PERPETUAL TRUSTEE COMPANY LTD -v- PASCOE PARTNERS CUSTODIAN SERVICES PTY LTD [2025] WASC 82 (17 March 2025)

(a) Bank statements for all Trust bank accounts from 1 July 2023 to 30 June 2023.
>
> (b) All external information/support for verifying the amounts in the Trust profit and reports for the financial years ending 30 June 2022 and 30 June 2023.
>
> (c) Receipts for all transactions that make up the figures in the Trust profit and loss statements for the period from 1 July 2021 to 30 June 2023.
>
> (d) Copies of all Native Title Agreements and Sub Fund Agreements including any Community Group agreements with Contributors.
>
> (e) Copies of all minutes and resolutions for trustee meetings, community meetings and any other advisory council meetings from the date of settlement, being 17 December 2009, to 30 June 2023.
>
> (f) Copies of investments reviews, strategic plans and annual plans from the date of settlement, being 17 December 2009, to 30 June 2023.
>
> (g) Copies of the trust accounting records showing income and capital receipts, transaction records and expenditure (including distributions to beneficiaries) for the financial years ending 30 June 2020, 2021 and 2022.
>
> (h) Details of the Trust's TFN, ABN and ACNC registration and ACNA reporting.
>
> (i) Copies of the auditor's reports for the financial years ending 30 June 2020, 2021 and 2022.
>
> (j) Copies of all existing contracts for service providers such as consultants, accountants, auditors and any other service providers as at 30 June 2023.
>
> (k) The current portfolio valuation report and account details with relevant contact details for the Lonsec Investment as at 30 June 2023.
>
> (l) The current share certificate, investment records and minutes of investment decisions for the GP Now shareholding as at 30 June 2023.

1. The defendant must give effect to order 1 above by delivering all Documents to the plaintiff's solicitors, Greenstone Legal, Level 1, 32 Delhi Street, West Perth WA 6005.
2. Liberty to apply.
3. The defendant is to pay all costs of the Application incurred by the plaintiff, except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to those exceptions the plaintiff is completely indemnified for its costs.

(I will adopt the definition of Documents used in the Order)

1. On 8 August 2024 the Production Order was personally served on Mr Cox on behalf of Pascoe.[1]
2. As at 21 October 2024, Pascoe had not complied with the Production Order. Accordingly, by chamber summons filed Perpetual sought to join Mr Cox as a second defendant and commence contempt proceedings. On 6 November 2024, Archer J made orders joining Mr Cox as the second defendant, for the filing and service of an amended originating summons and contempt application and for a directions hearing on 12 December 2024.
3. The amended Originating Summons and amended Application (Contempt Application) were filed on 11 November 2024 and served on Pascoe.[2] They were also personally served on Mr Cox.[3]
4. Mr Cox did not enter an appearance. Neither did he appear at the directions hearing on 12 December 2024. On that date, Archer J made the following orders:

1. The proceedings be adjourned to a directions hearing at 9.15am on 12 February 2025. 2. The second defendant is required to attend the directions hearing listed by order 1 in person. 3. By 29 January 2025, the plaintiff is to serve on the defendants, including personal service upon the second defendant:

(a) a copy of these orders;
>
> (b) a transcript of the hearing on 12 December 2024 (transcript); and
>
> (c) a letter extracting from the transcript the observations made by the Honourable Justice Archer regarding the orders made.

1. The costs of today be in the cause.
2. The observations referred to in paragraph 3(c) were:

(1) There will be a directions hearing in this matter at 9 15 am on 12 February 2025 in the Supreme Court, David Malcolm Justice Centre, Perth.

(2) The court has made an order that Wayne Michael Cox must attend the directions hearing.

(3) The court strongly recommends that Mr Cox obtain legal advice. If the alleged contempt is proved, the plaintiff seeks, among other things, an order that Mr Cox be imprisoned or fined or both.

1. On 20 December 2024, Perpetual filed an affidavit sworn by Lucre Davies, a solicitor employed by its lawyers, deposing that par 3 of the orders made on 12 December 2024 had been complied with.
2. Mr Cox did not appear at the directions hearing on 12 February 2025 before me. On the hearing I made orders that:

(a) any further affidavits on which it proposes to rely on at the hearing of the contempt application (Hearing);
>
> (b) a list of the affidavits on which it proposes to rely on at the Hearing; and
>
> (c) submissions in support of the orders sought.

1. By 25 February 2025 the Plaintiff serve a copy of the following documents on each defendant by leaving a copy for each defendant at Level 2, 100 Havelock Street, West Perth:

(a) the affidavits in paragraphs 1(a) and (b);
>
> (b) its submissions; and
>
> (c) these orders.

1. By 5 March 2025, each defendant file and serve:

(a) any affidavit they propose to rely on at the Hearing, without prejudice to the right of the second defendant to adduce oral evidence at that hearing;
>
> (b) a list of the deponents of the affidavits in paragraph 1 that they wish to cross-examine; and
>
> (c) any submissions for the Hearing.

1. The Hearing be listed for 13 March 2025 at 10:30am. 2. The costs of the hearing today be reserved.

The order in paragraph 3(a) took into account that, while Pascoe did not have the benefit of the privilege against self-incrimination, Mr Cox did.[4]

1. Perpetual complied with the orders in pars 1 and 2.[5]
2. Neither defendant filed any documents pursuant to the order in par 3.
3. At the hearing on 13 March 2025, neither defendant appeared. I was satisfied that each defendant has had sufficient, even ample, opportunity to be heard on the Contempt Application, so I proceeded to hear and determine the application in their absence.
4. Counsel for Perpetual read the following affidavits:

(a) Fedel Conti (a process server), sworn 8 October 2024;

(b) Kathryn Ann Parker (a legal practitioner employed by Perpetual's lawyers), affirmed 14 October 2024 J;

(c) Luke Joseph Friedman (a senior manager - legal with Perpetual), sworn 15 October 2024 (Friedman Affidavit);

(d) Mr Conti, sworn 25 November 2024;

(e) Lucre John Davies (a legal practitioner employed by Perpetual's lawyers), sworn 27 November 2024;

(f) Mr Davies, sworn 20 December 2024; and

(g) Mr Davies, sworn 26 February 2025.

There was a further affidavit of service by Mr Davies sworn 28 February 2025 (after the list of affidavits relied on was filed). I will also take this affidavit as being read.

1. After hearing from counsel for Perpetual I formed the view that it had proven each contempt beyond a reasonable doubt. I said that I would publish the reasons for my decision, which follow.
2. In the usual course, the court would adjourn and convene a second hearing to determine the penalty. However, given that the defendants showed no interest in participating in the Contempt Application, and given that I was not considering the imposition of a term of imprisonment on Mr Cox, I proceed to deal with the penalty. Again, I said I would publish my reasons, which also follow.
3. The orders I made on 13 March 2025 were as follows (the schedule to the order is Annexure A to these reasons):

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.

1. 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. 2. 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.

1. 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 are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, it is completely indemnified for its costs. 2. 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.

1. 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.

1. The action be listed for a further directions hearing on 9 April 2025 at 12 noon. 2. 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.

The basis on which Perpetual proved the contempt against Pascoe

1. The Contempt Application is brought in the inherent jurisdiction of the Supreme Court. On the one hand, the Production Order requires the defendants to produce books and records, so is in substance an order for delivery up of personal property. However, there is likely to be an element of personal exertion required in order to extract information from computer systems. In this context, the Contempt Application does not fit neatly into the dichotomy between orders requiring the delivery up of personal property and orders requiring other acts to be done in the Civil Judgments Enforcement Act 2004 (WA) (CJEA).[6] In my view, the CJEA is not exhaustive, and does not purport to exclude the inherent jurisdiction of the Supreme Court on areas dealt with. An important attribute of a superior court of record is its power to punish for contempt.[7] The Supreme Court is a superior court of record.[8] The CJEA does not by 'very clear and express' words purport to diminish this important inherent jurisdiction of the Supreme Court in relation to contempt.[9] My conclusion is consistent with recent Supreme Court practice.[10] The present case illustrates the need for the court to maintain its inherent jurisdiction, even in cases that may also be able (at least in part) to be dealt with under the CJEA. In the present case, it is both necessary and appropriate to deal with the Contempt Application in the inherent jurisdiction of the court, guided by RSC O 55.
2. The Contempt Application must, and does, specify the contempt of which the contemnor is alleged to be guilty, as required by RSC O 55 r 5(1). It was served on Pascoe and personally served on Mr Cox as required by RSC O 55 r 5(2) ([7]).
3. The elements required to establish contempt by disobedience to a court order are well settled, and may be summarised as follows:[11]

(a) an order was made by the court against the contemnor;

(b) the terms of the order were clear, unambiguous and capable of being complied with;

(c) the order was served on the contemnor or service was dispensed with;

(d) the contemnor had knowledge of the terms of the order, or at least its substance;

(e) the contemnor breached or 'disobeyed' the order; and

(f) the contemnor's conduct in breaching the order was deliberate and voluntary.

1. The principles that apply in proving these issues are also well established:

(a) a contempt proceeding takes place as a civil hearing and in accordance with the civil procedure rules of the court;[12]

(b) the onus of establishing conduct which amounts to a contempt of court lies on the person asserting the contempt;[13]

(c) the contemnor is entitled to the presumption of innocence;[14]

(d) a charge of contempt, whether criminal or civil, must be proven beyond a reasonable doubt;[15]

(e) the facts must be proved by admissible evidence;[16]

(f) as a contempt application is not an interlocutory application, hearsay evidence is not admissible pursuant to RSC O 37;[17]

(g) the knowledge of the contemnor may be proven by inference;[18] and

(h) for a fact to be proven by inference, it must be the only available or reasonable inference.[19]

1. Pascoe is a company. However, it 'exercises its powers and performs its functions through natural persons'.[20] Where the order is binding on a company, difficult questions can sometimes arise as to whether the conduct of an officer, employee or agent breaching a court order can be attributed to the company.[21] However, no difficult question arises in the present case as Mr Cox is the sole director of Pascoe. He is the 'directing mind and will' of Pascoe.[22] His actions are those of Pascoe. His knowledge is that of Pascoe.
2. Based on the chronology I have set out at [1] to [6], Perpetual has proven the following facts beyond a reasonable doubt:

(a) the Production Order was made against Pascoe ([4]);

(b) the terms of the Production order were clear, unambiguous and capable of being complied with ([4]);

(c) the Production Order was served on Pascoe by giving it to Mr Cox ([5]);

(d) based on the facts in (a), (b) and (c), the only reasonable inference is that Mr Cox, and thus Pascoe, had knowledge of the terms of the order; and

(e) Pascoe has failed to comply with the Production Order, and so had breached or disobeyed it ([6]).

1. As to whether Pascoe's conduct in breaching the order was deliberate and voluntary, deliberate disobedience of an order does not require a specific intention to break the law or even knowledge on the part of Pascoe that the relevant conduct constituted a breach. Perpetual does not have to prove a conscious intention to break the law. It is sufficient that it was aware of the facts that make his conduct a breach of the order. In the context of contempt, 'deliberate' means wilful in the sense that the actions of the contemnor were not casual, accidental or unintentional.[23] In this sense, I am satisfied that the only reasonable inference is that Pascoe's actions in not complying with the Production Order were not casual, accidental or unintentional, but were rather deliberate and voluntary. There are no 'positive proved facts' suggesting any alternate inference, let alone one that it reasonable.[24]
2. For these reasons, I found that Perpetual has proven the contempt against Pascoe beyond a reasonable doubt.

The basis on which Perpetual proved the contempt against Mr Cox

1. The contempt charge against Mr Cox was originally framed in reliance on CJEA s 98(3) which provides:

If a corporation disobeys a judgment to which this Division applies, the corporation is guilty of a contempt of court, and each officer of the corporation is also guilty of a contempt of court unless he or she satisfies the court -

(a) that the corporation's disobedience occurred without the officer's consent or connivance; and

(b) that the officer took all the measures to ensure the corporation obeyed the judgment that he or she could reasonably be expected to have taken having regard to the officer's functions and to all the circumstances.

1. However, given the issue raised at [19], Perpetual abandoned this argument, and instead relies on the common law principles imposing liability for a contempt committed by a corporate entity on a director or officeholder. The principles in this regard may be summarised as follows:

(a) a third party may be guilty of contempt if the person aids or abets its breach;[25]

(b) a third party may also be guilty of contempt if they deliberately do an act which infringes or frustrates the efficacy of the order, at least where that amounts to a knowing and wilful interference with the administration of justice by the court in the action:[26]

(c) for the purposes of (a) and (b), the third party must know of the terms of the order, though it is not necessary that they were served with it;[27]

(d) persons who, though not personally bound by a court order, procure those who are bound by it to contravene it, or otherwise thwart it, are not liable as accessories who aided and abetted the persons bound by the order, but are directly liable for independent contempt committed by themselves in obstructing the course of justice;[28]

(e) more specifically, a director who has notice of an order of the court against the company, is under a duty to take reasonable steps to ensure that it is obeyed, and if he or she wilfully fails to do so and the order is breached they may also be held liable for contempt;[29]

(f) where a company has a sole director, then the company's compliance, or failure to comply, are because of that sole director's conduct or inaction - the sole director's actions, or inaction, are effectively the action or inaction of the company;[30]

(g) the order must be one which the company could have complied with;[31] and

(h) accordingly, a non-party director of a company may be in contempt for deliberately causing the company of which he or she is a director to breach the order.[32]

1. The issue of the liability of a director for contempt where the primary obligation was on the company was considered by Tottle J in The State of Western Australia v Galati [No 4].[33] In that case, the director, Mr Galati, admitted that he was guilty of a contempt of court for which he should be punished.[34] At a general level, his Honour observed:[35]

The law of contempt of court protects the public interest in the due administration of justice, that is, the resolution of disputes by adjudication in the courts. Orders made by the courts give effect to decisions made by applying the law that governs all members of society to disputes brought before the courts. The authority of the courts and ultimately the rule of law are undermined if court orders are not obeyed. Those bound by court orders must understand that they cannot be disobeyed with impunity.

1. Mr Galati was liable pursuant to CJEA s 98(3), which I have quoted at [27].
2. In relation to the basis on which Mr Galati should be sentenced, his Honour said:[36]

... directors of a company which is subject to a court order enjoining it either to perform an act or to refrain from doing a particular act bear a heavy responsibility to ensure that the company complies with the order. In this case, Mr Galati has accepted, in effect, that he did not take all the measures that he could reasonably have been expected to take, having regard to his position within Galati Nominees, to ensure Galati Nominees obeyed the order. No explanation has been offered as to how the breach of the order was allowed to occur. In circumstances in which it must have been obvious to Mr Galati that it was important that the order be obeyed, his failure to ensure that it was obeyed is an omission deserving of punishment.

These observations reflect the common law principles which I have set out at [28].

1. As the potential liability of a director is a direct liability for the contempt, it is appropriate to draw in some of the elements set out at [21]. For present purposes, it is sufficient for Perpetual to prove beyond a reasonable doubt that:

(a) an order was made by the court against Pascoe;

(b) the terms of the order were clear, unambiguous and capable of being complied with;

(c) Pascoe could have complied with the Production Order;

(d) Pascoe breached or 'disobeyed' the Production Order;

(e) Mr Cox had knowledge of the Production Order;

(f) Mr Cox was the sole director of Pascoe; and

(g) Mr Cox's deliberately, by act or omission, caused Pascoe to breach or disobey the order, so as to knowingly and wilfully interfere with the administration of justice by the court in the action.

1. I have already found that an order was made by the court against Pascoe, the terms of which were clear, unambiguous and capable of being complied with. Moreover, the order is one that Pascoe could have complied with.
2. Mr Friedman deposes that the Documents are records relating to the Trust that are required by Perpetual to fulfill its role as trustee of the Trust and to comply with its reporting requirements in order to maintain the registration of the Trustee with the Australian Charities and Not‑for-profits Commission.[37] It follows that they were also documents which Pascoe was required to keep for these purposes. In addition, Pascoe signed a deed requiring it to give Perpetual all books, documents and records relating to the Trust in its possession.[38] This is not a case where, for example, the order is for the payment of money which the company simply did not have.[39]
3. I have also found that Pascoe breached or 'disobeyed' the order.
4. Mr Conti deposes in his affidavit sworn 8 October 2024 that he served the Production Order on Pascoe by giving a copy to Mr Cox. Specifically:
   1. 'I did on 8 August 2024, at 10.20am, serve Wayne Michael Cox with a copy of the Orders of Master Russell dated 6 August 2024 (Orders). A copy of the Orders is attached to this affidavit and marked "1 ".
   2. I effected personal service of the Orders upon Wayne Michael Cox by handing a copy of the Orders to him at the office of Pascoe Partners Custodial Services Pty Ltd, Level 2, 100 Havelock Street, West Perth, 6005 (Office).
   3. I arrived at the Office around 10.15am.
   4. I went up to a women sitting at a desk in the reception area and said to her words to the effect of can I speak to Wayne Cox.
   5. The women said to me words to the effect of what's your name. I said "Fedel Conti, I'm a process server."
   6. The women said to me words to the effect of what is this about.
   7. I said to the women words to the effect of I have a document for Wayne Cox for personal service from Greenstone Legal.
   8. The woman said to me words to the effect of give me a moment, I'll call him. She then picked up the phone and spoke to someone.
   9. A man came into the reception area and I said to him "Are you Wayne Michael Cox". He said "Yes".
   10. The man grabbed the Orders out of my hand and walked away.'
5. Another relevant factor is that Mr Cox holds himself out as a director of an accounting practice.[40] As such, he is quite capable of understanding the terms of the Production Order and taking steps to ensure that Pascoe complied with it.
6. I am satisfied beyond a reasonable doubt that Mx Cox knew of the terms of the Production Order: the only reasonable inference from the facts set out in the previous paragraph is that on receiving the documents Mr Cox read them. If he did not read the documents he was given, he is wilfully blind and equally culpable.
7. The ASIC records before the court confirm that at all times since 15 April 2009, Mr Cox was the sole director of Pascoe.[41] He is its directing mind and will. His actions, or inaction, are effectively the action or inaction of Pascoe. Given this finding, I am also satisfied beyond a reasonable doubt that Mr Cox's deliberately, by omission, caused Pascoe to breach or disobey the Production Order, so as to knowingly and wilfully interfere with the administration of justice by the court in the action. This is the only reasonable inference. There are no 'positive proved facts' suggesting any alternate inference, let alone one that it reasonable.[42]
8. For these reasons I came to the conclusion that Perpetual had proven beyond a reasonable doubt that Mr Cox committed the contempt alleged.

1. The power of the court to punish a contemnor for contempt is set out in RSC O 55 r 7, which provides so far as is relevant:
   1. Punishing contemnors

(1) The Court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on him, or by both committal and fine.

(2) When the Court imposes a fine, it may order that the contemnor be imprisoned, or further imprisoned, until the fine is paid.

(3) Where the contemnor is a corporation the Court may punish contempt of court by sequestration, or fine or both.

1. RSC O 55 r 7 is not definitive of the court's power to punish for a contempt of court.[43] However, it is sufficient for present purposes.
2. The punishment to be imposed is a matter entirely within the discretion of the court.[44] The powers conferred on the court are wide and flexible.[45] As Gibbs CJ, Mason, Wilson and Deane JJ observed in AMIEU v Mudginberri Station Pty Ltd, one important outcome is that the punishment be effective:[46]

Contempt of court is a distinctive offence attracting remedies which are sui generis... It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

1. Another important outcome is that the penalty imposed must be sufficient to protect the due administration of justice. The importance of contempt cases transcends each individual case because they support and enhance the integrity of judicial proceedings in general.[47] These two outcomes were acknowledged by the Court of Appeal in R v T:[48]

Sentencing for a contempt of court constituted by a breach of the court's orders may serve two distinct purposes. These purposes may be described as coercive and punitive. A sentence for contempt may provide a coercive means by which court orders can be enforced and future compliance with the order secured for the benefit of a party to the proceedings can be ensured. However, a sentence for contempt may also punish wilful disobedience of a court's order so as to vindicate judicial authority and maintain the integrity of the court's process in the public interest. These different purposes mark the distinction between civil and criminal contempt. Although the significance of that distinction has been reduced almost to the point of obliteration in Australia, the dual purpose of sentencing for contempt of court remains and imposition of a single sentence may serve both purposes.

1. The Sentencing Act 1995 (WA) (SA) does not apply to or in respect of a person being punished for contempt of court.[49] However, its terms provide a sound guide to determining the appropriate punishment for contempt, in particular that:[50]

(a) the sentence must be commensurate with the seriousness of the offence; and

(b) imprisonment is the sentence of last resort.

This is consistent with the principle at common law that the sentence must be proportional to the offence.[51]

1. The relevant sentencing factors include:[52]

(a) the seriousness of the contempt proved;

(b) the contemnor's culpability;

(c) the reasons or motive for the contempt;

(d) whether the contemnor 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 contemnor;

(f) whether the contemnor pleaded guilty to the contempt and, if so, when;

(g) the contemnor's personal circumstances;

(h) the character of the contemnor;

(i) the prior relevant criminal record of the contemnor, or its absence (suggesting prior good character);[53]

(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

(n) the need for denunciation of contemptuous conduct.

1. In considering whether to impose a fine and, if so, the amount, the means of the offender and the extent to which the payment of the fine would burden the offender are relevant considerations.[54] The court may also take into account any costs which the contemnor will be required to pay.[55]
2. Where there is continuing non-compliance with an order, one option open to the court is to impose a continuing fine.[56] In this regard, the plurality in AMIEU observed:[57]

There will often be elements of futurity in orders of a court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae... In the case of a corporation, its assets may be seized and remain seized until the contempt ceases. Such an order again exhibits a conditional character. There is much to be said for securing to a superior court a wide range of remedies so that it will be better able to meet the exigencies of particular circumstances....

... In the result, then, we would uphold the imposition of a daily fine as being within the range of remedies available to the Federal Court and a remedy appropriate, in the circumstances of this case, to the objective of securing compliance...

This comment is apposite to the powers of the Supreme Court.

1. Perpetual seeks a finding that the contempt amounted to a criminal contempt. The distinction was summarised by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway:[58]

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.

Their Honours went on to observe that the distinction between a civil contempt and a criminal contempt is, in significant respects, illusory.[59] Or, as I have quoted at [44] 'reduced almost to the point of obliteration'.

1. The approach reflected in recent decisions of the Supreme Court is that an analysis of whether the proceedings are civil or criminal in nature is not of great assistance in determining the appropriate punishment.[60] RSC O 55 generally, and r 7 in particular, does not draw a distinction between a criminal and a civil contempt; all that is required to be proven is a contempt.[61] Moreover, O 55 r 7 does not require a finding that the contempt was 'contumacious' before the power to imprison is available.[62]
2. Having said that, the recent practice of the Supreme Court is, as a matter for fact, for there to be an element of egregiousness over and above a deliberate and voluntary breach in order to justify the imposition of a term of imprisonment, suspended or immediate. This is best seen as a reflection of the principle that imprisonment is a sentence of last resort.[63] Sometimes the traditional term 'contumacious' is used.[64] Other phrases used include:

(a) 'serious in the sense that it was a deliberate and defiant disregard of an order of this court'... 'has chosen to knowingly defy court orders';[65]

(b) 'deliberate defiance'... 'defiantly chose to repeatedly breach';[66]

(c) 'blatant defiance';[67]

(d) 'wilful and deliberate... repeated and sustained, not isolated... deliberate and sustained character';[68] and

(e) 'wilfully and deliberately'.[69]

1. Another remedy open pursuant to RSC O 55 r 7(3) in relation to the first defendant is sequestration. Sequestration involves seizing the assets of the corporation and retaining them until such time as the contempt ceases.[70]
2. Finally, if procedural fairness has been given, a contemnor may be sentenced in their absence, though it may be appropriate to give the contemnor liberty to apply.[71] I am satisfied that Pascoe and Mr Cox have had ample opportunity to be heard on the Contempt Application. In many cases, once the contempt is proven, there will be an adjournment to a separate hearing to impose a penalty. However, as mentioned, given the fact that the defendants have shown no interest whatsoever in participating in either the Application or the Contempt Application, I formed the view that there was no utility in adopting this approach. I did, however, give them liberty to apply in relation to the penalty imposed.

1. The contempt proven is serious. It not only involves a blatant and ongoing breach of the order of the court, but it is frustrating the efforts of Perpetual to properly administer a public charitable trust, including to comply with statutory reporting requirements ([34]). Moreover, there are ample grounds for the suspicion that Pascoe does not want to comply, because it does not want Perpetual as the new trustee to either see its records or find out that no, or insufficient, records were maintained.
2. There is nothing from Pascoe's perspective that is mitigating. It does not have the benefit of a plea of guilty to the charge, nor anything resembling remorse, genuine contrition or acceptance of responsibility.
3. 'Personal' deterrence is a significant factor. There is a clear need to both enforce compliance with the Production Order and deter Pascoe from failing to comply with court orders in the future. Having said that, this factor is not heightened by evidence of a prior conviction for contempt or a failure to comply with court orders in the past.

• 57 General deterrence is also a significant factor. '[O]ther like‑minded individuals must be aware that the court will not stand by and allow its orders to be deliberately flouted'.[72] There is a clear need to denounce Pascoe's conduct. This reflects the two purposes served by sentencing for a contempt discussed at [43] and [44].

1. In my view, the appropriate penalty for Pascoe was:

(a) to fine it $5,000 payable by 27 March 2025, reflecting the breach to date; and

(b) to fine it a further $500 per day for each day after 27 March 2025 until the Order is complied with.

The order in paragraph (b) allows Pascoe a limited period of time after service of the order to comply.

1. In setting this penalty, I took into account the costs order that I propose to make against Pascoe.
2. I am conscious that I have not heard from Pascoe as to its capacity to pay a fine, so I will give it limited liberty to apply in relation to the penalty.

1. My findings as to the seriousness of the contempt proven against Pascoe apply equally to Mr Cox. Mr Cox deliberately caused Pascoe to breach the Order.
2. Again, there is nothing from Mr Cox's perspective which is mitigating. He does not have the benefit of a plea of guilty to the charge, nor anything resembling remorse, genuine contrition or acceptance of responsibility. However, I accept that I don't have any evidence as to his personal circumstances or character more generally, so I will give him liberty to apply in relation to the penalty.
3. Personal deterrence is a significant factor for Mr Cox as well. There is a clear need to both enforce compliance with the Prosecution Order by Pascoe and deter Mr Cox from failing to ensure that Pascoe complies with court orders in the future. The need for personal deterrence is heightened by the fact that now on two occasions, Mr Cox has not complied with a specific order requiring him to personally attend court (see [8] and [10]). This factor is not further heightened by evidence of a prior conviction for contempt, or a relevant criminal record more generally.
4. As with Pascoe, general deterrence is also a significant factor. There is a clear need to denounce Mr Cox's conduct.
5. It is open for me to impose a term of imprisonment on Mr Cox. However, on the evidence currently available, I am not satisfied that there is an element of egregiousness over and above a deliberate and voluntary breach in order to justify the imposition of a term of imprisonment, suspended or immediate. The sentence of last resort has not been reached. However, if the order I have made does not induce compliance, and the contempt continues, then it may well be that the only available option is imprisonment.
6. In my view, the appropriate penalty for Mr Cox was:

(a) to fine him $2,500 payable by 27 March 2025, reflecting the breach to date; and

(b) to fine him a further $250 per day for each day after 27 March 2025 until the Production Order is complied with.

The order in paragraph (b) allows Mr Cox a limited period of time after service of this order to ensure Pascoe complies with the Production Order.

1. In setting this penalty, I took into account the costs order that I propose to make against Mr Cox.
2. Again, I am conscious that I have not heard from Mr Cox as to his capacity to pay a fine, which again means that liberty to apply is appropriate.

1. As contempt proceedings are in the civil jurisdiction, they attract the rule that ordinarily applies in that jurisdiction that costs follow the event.[73]
2. Indemnity cost orders are commonly made in contempt proceedings, the rationale being that an applicant who successfully brings a contempt application serves a public interest and should not be out of pocket.[74] In any event, I would have been readily satisfied on the principles set out in Swansdale Pty Ltd v Whitcrest Pty Ltd that an order for indemnity costs was appropriate.[75]
3. In the Order, Pascoe was ordered to pay Perpetual's costs on an indemnity basis. It should be ordered to pay Perpetual's costs since then on an indemnity basis as well.
4. Mr Cox should be ordered to pay Perpetual's costs since he was joined as a party on an indemnity basis, including the costs of filing and serving the papers to join him.
5. However, I will grant limited liberty to apply in relation to the costs order to give Pascoe and Mr Cox an opportunity to argue that a different costs order should be made.

The term Documents means the following documents and records relating to the Yaburara and Coastal Mardudhunera Aboriginal Charitable Trust (Trust):

(a) Bank statements for all Trust bank accounts from 1 July 2023 to 30 June 2023.

(b) All external information/support for verifying the amounts in the Trust profit and reports for the financial years ending 30 June 2022 and 30 June 2023.

(c) Receipts for all transactions that make up the figures in the Trust profit and loss statements for the period from 1 July 2021 to 30 June 2023.

(d) Copies of all Native Title Agreements and Sub Fund Agreements including any Community Group agreements with Contributors.

(e) Copies of all minutes and resolutions for trustee meetings, community meetings and any other advisory council meetings from the date of settlement, being 17 December 2009, to 30 June 2023.

(f) Copies of investments reviews, strategic plans and annual plans from the date of settlement, being 17 December 2009, to 30 June 2023.

(g) Copies of the trust accounting records showing income and capital receipts, transaction records and expenditure (including distributions to beneficiaries) for the financial years ending 30 June 2020, 2021 and 2022.

(h) Details of the Trust's TFN, ABN and ACNC registration and ACNA reporting.

(i) Copies of the auditor's reports for the financial years ending 30 June 2020, 2021 and 2022.

(j) Copies of all existing contracts for service providers such as consultants, accountants, auditors and any other service providers as at 30 June 2023.

(k) The current portfolio valuation report and account details with relevant contact details for the Lonsec Investment as at 30 June 2023.

(l) The current share certificate, investment records and minutes of investment decisions for the GP Now shareholding as at 30 June 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Fedel Conti, sworn 8 October 2024.

[2] Affidavit of Lucre John Davies, sworn 27 November 2024.

[3] Affidavit of Fedel Conti, sworn 25 November 2024.

[4] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [66] - [67] (French CJ, Kiefel, Bell, Gageler and Keane JJ) (CFMEU); Woods v Skyride Enterprises Pty Ltd [2012] WASC 4 [13] (EM Heenan J).

[5] Affidavit of Lucre John Davies, sworn 26 February 2025.

[6] See CJEA pt 5 div 1 (judgments requiring property to be given up) and pt 5 div 2 (other non-monetary judgments).

[7] R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208, 241 (Dixon J).

[8] Supreme Court Act 1935 (WA) s 6(2).

[9] Re Glew; Ex Parte the Honourable Michael Mischin MLC, Attorney General (WA) [2014] WASC 107 [5] (EM Heenan J).

[10] Yap v Matic [2022] WASC 181 (Yap); Yap v Matic [No 3] [2022] WASC 370 and Fu v Winstar Group Pty Ltd [No 3] [2020] WASC 222 (Fu), each case involving an alleged contempt by breaching an interlocutory injunction with no reference to CJEA s 98.

[11] See for example: Peterson v Ceccon [No 2] [2024] WASC 387 [18] (Lemonis J) (Peterson [No 2]); Mammoth Investments Pty Ltd v Donaldson [2024] WASCA 71 [14], [15] (Quinlan CJ) (Mammoth); Peterson v Ceccon [2023] WASC 488 [27] (Archer J) (Peterson); Yap [170]; Porter v Steinberg [2019] WASC 291 [36] ‑ [39] (Tottle J) (Porter).

[12] CFMEU [40]; Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaurdon JJ) (Witham); Kelly v Hilton [No 5] [2024] WASC 343 [27] (Seward J) (Kelly).

[13] Mammoth [17]; Yap [170]; Fu [31]; Caratti v Boban Pty Ltd (Administrators Appointed) [No 2] [2015] WASC 139 [85] (Mitchell J) (Caratti).

[15] Witham (534); Kelly [27]; Mammoth [17]; Yap [170]; Fu [31]; Briggs v Lunt [No 4] [2011] WASCA 145 [41] (Pullin JA) (Briggs).

[16] Consolidated Press Ltd v McRae [1955] HCA 11; (1955) 93 CLR 325, 333 (Dixon CJ, Kitto and Taylor JJ); Mammoth [17]; Caratti [85]; Briggs [41].

[17] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [29] (Beech J); Briggs [42].

[18] Tago v The State of Western Australia [2018] WASCA 59 [26] (judgment of the court); Deckers Outdoor Corp Pty Ltd v Farley (No 6) [2010] FCA 391 [147] (Tracy J).

[19] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] - [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (Baden-Clay); Kelly [284] - [287].

[20] MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130 [74] (judgment of the court) (MKP Management).

[21] See for example: Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456, 456 - 457 (Lord Templeman), 474 - 481 (Lord Noan) (with each of the other members of the court agreed); Forestview Nominees Pty Ltd v Perron Investments Pty Ltd [1999] FCA 405; (1999) 93 FCR 117; AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 112 (Gibbs CJ, Mason, Wilson and Deane JJ); Marron v Salvemini; Re Scardigno [1969] WAR 178, 180 (Hale J) (Marron).

[22] MKP Management [74] - [81]; Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153, 170 - 171 (Lord Reid).

[23] Mammoth Investments [15]; Peterson [27]; Yap [170]; Porter [38].

[25] Marron (178) (Hale J); Seaward v Paterson [1897] 1 Ch, 555, 560 (Lindley LJ).

[26] Attorney-General v Morrison [No 2] [2022] WASC 295 [24] - [26] (Morrison [No 2] (Curthoys J); Hurd v Zomojo Pty Ltd [2015] FCAFC 148 [93] (Besanko and Gilmour JJ) (Hurd); Attorney-General v Times Newspapers Ltd [1992] 1 AC 191, 200, 206, 214, 226, 230, 231 (Lords Keith, Brandon, Ackner, Oliver & Jauncey); Attorney- General v Punch Ltd [2002] EWCA Civ 1641; [2003] 1 AC 1046, 1057, 1061, 1072, 1077 (Nicholls, Steyn, Hoffman, Hope and Walker).

[27] Marron (180); Morrison [No 2] [24] - [26]; Hurd [93].

[28] Zhu v Treasurer of NSW [2004] HCA 56; 218 CLR 530, 571 [121] (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ); Hurd [93].

[29] Hurd [102]; Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585 [41] - [42] (Kiefel J); Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926, 936 (Woolf LJ).

[30] See for example: Hurd [104]; Zhang v Shi (No 5) [2021] VSC 695 [22] (Delany J); Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 [4] (Merkel J); Mahaffy v Mahaffy [2018] NSWCA 42 [116] - [125] (Simpson JA), [251] (Payne JA) (Mahaffy).

[31] Mahaffy [256] (Payne JA); [291] (Emmett J).

[32] Mahaffy [116] - [125] (Simpson JA); [251] - [252] (Payne JA); [291] (Emmett J).

[33] The State of Western Australia v Galati [No 4] [2017] WASC 162 (Tottle J) (Galati).

[37] Friedman Affidavit, pages 7, 12 and 13.

[41] Affidavit of Lucre John Davies, sworn 26 February 2025, page 4.

[43] Resolute Ltd v Warnes [2001] WASCA 4 [4] (judgment of the court) (Resolute); Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298 [11] (Wheeler).

[44] Allbeury v Corruption and Crime Commission [2012] WASCA 84 [215] (Buss JA) (Allbeury); Attorney General for Western Australia v Marijanich [2024] WASC 312 [29] McGrath J (Marijanich); Attorney General v Morrison [No 3] [2022] WASC 323 [10] (Curthoys J) (Morrison [No 3]); Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415 [15] (Le Miere) (Kenney); Chief Executive Officer, Department of Environment and Conservation v Szulc [No 2] [2011] WASC 315 [56] (Martin CJ) (Szulc); Resolute [5].

[46] AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 115 (Gibbs CJ, Mason, Wilson and Deane JJ (AMIEU); Resolute [5].

[47] Peterson [32]; Yap v Matic [No 6] [2023] WASC 24 [16] (Archer J) (Yap [No 6]).

[48] R v T [2022] WASCA 34; (2022) 58 WAR 77 [70] (judgment of the court) (R v T).

[50] R v T [110], [114]; Marijanich [35]; Yap [No 6] [18]; Morrison [No 3] [11]; Kenney [15]; Cossnes v Petta [No 3] [2015] WASC 492 [6] (Jenkins J) (Cossens); Szulc [56].

[51] Allbeury [252]; Yap [No 6] [18].

[52] See generally: R v T [106] - [118]; Allbeury [216] - [280]; Peterson [No 2] [67] - [73]; Marijanich [37]; Peterson [39]; Yap v Matic [No 7] [2023] WASC 55 [28] - [29] (Solomon J) (Yap [No 7]; Yap [No 6] [21]; Morrison [No 3] [12]; Galati [30] - [38]; Kenney [16]; Cossnes [10] - [27]; Szulc [52] - [75].

[53] Allbeury [238], [245], [248]; R v T [50], [96]; Marijanich [60]; Morrison [No 3] [34] - [35]; Cossnes [21].

[54] Peterson [103]; Yap [No 6] [33]; Kenney [25].

[55] Marijanich [86]; Morrison [No 3] [18], [24] - [27].

[56] AMIEU (114 - 115); The Owners of the Wills Building Strata Plan 38579 v Coleman [2018] WASC 219 [159] (Archer J) (Coleman).

[57] AMIEU (114 - 115) (reference omitted).

[58] Witham, 534, 530; Allbeury [61] - [64].

[59] Witham (534); CFMEU [42]; Galati [27]; Coleman [85].

[60] Dental Board of Australia v Traianou [2011] WASC 293 [37] (Beech J) (Traianou); Yap [No 6] [12] ‑ [13].

[63] R v T [114]; Yap [No 7] [50]; Traianou [38].

[69] Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [44] (Martin CJ).

[71] Cossnes [3]; Yap [No 6] [10] (notes orders at [58] granting liberty to apply to vary).

[73] Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ); Allbeury [8] (McLure P), [70]; Fu v Cha [No 4] [2020] WASC 292 [5] (Le Miere J) (Cha).

[74] Yap [No 6] [44] - [52]; Yap v Matic [No 4] [2022] WASC 422 [34] (Solomon J); Cha [5]; Traianou [69].

[75] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] (reasons of the court).