By Gad Coffie
Mediation is undoubtedly a facilitative step in any litigation. Save in a limited set of exceptions, strict confidentiality applies to what is discussed in mediation. In Keogh v Bartlett [2026] WASC 166, the Supreme Court, constituted by Cobby J, emphasised this point.
The plaintiff in this case by originating motion sought orders to the effect that the defendants have committed contempt of court by their disclosure of settlement negotiations at a mediation to the office of the Director of Public Prosecutions (DPP) in contravention of s 71 of the Supreme Court Act 1935 [1]. The first defendant is a company director and the second defendant, the company. The plaintiff was a former employee of the second defendant.
The defendants conceded that they committed civil contempt. They however argued that it is not expressly stated to whom the obligation of confidentiality in s 71 is owed. The Court did not accept this submission, with His Honour observing at [9] that:
[i]t 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.
Key facts and evidence
In March 2023, the plaintiff was tried for criminal charges that included stealing as a servant and property laundering. The plaintiff defended those charges primarily on the basis that the first defendant gave him permission to take the property that he was alleged to have stolen – gold bearing ore [18] – [19]. The plaintiff was acquitted of those charges [20]. In August 2023, the second defendant commenced civil proceedings (civil matter) against the plaintiff out of the same conduct the subject of the criminal charges [21].
In January 2024, the Court ordered that the civil matter be referred to mediation. Though not relevant for present purposes, this action did not settle and judgment was delivered recently; FMR Investments Pty Ltd v Keogh [2026] WASC 138.
In March 2024, the plaintiff was charged with a further seven counts of causing detriment by fraud (second set of charges); listed for trial in September 2024. Counsel for the plaintiff in this criminal matter informed the DPP in April 2024 that “the plaintiff intended to defend these charges on the basis that the first defendant had given him permission to engage in the conduct the subject of each charge” [24].
Meanwhile, in May 2024, the civil matter proceeded to mediation before a registrar [25] – [29].
In his evidence, the first defendant affirmed that he gave a statement to the police about the second set of charges in “April or May 2024, and then met with two state prosecutors … at the offices of the DPP on 31 May 2024” [30]. Of that meeting, His Honour made the following finding at [41]:
I am therefore satisfied beyond a reasonable doubt, consistent with the defendants’ concession, that [the first defendant] disclosed the content of a conversation between he and the plaintiff at the mediation conference to [the DPP] on 31 May 2024, that he did so in order to convince [the DPP] to continue the prosecution of the plaintiff, and that his doing so contravened s 71(1) of the Act.
Ultimately, the DPP decided not to proceed with the second set of charges.
Penalty
With contempt established (even if conceded), the Court considered whether the defendants had done enough to purge themselves of their contemptuous conduct. In resolving this question, the Court relied on the indicia used by Seaward J (as her Honour then was) in Kelly v Hilton [No 6] [2025] WASC 43 – a test originally formulated by Wilson LJ in CJ v Flintshire Borough Council [2010] 2 FLR 1224 for this exact purpose.
It was submitted on behalf of the defendants that they purged their contempt by the “filing of their affidavits in opposition to the originating motion, which contained apologies to the plaintiff and the court” and “by undertaking not to further publish the information discussed at the mediation” [45]. It was also contended that although the first defendant attempted to convince the DPP to proceed with the prosecution, and that there were obvious advantages to the civil matter should the criminal matter proceed to trial beforehand, no benefit was gained [47] – [48].
The Court held that the defendants’ concession and apology were somewhat belated. His Honour went on to note that the second set of charges did not procced as a result of the independent assessment by the DPP of the prospects of successfully prosecuting the plaintiff. As His Honour noted, “there was little more that [the first defendant] could have done to achieve his admitted goal of having that prosecution proceed” [53] – [58].
In the end, a fine of $50 000 was imposed on each defendant. The defendants were also ordered to pay the costs of the plaintiff. In determining the appropriate penalty, of the first defendant, His Honour observed:
I infer that [the first defendant] is a person of substantial means from the facts that he resides in Applecross; shares in the ‘ultimate beneficial ownership’ of a unit trust … 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. [67]
The above reference to the first defendant’s means is derived, in part, from the explanation he advanced as reason for conceding the allegation of contempt at the time he did.
Crucially, the Court observed that as the first defendant’s disclosure to the DPP did not lead to the effect he desired, his conduct does not warrant a term of imprisonment [70]. In my view, this is likely to be a critical submission in comparable civil contempt cases in the future as to whether a custodial sentence is imposed as penalty (bearing in mind though that in accordance with O 55 r 7 of the Rules of the Supreme Court 1971, there is no maximum penalty for contempt).
Reflections
From this decision there are a number of important lessons for both litigants and practitioners. Two of the most consequential are the following.
First, it is important to observe the confidentiality of mediation proceedings unless either expressly waived by consent (for the purposes of facilitating the proceedings) or if one of the other exceptions in s 71(3) applied. This is not a suggestion; it is a statutory obligation, and Cobby J has made it clear that the Court will not turn a blind eye to any contravention of this obligation.
Second, it is important that when an error is detected, acts of remediation are not delayed. This turned out to be a defining consideration of the Court’s finding that the first defendant did not purge himself of his contemptuous conduct.
