employee of Pascoe, Chris Denman. Mr Denman left the employ of Pascoe in June 2023. While Mr Denman was employed, Mr Cox had limited involvement with the finances of the Trust. In summary terms, this caused some difficulties for Mr Cox in being able to respond to Perpetual's initial requests for documents and, ultimately, to comply with the Production Order.11 23 Mr Cox also described his initial responses to requests for information about the Trust from Perpetual over the period from August to December 2023. He sets out the information he provided to Perpetual in response to being served with the Original Application. 24 Counsel for the defendants invites the court to find that the circumstances in which Mr Cox did not produce other documents to Perpetual were that:12 (a) he thought Pascoe had already provided them; (b) he did not know that Pascoe had the documents; and (c) he thought that the documents were held by third parties and available to Perpetual through those third parties. 25 Mr Cox confirms being served with the Production Orders, the Contempt Application, the orders made by Archer J on 6 November 2024, the orders made by Archer J on 12 December 2024, my orders of 12 February 2025 and my orders of 13 March 2025 (as well as other legal documents). 26 Mr Cox then sets out the efforts that he has gone to seek to comply with the Production Orders. 27 In the Third Cox Affidavit, Mr Cox deposes that Pascoe was set up for the sole purpose of carrying out the business of acting as a corporate trustee. It has no assets, income or expenses of its own. It has no employees. It does not trade on its own account. It has not been required to lodge financial statements or tax returns for seven to eight years. It holds no beneficial interests in shares. Its shares are held by Pascoe Partners Accountants. It is this firm that invoiced the Trust for 10 Second Cox Affidavit [8]. 11 Second Cox Affidavit [22] - [37]; see also Third Cox Affidavit [21] - [34]. 12 Defendants' Submissions [22]. -- 9 of 17 -- [2026] WASC 268 GETHING J Page 10 services provided. As Pascoe has no assets or income, it has no capacity to pay any fine.13 28 As to Mr Cox personally, he deposes that the proceeding has imposed a very heavy burden on him personally. He is to pay Perpetual's costs of the proceedings. He has incurred significant legal costs of his own, which are significantly higher than the amount agreed to be paid to Perpetual. As Pascoe has no funds from which to pay these costs, he is going to pay them personally. He deposes that he has received invoices from his lawyers which he has struggled to pay. He has come to a payment arrangement with his lawyers, and has still not paid all their invoices.14 29 In the Third Cox Affidavit, Mr Cox reiterates that the proceedings have been very stressful and have had a significant impact on him mentally and emotionally.15 He goes on to say:16 I apologise again for not engaging with the co rt proceeding earlier. Before I secured legal advice and assistance, I did not know what to do in response to the application to produce. Before this proceeding, I had not had to deal with this court or any court personally. The proceeding made me very anxious and I found myself becoming increasingly indecisive about it. I accept I ought to have sought advice and support earlier. I went to my partners in late 2024 and started looking for a lawyer in earnest at that time. I acknowledge I should have sought legal advice earlier. I acknowledge that I did not deal proactively with the court papers. I was overwhelmed by the breadth of the requests and did not know what to do about them … 30 The defendants accept: (a) that the contemptuous conduct was serious;17 (b) the court's finding that they did not deliver up documents to Perpetual's solicitors, Greenstone Legal, as required by the Production Orders;18 (c) that Pascoe failed to comply with the Production Order;19 13 Third Cox Affidavit [7] - [12]. 14 Third Cox Affidavit [13] - [16]. 15 Third Cox Affidavit [17]. 16 Third Cox Affidavit [18] - [20]. 17 Defendants' Submissions [18]. 18 Defendants' Submissions [19]. -- 10 of 17 -- [2026] WASC 268 GETHING J Page 11 (d) that given Mr Cox's role as sole director of Pascoe, it is appropriate to characterise Pascoe's failure to comply with the Production Orders as his failure to comply;20 and (e) the findings of contempt.21 31 Counsel adds that: (a) the defendants did not receive or try to receive any benefit from the contempt; (b) Mr Cox does not have any prior relevant criminal record or any prior conviction for contempt; (c) there is no evidence which demonstrates that Mr Cox is otherwise not of good character, so he should therefore be accepted as being of prior good character; and (d) the proceeding has had a significant impact on Mr Cox's mental health, which in turn adversely affected his capacity for reflective and logical thinking and responsive action to the proceedings. 32 Counsel for the defendants invites the court to find that, since early April 2025, and with the benefit of legal advice, the defendants have taken further extensive steps to engage with Perpetual and the court and search for and produce copies of documents which are or may be responsive to the Production Orders. The defendants submit that those steps demonstrate a committed effort by the defendants to:22 (a) purge their contempt; (b) demonstrate acceptance of responsibility for the failure to comply with the Production Orders and other orders of this court; (c) acknowledge the seriousness of this matter and show contrition; and (d) resolve the issue of compliance for the benefit of the court and Perpetual. 19 Defendants' Submissions [23]. 20 Defendants' Submissions [24]. 21 Defendants' Submissions [37]. 22 Defendants' Submissions [38] - [40]. -- 11 of 17 -- [2026] WASC 268 GETHING J Page 12 33 In the Reply Submissions, counsel at points made submissions going to the finding of contempt.23 However, as no liberty to apply was given in relation to the findings of contempt, the findings in the Contempt Decision can only be challenged on appeal. 34 The position is, however, different for the findings going to penalty. In this regard, counsel for the defendants noted that, in considering the issue of penalty, I had stated that there were ample grounds for the suspicion that Pascoe did not want to comply with the Production Orders because it did not want Perpetual as the new trustee to either see its records or find out that no, or insufficient, records were maintained.24 Counsel acknowledged that at the time those findings were made, I did not have an explanation from the defendants for the failure to comply. The defendants deny that this was their motivation for failing to comply with the Production Orders and submit that the explanation given by Mr Cox for failing to ensure Pascoe's compliance with the Production Orders, and the steps taken by the defendants to facilitate compliance with the Production Orders, do not substantiate that suspicion. On the basis of the evidence now filed by Mr Cox, I accept that submission. 35 In conclusion, counsel for the defendants submits that it is not necessary for the court to impose any fine for the purpose of achieving personal or general deterrence. Rather, the substantial costs order stands in the place of a penalty for the purposes of: (a) coercing the defendants to engage with the court process; (b) punishing the defendants for not engaging with the court process; and (c) denunciating the defendants' conduct and deterring likeminded offenders from engaging in similar conduct. Penalty - Plaintiff's position 36 Counsel for the plaintiff invited the court to reject the submission referred to at [24] because Mr Cox could not have:25 23 Reply Submissions [6]. 24 Contempt Decision [54]; Defendants' Submissions [26]. 25 Plaintiff's Submissions [7]. -- 12 of 17 -- [2026] WASC 268 GETHING J Page 13 a. honestly believed that he had produced all of the required documents, because: i. even a cursory examination of the Production Orders would have alerted him to the fact that the first defendant held records that it had not produced to the plaintiff; ii. the chronology of escalating court procedures must have made clear to him that, objectively, both the plaintiff and the court considered that there were further documents held by the first defendant that needed to be produced; and iii. at no time prior to the conviction for contempt did the defendants assert to the Court that there were no further records to produce; b. honestly not known that the first defendant possessed documents that were required to be produced in answer to the Production Orders, because: i. both defendants are sophisticated, providing professional services, with legal obligations to keep proper records; ii. the records sought were precisely the kind of documents that a professional trustee is expected and required to keep; and iii. basic searches of the defendants' records should have identified that it held records that were required to be produced; or c. honestly believed that the documents were available to the plaintiff through other means, because, as outgoing trustee, the first defendant was the entity that held, or had the right to access, the relevant records. In any event, even if this belief was honestly held, it amounts to no more than a hope that the first defendant might not be called upon to fulfill its obligations if others provided the documents. That belief does little to mitigate against the seriousness of the failure to comply with the Production Orders. 37 Counsel for the plaintiff also invited the court to reject the assertion by Mr Cox that his non-compliance with the orders of the court was a product of anxiety and indecision, rather than a deliberate decision to ignore the court's orders. There is no medical evidence to -- 13 of 17 -- [2026] WASC 268 GETHING J Page 14 support this finding and Mr Cox was ultimately able to instruct lawyers to engage and comply.26 38 Counsel for the plaintiff also submitted that the appropriate end date for the continuing fine is not when the defendants began to comply (9 April 2025) but when they actually complied (15 August 2025).27 39 Counsel for the plaintiff did not submit that imprisonment, being the sentence of last resort, is appropriate in this case. Rather, it was submitted that it was open to the court to impose a fine, including daily penalties if the court is minded to. Consistent with the position of the prosecution in a criminal case, counsel for the plaintiff did not seek to 'proffer some statement of the specific result which counsel … considers should be reached or a statement of the bounds within which that result should fall'.28 Penalty - Determination 40 If I were to remain of my preliminary view that the continuing fine should run through to 9 April 2025: (a) the fine payable by Pascoe would be $18,500, comprising the base fine of $5,000 and $500 per day for the 27 days from 13 March 2025 to 9 April 2025; and (b) the fine payable by Mr Cox would be $9,250, comprising the base fine of $2,500 and $250 per day for the 27 days from 13 March 2025 to 9 April 2025. 41 I do not accept Perpetual's submission that the date should be the date on which compliance was completed (15 August 2025). This is because the gravamen of the contempt in this case was not engaging with Perpetual to seek to comply with the Production Order. Had Pascoe sought to comply with the Production Order upon being served with it on 6 August 2024, there would inevitably have been a level of engagement with Perpetual in order to identify the documents to be provided. The appropriate end date for the continuing fine is the date on which the defendants began to engage with Perpetual. 42 The excuses for non-compliance offered by Mr Cox are in no way mitigating. However, I accept that the defendants did not benefit from 26 Plaintiff's Submissions [8]. 27 Plaintiff's Submissions [10] - [15]. 28 Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [39] (French CJ, Hayne, Kiefel and Bell JJ). -- 14 of 17 -- [2026] WASC 268 GETHING J Page 15 the contempt, have now purged their contempt and have accepted responsibility for their offending. These matters make it appropriate to at least limit the continuing fine to the period from 13 March 2025 to 9 April 2025 (in the amounts set out at [40]). 43 That leaves the defendants' submission that no fine should be ordered. 44 I reiterate that the contempt in this case was serious. As I said in the Contempt Decision, it not only involved a blatant and ongoing breach of the order of the court, but it was frustrating the efforts of Perpetual to properly administer a public charitable trust, including to comply with statutory reporting requirements.29 It should not take contempt proceedings for a professional services firm to comply with a court order. There remains a clear need to deter other professional services firms from deliberately flouting the orders of the court. 45 Counsel for the defendant accepts this, but points to two further matters: the financial capacity of each defendant and the level of the costs imposed. 46 It is clear that Pascoe lacks the capacity to pay a fine. This fact underscores the need to take contempt action against the individual in control of the company who bears 'a heavy responsibility to ensure that the company complies with the order'.30 47 The evidence of Mr Cox's financial position is vague and general. It is incumbent on a defendant who makes this submission to make full and frank disclosure of their financial position. This would ordinarily include information as to the assets owned, liabilities owed and sources of income. That did not occur in the present case. All I have are the facts set out at [28]. However, these facts are sufficient for me to find that Mr Cox lacks the capacity to readily pay a fine, even of $9,250. 48 Another factor is that, had Mr Cox complied with the Production Order, Pascoe would have incurred some legal costs. This is because the Production Order provided for Pascoe to pay Perpetual's costs on an indemnity basis.31 Pascoe would have incurred some legal costs of its own in complying with the Production Order. However, I accept that the costs ultimately ordered to be paid by Pascoe are much higher than 29 Contempt Decision [34], [54]. 30 The State of Western Australia v Galati [No 4] [2017] WASC 162 [43] (Tottle J). See generally: Contempt Decision [28] - [31]. 31 Contempt Decision [4]. -- 15 of 17 -- [2026] WASC 268 GETHING J Page 16 would have been the case had the Production Order been complied with, as are the costs it incurred. And Mr Cox became personally liable for these costs. 49 It is significant that the amount of costs paid ($103,496) is nearly four times the amount of the penalties I would have otherwise assessed as being appropriate (as set out at [40]). This leads me to conclude that the imposition of a fine in addition to these costs would lead to an adverse financial outcome for each defendant greater than that which is commensurate with the seriousness of the contempt. 50 Taking all the facts and circumstances now before the court into account, I am of the view that this is a case in which the authority of the court has been sufficiently vindicated by the public findings of contempt and the order that the contemnors pay the costs of the application on an indemnity basis.32 Paragraphs 4 and 6 of the Contempt Orders should be vacated with the effect that the defendants pay no fine. 51 The costs agreed at [5] included the costs of the hearing to set the penalty, so there should be no further order as to costs.33 32 Fu [No 4] [8] - [13]; Marron 182. 33 Transcript 10.3.26, p 108. -- 16 of 17 -- [2026] WASC 268 GETHING J Page 17 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CC Associate to the Hon Justice Gething 1 JULY 2026 -- 17 of 17 --