KEOGH -v- BARTLETT [2026] WASC 166

[2026] WASC 166 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : KEOGH -v- BARTLETT [2026] WASC 166 CORAM : COBBY J HEARD : 4 SEPTEMBER 2024 DELIVERED : 1 MAY 2026 FILE NO/S : CIV 1890 of 2024 BETWEEN : PATRICK RHYAN KEOGH Plaintiff AND PETER MERVYN BARTLETT First Defendant FMR INVESTMENTS PTY LTD Second Defendant Catchwords: Motion for committal for contempt - Disclosure of things said in course of court ordered mediation conference contrary to s 71(1), Supreme Court Act 1935 (WA) - Whether defendants have purged their contempt - Penalty to be imposed Legislation: Supreme Court Act 1935 (WA) -- 1 of 19 -- [2026] WASC 166 Page 2 Result: Finding that each defendant guilty of contempt Defendants' summons for order that they had purged their respective contempts dismissed Fines imposed by way of penalty Defendants to pay plaintiff's costs of originating motion and defendants' summons on an indemnity basis Category: B Representation: Counsel: Plaintiff : Mr N Wallwork First Defendant : Ms S B Nadilo Second Defendant : Ms S B Nadilo Solicitors: Plaintiff : HFW Australia (Perth) First Defendant : Johnson Winter & Slattery - Perth Second Defendant : Johnson Winter & Slattery - Perth Case(s) referred to in decision(s): Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 Attorney-General v Leveller Magazine Ltd [1979] AC 440 Blenkinsop v Herbert [2020] WASC 196 C v M [2011] WASC 175 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; 196 ALR 350 Gazal v Setiawan [2024] NSWSC 1008 Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59 Kelly v Hilton [No 6] [2025] WASC 43 Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531 -- 2 of 19 -- [2026] WASC 166 Page 3 Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682 Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 Peterson v Ceccon [2023] WASC 488 Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 Resolute Ltd v Warnes [2001] WASCA 4 West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 -- 3 of 19 -- [2026] WASC 166 COBBY J Page 4 COBBY J: 1 By originating motion filed 26 July 2024 the plaintiff sought orders that each of the first defendant (Mr Bartlett) and the second defendant (FMR Investments), a company of which Mr Bartlett was a director, be convicted of contempt of court by reason of their disclosure of settlement negotiations at a mediation conducted in this Court in action CIV 1957 of 2023 to the office of the Director of Public Prosecutions, in contravention of s 71 of the Supreme Court Act 1935 (WA) (the Act), and various ancillary orders. 2 On 19 August 2024, after most, but ultimately not all, of the plaintiff's evidence in support of the motion had been filed, Mr Bartlett and FMR Investments applied by summons to be discharged of, and in the alternative proposed orders as to the penalty to be imposed for, their contempt. That summons was supported by two affidavits, the first sworn by Mr Bartlett on 15 August 2024 and the second affirmed by Charles Douglas James Watson, the finance director of FMR Investments, on 19 August 2024. 3 Messrs Bartlett and Watson were not cross-examined on their affidavits. 4 Each of Mr Bartlett and FMR Investments concede that they committed a civil contempt due to Mr Bartlett's disclosure of certain statements made in the course of the mediation conference. For the reasons which follow, I have accepted that concession, and determined that each defendant should be ordered to pay a fine and the costs of the two applications on an indemnity basis. 5 It follows that the defendants' summons will be dismissed. 6 Parties to civil proceedings should be aware that disclosure to third parties of what takes place in the course of a mediation carried out pursuant to an order of the court is generally prohibited, and that the court will act to safeguard confidence in the mediation process. 7 Section 71(1) of the Supreme Court Act 1935 (WA) provides: (1) Subject to subsection (3), evidence of — (a) anything said or done; or (b) any communication, whether oral or in writing; or -- 4 of 19 -- [2026] WASC 166 COBBY J Page 5 (c) any admission made, in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction is to be taken to be in confidence and is not admissible in any proceedings before any court, tribunal or body. 8 In C v M [2011] WASC 175 K J Martin J held at [65] - [70] that s 71(1) creates an express statutory obligation of confidence separate from the concept of without prejudice privilege implicit in s 71. I adopt, with respect, his Honour's reasons for coming to that conclusion. 9 In doing so, I do not accept the defendants' submission that s 71(1) 'is not expressed in terms that state clearly to whom the obligation is owed, from whom things said or done at a mediation must be kept confidential and who has standing to enforce a breach'. It is apparent from the text of s 71(3)(a), supported by s 71(3)(b) and (c), that the obligation is owed to the parties to the mediation, since those persons have the power to consent to the evidence or document being adduced in any proceedings, the obligation of confidence not being limited to the proceedings in which the mediation is held. It follows that each of those persons have standing to enforce a breach of the obligation owed to them. 10 Similarly, it follows that the obligation to maintain the confidentiality of each of the matters identified in s 71(1) and s 71(2) requires that those matters not be disclosed to any person not a party to the mediation. Persons who are present at a mediation by invitation, but who are not a party or an agent of party to the mediation, therefore have no right to disclose, nor to consent to the disclosure of, what occurs in the course of the mediation. 11 Mediation has comprised a critical component of the litigation process in this court, and Western Australia more generally, for many years. In West Australian Newspapers v Bond Owen JA referred to the 'critical importance of mediation in the modern case management process',1 while Buss JA referred to mediation being 'an essential and important feature in the management of contemporary litigation'.2 1 West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164 [3] and [6] (WA Newspapers v Bond). 2 WA Newspapers v Bond [118]. -- 5 of 19 -- [2026] WASC 166 COBBY J Page 6 12 Similarly, in C v M, K J Martin J said:3 Such [court ordered] mediations are a vital component of the civil litigation process in Western Australia. Almost every unresolved civil action in the Supreme Court as a matter of course will, prior to going to trial, experience some form of pre-trial mediation. In recent times, less than 3% of the total civil actions filed in the Supreme Court of Western Australia actually do proceed to a resolution at a trial. Court ordered mediations as a recognised process of dispute resolution within the fabric of the litigation process render an indispensable service to the quelling of civil disputes in this State. 13 The importance of confidentiality to the success of the mediation process was emphasised by his Honour in C v M at [67] and [101], and by Smith J in Blenkinsop v Herbert [2020] WASC 196, where, in the context of determining an application to strike out a pleading as an abuse of process because it contained allegations founded upon matters discussed in various mediations, her Honour said:4 Each of the mediations referred to by the plaintiff were mediations convened by the court. The court offers a confidential mediation program to all litigants who bring proceedings in the court. It is important for all parties who participate in the court's mediation program that all discussions by the parties and the exchange of documents within a mediation be kept confidential so as to encourage open, frank and without prejudice communications. Consequently, anything that is said or done in a mediation is strictly confidential so that no person who participates in the mediation should disclose any information to others disclosed during the mediation unless all parties to the mediation agree, or are required or authorised to do so by law. 14 More recently, in Kelly v Hilton [No 6] [2025] WASC 43, Seaward J confirmed the importance the statutory obligation of confidence created by s 71 of the Act has in the mediation process, saying: … the confidentiality requirements contained in s 71 of the Supreme Court Act 1935 (WA) regarding court ordered mediation conferences serve an essential purpose in the administration of justice. The ability for parties and their lawyers to speak freely and frankly in a mediation conference is an essential part of the mediation process and encourages parties to attempt to resolve their civil disputes without the associated cost and time of a trial for both the parties and the resources of the court. The disclosure of confidential information from such a conference has the potential to undermine the utility of mediation 3 C v M [2011] WASC 175 [25]. 4 Blenkinsop v Herbert [2020] WASC 196 [36]. -- 6 of 19 -- [2026] WASC 166 COBBY J Page 7 conferences in the substantive matter and the administration of justice more broadly.5 15 The proceedings before me were conducted on the common basis that Mr Bartlett's and FMR Investment's conduct constituted a civil contempt,6 the plaintiff having expressly stated that the proceedings were brought for the purpose of securing the defendants' obligation as to confidentiality.7 16 It is open to question, but unnecessary to decide here, whether the unauthorised disclosure of information subject to the statutory obligation of confidence imposed by s 71(1) is to be characterised as a criminal contempt, on the basis that conduct in breach of the obligation interferes or tends to interfere with the course of justice: Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682, 688; Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449. Any reduction in the confidence of litigants in the confidentiality of the mediation process, with the consequent reduction in their willingness to deal openly with each other, would severely impact upon the resolution of disputes without the need for a trial, and consequently the court's ability to carry out its function: see Gazal v Setiawan [2024] NSWSC 1008 [67]. 17 In the present case, as all parties to the mediation conference adduced evidence as to what is said to have occurred in the course of the mediation conference between them, I have proceeded on the basis that they consented to the admission of that evidence in these proceedings. Section 71(3)(a) of the Act relevantly provides that s 71(1) does not affect the admissibility of any evidence in proceedings if the parties to the mediation consent to the admission of that evidence. It is therefore unnecessary to consider whether an implication should be made to permit evidence of what occurred in a mediation to be adduced in support of an application for committal for breach of the obligation imposed by s 71(1), as to which see Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [52] - [54]. 18 Turning to the facts of the matter, the plaintiff was a former employee of FMR Investments. In March 2023, he was tried on criminal charges including stealing as a servant and property laundering 5 Kelly v Hilton [No 6] [2025] WASC 43 [71] (Kelly v Hilton [No 6]). 6 Plaintiff’s Outline of Submissions 30 July 2024 [54] (Plaintiff’s Submissions); Defendants’ Outline of Submissions 19 August 2024 [2]. See Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [61] - [62] as to the distinction between criminal and civil contempt. 7 Plaintiff’s Submissions [55]. -- 7 of 19 -- [2026] WASC 166 COBBY J Page 8 relating to his having allegedly taken gold bearing ore in the course of his employment with FMR Investments. 19 The plaintiff defended those charges primarily on the basis that Mr Bartlett had given him permission to take the ore. The jury was directed that it could not convict the appellant unless they were satisfied beyond a reasonable doubt that Mr Bartlett's evidence to the effect that he did not give the ore to the plaintiff was honest and reliable. 20 The plaintiff was acquitted of those charges on 28 March 2023. 21 On 24 August 2023 FMR Investments commenced action CIV 1957 of 2023 in this court against the plaintiff. Those proceedings arose out of the same conduct as the subject of the plaintiff's March 2023 criminal trial. 22 On 18 January 2024 Musikanth J ordered the action be referred to mediation. The action did not settle and his Honour delivered judgment in the action on 20 April 2026. 23 As at March 2024, the plaintiff had been charged with a further seven counts of causing a detriment by fraud, the State alleging that the plaintiff had obtained unauthorised payments by approving invoices issued by a subcontractor to FMR Investments for inflated amounts with the intention that the plaintiff would receive the overpayments. Those charges had been listed for trial in September 2024. 24 On 1 April 2024 the plaintiff's counsel informed the DPP that the plaintiff intended to defend the charges on the basis that Mr Bartlett had given the plaintiff permission to engage in the conduct the subject of each charge, and suggested that the prosecution of those charges be discontinued on public interest grounds. 25 On 6 May 2024, a mediation was conducted before a registrar of this court pursuant to Musikanth J's order. Mr Bartlett and Mr Watson attended the mediation as the representatives of FMR Investments. 26 There was no evidence as to what precisely was said by the registrar at the commencement of the mediation. The evidence of each of Messrs Bartlett and Watson suggested that neither had a clear recollection of what had been said by the registrar, but it is ultimately unnecessary to make any finding about what was said in view of the defendants' concession that their conduct constitutes a contempt. -- 8 of 19 -- [2026] WASC 166 COBBY J Page 9 27 The uncontradicted evidence of Mr Barlett and Mr Watson is that the parties were in separate rooms for the balance of the mediation after an initial session before the registrar. A conversation is said to have occurred during the mediation between the plaintiff and Mr Bartlett, in the absence of the other persons attending the mediation. 28 Mr Bartlett's evidence is that he thought that conversation was an 'off the record' conversation, which he did not see as part of the formal mediation. 29 On Mr Bartlett's evidence, in the course of that conversation he and the plaintiff discussed, amongst other things, the settlement proposals already made in the mediation. 30 Mr Bartlett's evidence is that he gave a statement to police regarding the second set of criminal charges against the plaintiff in April or May 2024, and then met with two state prosecutors, Beau Sertorio and Catherine Crouch, at the offices of the Director of Public Prosecutions on 31 May 2024. 31 An affidavit of Mr Sertorio, prepared by him, affirmed 30 August 2024 was filed on that date, after the affidavits of Messrs Bartlett and Watson. Mr Sertorio was a Senior Consultant State Prosecutor as a the time of his affidavit, his evidence being that he had been assigned to prosecute the trial of the plaintiff listed for September 2024. 32 Both Mr Bartlett and Mr Sertorio addressed what occurred at the meeting on 31 May 2024 in their affidavit evidence. Mr Sertorio's evidence was that he prepared a file note of what he had been told later that day, using notes made by Ms Crouch in the course of the meeting. 33 Mr Bartlett had a copy of that file note available to him at the time his affidavit was prepared. 34 Despite that, there were differences in the recollections of the two men as to what occurred at the 31 May 2024 meeting. As an example, Mr Bartlett's evidence was that he described what happened at the mediation and his conversation with the plaintiff without interruption by Mr Sertorio or Ms Crouch, whereas Mr Sertorio's evidence was that he asked Mr Bartlett a series of questions regarding what the plaintiff was claimed to have said, Mr Bartlett's account having been jumbled and difficult to follow. -- 9 of 19 -- [2026] WASC 166 COBBY J Page 10 35 As the standard of proof for all charges of contempt is proof beyond reasonable doubt,8 I have proceeded on the basis that facts adverse to the defendants should not be taken into account unless they have been established to that standard, including for the purposes of determining the penalty to be imposed: Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 [35]. 36 As neither Mr Bartlett nor Mr Sertorio was cross-examined, it is not possible to find beyond a reasonable doubt which version of events should be adopted where the recollections of the two men differ, notwithstanding Mr Sertorio's near-contemporaneous file note. 37 However, both men agree that FMR Investments' existing civil proceedings were discussed at the meeting. As Mr Bartlett has no recollection of who raised that topic, I accept Mr Sertorio's uncontradicted evidence that it was Mr Sertorio who did so. 38 I accept Mr Bartlett's evidence that he had been told prior to the meeting on 31 March 2024 that there was only a 50/50 chance that the second criminal trial would go ahead, and that on 31 May 2024 Mr Bartlett wanted to convince the DPP that they should go ahead with the trial on the basis that those statements comprise admissions against the defendants' interest. 39 Similarly, I accept that Mr Bartlett told Mr Sertorio the things set out in paragraphs 5 to 9 of Mr Sertorio's file note, on the same basis. I accordingly find that Mr Bartlett disclosed what had been said between the plaintiff and himself in their conversation, and that those matters included the amounts for which each side was prepared to settle the existing civil proceedings, it being unnecessary to determine whether Mr Bartlett disclosed that information through a process of questioning by Mr Sertorio or otherwise. 40 Finally, I find beyond a reasonable doubt that Mr Bartlett told Mr Sertorio, in substance, that he assumed that FMR Investments would sue the plaintiff in respect of the matters that formed the subject of the second set of criminal charges. 41 I am therefore satisfied beyond a reasonable doubt, consistent with the defendants' concession, that Mr Bartlett disclosed the content of a conversation between he and the plaintiff at the mediation conference to Mr Sertorio and Ms Crouch on 31 May 2024, that he did so in order 8 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534. -- 10 of 19 -- [2026] WASC 166 COBBY J Page 11 to convince Mr Sertorio to continue the prosecution of the plaintiff, and that his doing so contravened s 71(1) of the Act. 42 As FMR Investments was the complainant in the criminal proceedings and the party to the civil proceedings in which the mediation was held, Mr Bartlett's intention and conduct at the meeting on 31 March 2024 is to be regarded as the conduct of FMR Investments. 43 Even if that were not the case, a corporation will be liable for contempt where it authorised the act complained of or failed to take proper steps to prevent the occurrence of the contemptuous conduct.9 At [31] of his affidavit, Mr Watson acknowledged, on behalf of FMR Investments, that it 'should have ensured that all attendees at the mediation, including [Mr Bartlett] understood … the confidentiality requirements'. 44 I am therefore also satisfied beyond a reasonable doubt, again consistent with the defendants' concession, that the company FMR Investments contravened s 71(1) of the Act on 31 May 2024 by the conduct of its director, Mr Bartlett, FMR Investments having failed to take steps to prevent Mr Bartlett from breaching the statutory obligation of confidentiality. 45 It was submitted for each of the defendants that they had, in effect, purged their contempt by the filing of their affidavits in opposition to the originating motion, which contained apologies to the plaintiff and the court from Mr Watson on behalf of FMR Investments and Mr Bartlett, and, in particular, by undertaking not to further publish the information discussed at the mediation. 46 The defendants submitted in the alternative that their punishment for their contempts be limited to the making of an order for costs on an indemnity basis. 47 In support of their position, the defendants argued that Mr Bartlett's conduct had not led to any advantage to the defendants. 48 I accept that is true, but only because Mr Sertorio independently determined not to proceed with the second criminal trial against the plaintiff, notwithstanding Mr Bartlett's attempt to convince the DPP to 9 Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531 [63], [106]; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59 [60]. -- 11 of 19 -- [2026] WASC 166 COBBY J Page 12 proceed. Mr Bartlett conceded that he attempted to convince the DPP to proceed with the prosecution, and there were obvious advantages to FMR Investments in having criminal proceedings against the plaintiff proceed to trial before it commenced any civil proceedings against him. 49 The punishment to be imposed for contempt is in the discretion of the court.10 Any punishment imposed must be effective, because 'serious damage to the fabric of the law may result' if it is not.11 50 In Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82, Gething J identified the relevant factors to be considered in sentencing a defendant to include:12 (a) the seriousness of the contempt proved; (b) the defendant's culpability; (c) the reasons or motive for the contempt; (d) whether the defendant has received or tried to receive a benefit from the contempt; (e) whether there has been any expression of remorse, genuine contrition or acceptance of responsibility by the defendant; (f) whether the defendant pleaded guilty to the contempt and, if so, when; (g) the defendant's personal circumstances; (h) the character of the defendant; (i) the prior relevant criminal record of the defendant, or its absence (suggesting prior good character); (j) the absence or presence of a prior conviction for contempt; (k) compliance with other orders, including whether past fines have been paid; (l) personal deterrence; (m) general deterrence; and 10 Resolute Ltd v Warnes [2001] WASCA 4 [5]. 11 AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 115. 12 Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 [46]. -- 12 of 19 -- [2026] WASC 166 COBBY J Page 13 (n) the need for denunciation of contemptuous conduct. 51 In the present case, on his own admission, Mr Bartlett disclosed what had been said in the course of the mediation to the two prosecutors in an attempt to convince the DPP to continue with the prosecution of the plaintiff, in circumstances where he knew the chances the DPP would not do so were “50/50”, and that a reason for that situation was (it could be inferred) that Mr Bartlett's evidence had not been accepted at the plaintiff's first criminal trial. Informing the prosecutors of an alleged admission by the accused would clearly be relevant to their assessment of the prospects of a successful prosecution. It can be inferred that Mr Bartlett appreciated that to be the position. 52 A second criminal trial was also likely to assist FMR Investments in the civil proceedings it was contemplating bringing against the plaintiff, both because the plaintiff's evidence in support of his defence would likely be disclosed and proof of FMR Investments' proposed claims would be assisted if the plaintiff were to be convicted. 53 On the evidence, the only reason Mr Bartlett's attempt to convince the DPP to proceed was ineffective was Mr Sertorio's independent assessment of the prospects of successfully prosecuting the plaintiff. There was little more that Mr Bartlett could have done to achieve his admitted goal of having that prosecution proceed. 54 Although both Mr Bartlett and FMR Investments conceded that their conduct constituted a civil contempt, undertook not to further disclose the relevant information and have apologised, that all occurred after the commencement of the application and in particular, Mr Sertorio's file note of his conversation with Mr Bartlett was provided to the defendants' solicitors by the plaintiff's solicitors. 55 There was also a delay in the apology, Mr Bartlett's evidence being that he was aware that it was alleged that he had committed a contempt of court in mid-June, while on holiday in Europe. Mr Bartlett did not give any evidence of an inability to obtain telephone or internet access while in Europe. 56 Mr Bartlett returned to Perth on Wednesday, 3 July 2024, and then left on a fishing trip on 6 July 2024, from which he did not return until 9 August 2024. Mr Bartlett's evidence is that he had telephone and internet access while on his fishing trip. -- 13 of 19 -- [2026] WASC 166 COBBY J Page 14 57 As Mr Bartlett gave no evidence of any step he took to address the allegation that he had committed a contempt from the time he was informed of it until his return from fishing, I find that he did not do so. 58 I accept that, as Messrs Bartlett and Watson were not cross-examined, Mr Bartlett's apology and that of FMR Investments must be accepted as being genuine. However, I give Mr Bartlett's apology significantly less weight than it might otherwise have received, given his failure to address his contempt in a timely manner. 59 Logically, the question whether either Mr Bartlett or FMR Investments has purged their respective contempt must be resolved before any consideration of the penalty, if any, to be imposed for their conduct. Seaward J explained the principles governing the determination of whether a defendant has purged his or her contempt in Kelly v Hilton [No 6] as follows:13 Wilson LJ in CJ v Flintshire Borough Council described the action of purging a contempt as follows: To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. However, Wilson LJ went on to observe that this description of the concept of purging contempt fits more comfortably with a contempt involving a breach of a mandatory order to do an act, as opposed to a breach of a prohibitory order. Whilst there are conceptual differences between purging each type of contempt, I respectfully agree with the conclusions expressed by Professor Rolph as to whether both types of contempt should be able to be purged: [T]he better view is that all forms of contempt should be able to be purged. What constitutes sufficient purging will depend upon the particular circumstances of the given contempt. A defendant should be encouraged so far as possible to comply with his or her legal obligations or to undo the consequences of his or her contempt. Adopting this approach to purging contempt would seem to further the end of promoting respect for the administration of justice. The authorities refer to various steps a defendant will ordinarily be required to take in order to purge their contempt. These include expressing a genuine and unreserved apology; offering to pay 13 Kelly v Hilton [No 6] [2025] WASC 43 [16] - [21]. -- 14 of 19 -- [2026] WASC 166 COBBY J Page 15 compensation for any damages suffered and offering to pay the costs of the contempt proceedings, usually on an indemnity basis. However, none of the authorities provide that if one or more of these steps are taken that the contempt is automatically purged. It remains for the court to consider whether the contempt has been purged and the defendant should be discharged without further penalty. The question of whether a contempt has been purged will depend upon all of the circumstances of the case. It may be that the court considers that additional steps are required to purge the contempt, or that the circumstances require the imposition of an additional penalty on the defendant on the basis that the defendant has not suffered punishment proportionate to the contempt. There is a significant degree of overlap between the facts and circumstances relevant to imposing a penalty on a defendant and considering whether the defendant has purged their contempt. This is unsurprising given the task in each case involves a consideration of the contempt in the context of its circumstances, including matters personal to the defendant. In addition to the factors referred to above in the context of determining the appropriate penalty for a contempt, it may also be relevant to consider the extent of the steps taken by the defendant to purge the contempt. (citations omitted) 60 In all the circumstances, I am not satisfied that Mr Bartlett's and FMR Investments' undertakings and their respective apologies should be found to constitute their having purged their respective contempts. Submissions to the effect that a contemnor has not benefited from his or her conduct are of little weight when the failure to achieve that outcome is not due to anything done by the contemnor, and, as I have said, I give less weight to Mr Bartlett's apology than might have otherwise been the case. 61 Nor, given the potential for damage to the administration of justice arising from the disclosure of information obtained in the course of mediation, would a finding that the defendants have purged their contempts be in the interests of justice. 62 For the same reasons, I am not satisfied that the payment of costs on an indemnity basis is a punishment which would be proportionate to the serious nature of their contemptuous behaviour. 63 Again, that result would not act as sufficient general deterrence to others. 64 General deterrence is an important consideration in this case. For the reasons identified above, the statutory duty of confidence imposed -- 15 of 19 -- [2026] WASC 166 COBBY J Page 16 by s 71(1) serves an important function in the resolution of litigation without trial. 65 In my judgment, a substantial punishment must therefore be imposed upon each of Mr Bartlett and FMR Investments to make clear that breach of the statutory obligation of confidentiality imposed by s 71 is unacceptable to the court and to ensure that each of Mr Bartlett and FMR Investments is appropriately punished for their conduct. 66 Neither Mr Bartlett nor FMR Investments led evidence of their financial position. 67 I infer that Mr Bartlett is a person of substantial means from the facts that he resides in Applecross; shares in the 'ultimate beneficial ownership' of a unit trust which owns the Gordon Sirdar Gold Mine and the Greenfields Mill with the estate of one other person; has a house in Busselton; holidayed in Europe for about a month in June 2024 and has a fishing boat 'up north', on which he has telephone and internet access while at sea. 68 Mr Bartlett is also the sole shareholder in FMR Investments. FMR Investments is the trustee of the unit trust which owns the Gordon Sirdar Gold Mine and the Greenfields Mill. Mr Bartlett told Mr Sertorio at the 31 May 2024 meeting that FMR Investments' annual turnover was about $100 million, and that he held unrefined gold ore which would be worth $4 to $8 million (once refined) at his house, which would be recorded in the books of FMR Investments once the ore was refined. 69 I was informed by counsel for the defendants that they did not make a case about any inability to pay a fine. 70 There is no tariff for a penalty for contempt. As Mr Bartlett's disclosure to the DPP did not have the effect he desired, his conduct does not warrant a term of imprisonment. 71 It is appropriate to consider the means of the contemnor and the extent to which the fine will burden the contemnor in determining the amount of the fine to be imposed: Peterson v Ceccon [2023] WASC 488 [103]. 72 Mr Watson's evidence is that he did not know of Mr Bartlett's disclosure to the DPP of the matters discussed at the mediation until the issue was first raised by the plaintiff's solicitors on 20 June 2024. -- 16 of 19 -- [2026] WASC 166 COBBY J Page 17 Mr Watson attended the mediation conference with Mr Bartlett on behalf of FMR Investments. There was no other evidence of the state of FMR Investment's knowledge of Mr Bartlett's conduct. 73 I have noted that Seaward J imposed a fine of $5,000 in respect of a disclosure by a party in breach of the statutory obligation of confidentiality in connection with a mediation under direction, as a component of a total fine of $30,000 in Kelly v Hilton [No 6] imposed in relation to 17 separate findings of contempt.14 That $5,000 fine was imposed in circumstances where the contemnor was found to have disclosed information obtained in a mediation conference to the Western Australian police, and might therefore be said to be comparable. 74 Her Honour had regard to the contemnor's ability to pay a fine in imposing penalty in that case.15 75 In this case, the court is concerned to effectively punish two persons who breached the statutory obligation of confidentiality imposed in relation to mediations under direction, who have substantial financial resources. It is essential that the penalty imposed both be effective, and operate as a general deterrent to similar conduct in the future. 76 To the extent that the financial position of the defendants can be discerned from the evidence, a fine of $5,000 would not be an effective punishment in the case of either defendant, being too small to be of consequence to them. 77 In my view, the imposition of substantial fines is required to ensure that the due administration of justice is protected. Given the apparent resources of the defendants, the imposition of a lesser fine would undermine the purpose of imposing a penalty.16 78 My intention to award the plaintiff his costs of the originating motion and of the defendants' summons on an indemnity basis is also a factor to be taken into account in imposing penalty.17 14 Kelly v Hilton [No 6] [93] - [94]. 15Kelly v Hilton [No 6] [89]. 16 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; 196 ALR 350 [53] (CFMEU v BHP). 17 CFMEU v BHP [53]. -- 17 of 19 -- [2026] WASC 166 COBBY J Page 18 79 In all the circumstances, I consider that Mr Bartlett and FMR Investments should each pay a fine of $50,000. 80 In addition, Mr Bartlett and FMR Investments should pay the plaintiff's costs of each of the originating motion and their summons seeking a declaration that they had purged their contempt on an indemnity basis. Although there was a significant degree of overlap between the two applications, I do not consider it appropriate to order that those costs be assessed as a single set of costs, given the conceptual differences between the two applications and my having found that Mr Bartlett and FMR Investments should not be regarded as having purged their contempt on the terms they proposed. 81 I will hear from counsel as to the precise terms of the orders to be made, but I propose to make orders to the following effect: 1. It be declared that on 31 May 2024 each of the first defendant Peter Mervyn Bartlett and the second defendant FMR Investments Pty Ltd (ACN 009 411 349) contravened s 71(1) of the Supreme Court Act 1935 (WA) by disclosing to Senior State Prosecutor Beau Sertorio and Catherine Crouch of the Office of the Director of Public Prosecutions for Western Australia the content of settlement negotiations at a mediation conducted on 6 May 2024 at this Honourable Court pursuant to the order of the Honourable Justice Musikanth made 18 January 2024. 2. Each of the defendants be restrained and an injunction is hereby granted from further disclosing the content of settlement negotiations at that mediation. 3. By 4pm on Friday, 8 May 2026, the first defendant file and serve on the plaintiff an affidavit identifying any further disclosure of the content of settlement negotiations during the mediation of 6 May 2024 to persons who were not parties to that mediation, or deposing that there was no such further disclosure, if that be the case. 4. The first defendant pay a fine of $50,000 for his contempt of this Honourable Court arising from the conduct identified in order 1. -- 18 of 19 -- [2026] WASC 166 COBBY J Page 19 5. The second defendant pay a fine of $50,000 for his contempt of this Honourable Court arising from the conduct identified in order 1. 6. The first and second defendants pay all the costs incurred by the plaintiff in respect of the originating motion and the defendants' summons filed 19 August 2024, including all reserved costs, except insofar as those costs are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions, the plaintiff be completely indemnified by the defendants for his costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RH Associate to the Hon Justice Cobby 1 MAY 2026 -- 19 of 19 --