An Analysis of Keogh v Bartlett [2026] WASC 166
1. Introduction
The Supreme Court of Western Australia’s decision in Keogh v Bartlett [2026] WASC 166 is a significant statement on the enforcement of mediation confidentiality. Cobby J convicted the first defendant, Mr Bartlett, and the corporate second defendant, FMR Investments Pty Ltd, of civil contempt for disclosing the content of a court-ordered mediation to two State prosecutors at the Office of the Director of Public Prosecutions, in contravention of s 71(1) of the Supreme Court Act 1935 (WA). Each defendant was fined $50,000 and ordered to pay the plaintiff’s costs on an indemnity basis.
For practitioners, the decision warrants attention beyond the immediate parties for three reasons. First, it confirms that s 71(1) captures everything said in the course of a court-ordered mediation, including the kind of ‘off the record’ private side conversation that some clients (and, perhaps, some practitioners) treat as outside the formal mediation. Second, it dispels any assumption that the trio of concession, apology and undertaking will automatically purge a contempt — Cobby J expressly declined to find that the defendants had purged their contempts and observed that the question of purging will depend upon all of the circumstances of the case. Third, the quantum of penalty marks a substantial departure from the $5,000 fine imposed by Seaward J in Kelly v Hilton [No 6] [2025] WASC 43 for analogous conduct, on the express ground that the fine must bite. Calibrating fines to the contemnor’s means is now a matter of principle, not exception.
The decision affects every civil litigator and every party who attends a court-ordered mediation in Western Australia.
2. Relevant Legal Framework
2.1 The statutory obligation
Section 71(1) of the Supreme Court Act 1935 (WA) provides that, subject to s 71(3), evidence of anything said or done, any communication (oral or in writing), or 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. Section 71(3) provides exceptions to that protection, including (relevantly here) the case where the parties to the mediation consent to the admission of the evidence: s 71(3)(a).
In C v M [2011] WASC 175 [65]–[70], K J Martin J held that s 71(1) creates an express statutory obligation of confidence separate from the without-prejudice privilege implicit in the section. Cobby J adopted his Honour’s reasoning at [8].
2.2 Mediation as a fundamental component of civil litigation
The importance of mediation to the civil justice system in Western Australia has long been emphasised by the Supreme Court and the Court of Appeal. In West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164, Owen JA referred to the ‘critical importance of mediation in the modern case management process’ at [3] and [6], and Buss JA described mediation as ‘an essential and important feature in the management of contemporary litigation’ at [118]. In C v M at [25], K J Martin J observed that less than three per cent of civil actions filed in the Supreme Court of Western Australia proceed to a resolution at trial, and that court-ordered mediation ‘render[s] an indispensable service to the quelling of civil disputes in this State’.
The protective force of s 71(1) is the corollary of mediation’s centrality. As Smith J explained in Blenkinsop v Herbert [2020] WASC 196 at [36], anything said or done in a mediation is strictly confidential, so that no participant should disclose any information disclosed during the mediation unless all parties agree or disclosure is required or authorised by law. Seaward J echoed this in Kelly v Hilton [No 6] at [71], observing that the disclosure of confidential information from such a conference has the potential to undermine the utility of mediation in the substantive matter and the administration of justice more broadly.
2.3 Contempt — civil or criminal
The distinction between civil and criminal contempt was addressed in Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [61]–[62]. The proceedings before Cobby J were conducted on the common basis that the conduct constituted civil contempt, brought to secure the defendants’ obligation as to confidentiality. His Honour expressly left open at [16] the question whether unauthorised disclosure of mediation material may also constitute criminal contempt, on the basis that the conduct interferes or tends to interfere with the course of justice — citing Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682, 688; Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449; and Gazal v Setiawan [2024] NSWSC 1008 [67]. The standard of proof for either species is proof beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534.
2.4 Penalty principles and the doctrine of purging
The penalty for contempt is in the discretion of the court (Resolute Ltd v Warnes [2001] WASCA 4 [5]) and must be effective; otherwise ‘serious damage to the fabric of the law may result’ (AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 115). In Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 at [46], Gething J catalogued the relevant sentencing factors: seriousness, culpability, motive, benefit, remorse, the timing and nature of any plea, personal circumstances, character, criminal record, prior contempts, compliance with other orders, personal and general deterrence, and denunciation.
The doctrine of purging contempt was reviewed by Seaward J in Kelly v Hilton [No 6] at [16]–[21]. Drawing on Wilson LJ’s formulation in CJ v Flintshire Borough Council, her Honour held that purging ordinarily means to atone for, eradicate, or cleanse the contempt of its previous ill-effect, but that this concept fits more comfortably with breaches of mandatory orders than prohibitory ones. The ‘better view’, her Honour accepted, is that all forms of contempt should be capable of being purged, with what suffices to depend on the particular circumstances. Steps ordinarily required include a genuine and unreserved apology, an offer of compensation, and an offer to pay indemnity costs — but, critically, no single step (or combination of them) automatically purges the contempt. The court retains a discretion to require additional steps or impose a penalty proportionate to the contempt.
3. The Facts of the Case
3.1 The criminal proceedings and acquittal
The plaintiff, Mr Patrick Rhyan Keogh, was a former employee of FMR Investments Pty Ltd, of which Mr Bartlett was a director. In March 2023 the plaintiff was tried on charges including stealing as a servant and property laundering relating to gold-bearing ore allegedly taken in the course of his employment (at [18]). His defence was that Mr Bartlett had given him permission to take the ore. Following a direction that the jury could not convict unless satisfied beyond reasonable doubt that Mr Bartlett’s evidence to the contrary was honest and reliable (at [19]), the plaintiff was acquitted on 28 March 2023 (at [20]).
3.2 The civil proceedings and the order to mediate
On 24 August 2023, FMR Investments commenced civil proceedings in CIV 1957 of 2023, arising out of the same conduct as the criminal trial (at [21]). On 18 January 2024 Musikanth J ordered the action to mediation; the mediation was held on 6 May 2024 before a registrar of the Supreme Court (at [22], [25]).
By March 2024, the State had charged the plaintiff with seven further counts of causing a detriment by fraud, alleging unauthorised payments via inflated subcontractor invoices, with trial listed for September 2024 (at [23]). On 1 April 2024 the plaintiff’s counsel informed the DPP that the defence would again rest on Mr Bartlett’s permission, and invited the prosecution’s discontinuance on public interest grounds (at [24]).
3.3 The ‘off the record’ side conversation
After an initial joint session before the registrar, the parties were placed in separate rooms for the balance of the mediation (at [27]). At some point a conversation occurred between the plaintiff and Mr Bartlett, in the absence of the registrar and the parties’ lawyers (at [27]). Mr Bartlett’s evidence was that he treated the conversation as ‘off the record’ and did not see it as part of the formal mediation (at [28]). On his own account, that conversation included the parties’ settlement proposals (at [29]).
3.4 The disclosure to the DPP
Mr Bartlett gave a statement to police in April or May 2024 about the second criminal charges, then met two State prosecutors, Mr Sertorio and Ms Crouch, at the DPP on 31 May 2024 (at [30]). Mr Sertorio prepared a near-contemporaneous file note of the meeting (at [32]).
The two men’s recollections of what was said at the meeting differed. Cobby J, applying the criminal standard of proof for both liability and penalty (Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 at [35]), declined to make findings adverse to the defendants where the accounts diverged but found beyond reasonable doubt that Mr Bartlett disclosed the content of his conversation with the plaintiff at the mediation, including the settlement amounts each side had proposed (at [39]); that he did so to convince the DPP to continue the prosecution, having been told there was only a 50/50 chance the trial would proceed (at [38], [41]); and that he told Mr Sertorio, in substance, that he assumed FMR Investments would sue the plaintiff in respect of the matters underlying the second set of charges (at [40]).
The DPP discontinued the prosecution on Mr Sertorio’s independent assessment of its prospects, notwithstanding Mr Bartlett’s attempt to convince the DPP otherwise (at [48], [53]).
3.5 The contempt motion and the defendants’ summons
On 26 July 2024, the plaintiff filed an originating motion for committal (at [1]). On 19 August 2024, the defendants filed a summons to be discharged of, or alternatively to limit the penalty for, their contempt (at [2]). Affidavits were filed by Mr Bartlett and by Mr Watson, the finance director of FMR Investments. Neither deponent was cross-examined (at [3]).
4. Analysis of the Court’s Reasoning
4.1 The scope of s 71(1)
Cobby J rejected 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 (at [9]). The text of s 71(3)(a)–(c) makes plain that the obligation is owed to the parties to the mediation, who alone have power to consent to admission, and that each such party has standing to enforce a breach (at [9]). Critically, his Honour also held at [10] that the obligation requires that the matters identified in s 71(1)–(2) not be disclosed to any person not a party to the mediation — including invitees who attend but are not parties or agents of parties.
That holding has direct bearing on the ‘off the record’ issue. There is no carve-out in s 71(1) for private side conversations between parties during a mediation. A party who treats such a conversation as outside the formal mediation does so at their peril; the obligation extends to anything said or done in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction.
4.2 Findings of contempt and corporate liability
Cobby J found beyond reasonable doubt, consistent with the defendants’ concession, that Mr Bartlett’s disclosure on 31 May 2024 contravened s 71(1) and that he made the disclosure with the intention of convincing the DPP to continue the prosecution (at [41]).
His Honour disposed of the corporate liability question on two bases (at [42]–[44]). First, as FMR Investments was the complainant in the criminal proceedings and the party to the civil proceedings, Mr Bartlett’s intention and conduct at the meeting was the conduct of FMR Investments. Second, even if that were not so, a corporation is liable for contempt where it authorised the conduct or failed to take proper steps to prevent it: Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531 at [63], [106]; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275; (2013) 234 IR 59 at [60]. Mr Watson’s affidavit acknowledged that FMR Investments ‘should have ensured that all attendees at the mediation, including [Mr Bartlett] understood … the confidentiality requirements’ (at [43]).
4.3 The purging argument
The defendants’ principal contention was that they had purged their contempt by conceding the contempt, apologising to the plaintiff and the court, giving an undertaking not to further publish the information, and offering to pay costs on an indemnity basis (at [45]–[46]). Cobby J rejected that contention on three grounds.
First, the absence of benefit was not attributable to anything the defendants had done. Mr Bartlett conceded that he attempted to convince the DPP to continue the prosecution; the only reason he failed was Mr Sertorio’s independent assessment of the prospects. There was, his Honour observed, ‘little more that Mr Bartlett could have done to achieve his admitted goal’ (at [53]). Where the failure to obtain a benefit is not due to any restraint or correction by the contemnor, submissions about the absence of benefit carry little weight (at [60]).
Second, the apology was significantly delayed. Mr Bartlett knew of the contempt allegation in mid-June 2024 while in Europe, where he had no demonstrated impediment to communication. He returned to Perth on 3 July 2024 and left on a fishing trip on 6 July 2024 (with continuing telephone and internet access) until 9 August 2024. His apology emerged only with the affidavits filed on 19 August 2024 (at [54]–[57]). The court accepted the apology as genuine but gave it ‘significantly less weight than it might otherwise have received, given his failure to address his contempt in a timely manner’ (at [58]).
Third, the public interest in safeguarding mediation confidentiality told against a finding of purging. Given the potential for damage to the administration of justice arising from disclosure of mediation content, a finding that the defendants had purged their contempts would not be in the interests of justice (at [61]).
4.4 Penalty and the calibration to means
His Honour held that an order for indemnity costs alone would not be a punishment proportionate to the contempt nor a sufficient general deterrent (at [62]–[63]). General deterrence was an important consideration, given the function of s 71(1) in the resolution of litigation without trial (at [64]).
Although neither defendant led evidence of their financial position (at [66]), Cobby J inferred that Mr Bartlett was a person of substantial means from his Applecross residence, his shared ultimate beneficial ownership of a unit trust owning the Gordon Sirdar Gold Mine and the Greenfields Mill, his Busselton house, his month-long European holiday, and his fishing boat with offshore telecommunications (at [67]). FMR Investments’ resources were apparent from its $100 million annual turnover and unrefined gold ore worth between $4 million and $8 million held at Mr Bartlett’s residence (at [68]). Counsel for the defendants made no case as to inability to pay (at [69]).
His Honour expressly compared the present case to Kelly v Hilton [No 6], where Seaward J had imposed a $5,000 fine for analogous disclosure of mediation content to police. The amount was held to be an inadequate response in the present case: ‘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’ (at [76]). It is appropriate, his Honour held, 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: Peterson v Ceccon [2023] WASC 488 at [103]. The intended order for indemnity costs was a relevant factor in calibrating the fine: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; 196 ALR 350 at [53] (at [78]).
The result was a $50,000 fine on each defendant — a tenfold increase on Kelly v Hilton — and indemnity costs of both the originating motion and the defendants’ summons.
5. Assessing the Consequences: Quantification of Penalty
The aggregate financial consequence to the defendants is materially greater than the headline fines suggest. Adding the $100,000 in fines to the costs of the two applications on an indemnity basis yields a likely total exceeding $200,000, before accounting for the defendants’ own legal costs of resisting the originating motion and prosecuting the failed summons.
Three features of his Honour’s reasoning are worth isolating.
First, the court drew the inference of substantial means from indicia rather than financial statements. A defendant who declines to lead evidence of financial position cannot expect the court to assume modest circumstances; the inference from observable wealth (residences, holidays, business interests) operates against them. This is a deliberate evidentiary message: where means are at large, mute defendants will be assumed to have means.
Second, the comparison with Kelly v Hilton [No 6] is unusually direct. In Kelly v Hilton, Seaward J imposed $5,000 for analogous conduct (disclosure of mediation material to police), as a component of a $30,000 aggregate fine across 17 contempts. Cobby J held that figure could not represent a tariff for the present defendants because $5,000 ‘would not be an effective punishment’. The implication is that fines for s 71 contempts are not subject to a fixed quantum but must be set at a level that achieves general deterrence in the case at hand.
Third, the indemnity costs order operates both as a punitive component and as a factor in moderating the fine. His Honour expressly noted at [78] that the prospect of indemnity costs is a factor to be taken into account in imposing penalty, citing CFMEU v BHP at [53]. Practitioners should not assume that indemnity costs and fines are alternative remedies; they will commonly run together.
6. Worked Example
Consider a hypothetical applicant — a director of a privately owned construction company involved in a Supreme Court action against a former senior employee for breach of fiduciary duty. The action is referred to court-ordered mediation. During the mediation the parties spend several hours in separate rooms. The director steps out for coffee and runs into the former employee in the lobby. They speak for fifteen minutes, away from the mediator and the lawyers. The director discloses, in confidence, that the company is willing to settle for $80,000 to make the litigation go away.
Three weeks later, the director is interviewed by police about a separate matter — an allegation, made by the former employee, that the company underpaid superannuation. To pre-empt that allegation, the director tells the investigating officer: ‘Look, this is the same employee who was demanding $200,000 from us at mediation last month. We were prepared to pay $80,000 just to be rid of him.’
On the analysis in Keogh v Bartlett, the director’s disclosure to police almost certainly contravenes s 71(1). The lobby conversation is captured because it is a communication in the course of or for the purposes of an attempt to settle a proceeding by mediation under direction; nothing in s 71(1) carves out informal exchanges that occur during the mediation but outside the mediation room. The disclosure to police of (i) the figure the company was prepared to pay and (ii) the figure the employee was demanding is disclosure to a person not a party to the mediation.
If the former employee learns of the disclosure (perhaps because the police mention it in a subsequent interview), an originating motion for committal is open. Were the matter to proceed, the director would face a finding of civil contempt (and possibly criminal contempt, on the question Cobby J left open at [16]); a substantial fine, calibrated to the director’s means — on Cobby J’s reasoning, more in the order of $30,000 to $50,000 than the $5,000 of Kelly v Hilton; an indemnity costs order on at least the originating motion; and vicarious exposure of the company.
A timely apology, undertaking, and offer of compensation might mitigate the penalty but, as Keogh v Bartlett makes clear, will not automatically purge the contempt. Where the disclosure was strategically motivated, submissions to the effect that ‘no harm was done’ will carry little weight where the absence of harm is fortuitous rather than contemnor-driven. The director’s position would be markedly different had he, on realising his error, immediately notified the former employee’s solicitors of the disclosure, apologised in writing the same day, provided police with a written correction confirming the disclosure was not to be relied upon, offered indemnity costs and a fixed sum of compensation, and caused the company to direct that all future mediation attendees be briefed on s 71. Even so, on the reasoning in Keogh v Bartlett, purging is not automatic. The court retains discretion.
7. Practitioner Guidance: A Step-by-Step Framework
The following framework is derived from the principles stated by Cobby J at [9]–[78].
Step 1 — Brief every attendee on s 71 before the mediation.
A corporation acts through its officers; if the attending director or representative does not understand the scope of s 71, the corporation is exposed (at [43]). The brief should expressly address that side conversations during the mediation, including those between parties without lawyers present, are within s 71.
Step 2 — Treat any communication between arrival and departure as confidential.
Section 71(1) is not confined to formal sessions before the mediator. It captures anything said or done in the course of or for the purposes of an attempt to settle. Practitioners should advise clients that there is no concept of ‘off the record’ conversations during a mediation that escape s 71 (at [10], [27]–[29]).
Step 3 — If a contempt allegation is made, address it at once.
A delayed apology will be discounted (at [54]–[58]). Practitioners should not allow holidays or trips to derail the response. If the client is overseas or otherwise unavailable, contemporaneous evidence of the impediment should be assembled.
Step 4 — Concede contempt early if the conduct is plainly captured by s 71.
A late concession is given less weight than an early one. The defendants’ concession in Keogh v Bartlett came only after the file note was disclosed by the plaintiff’s solicitors (at [54]).
Step 5 — Offer purgative steps proactively, but do not rely on them.
Apology, undertaking, offer of compensation, and offer of indemnity costs are the conventional steps (per Kelly v Hilton [No 6] at [21]). The court may regard them as insufficient where the absence of benefit was fortuitous (at [60]).
Step 6 — Address the absence of benefit rigorously.
If the contemnor positively withdrew the disclosure or took steps to neutralise it, that should be shown by evidence. If the absence of benefit is solely attributable to a third party’s independent decision, the court will assign little weight to the submission (at [60]).
Step 7 — Lead financial evidence where it is favourable.
Where the contemnor is of modest means and the fine threatens disproportionate hardship, lead evidence to that effect: Peterson v Ceccon [2023] WASC 488 at [103]. Where the contemnor has substantial means, silence is not neutral — the court will infer means from observable indicia (at [66]–[68]).
Step 8 — Anticipate indemnity costs.
Indemnity costs are now standard for s 71 contempts: at [78], [80]. Quantify the likely order at the outset to inform the client.
Step 9 — For corporations: consider proactive policy steps.
The corporate liability discussion at [42]–[44] gives obvious mitigation arguments to corporations that have implemented attendance protocols, mediation briefings, and post-mediation debriefs. Drafting and adoption of such protocols is a sensible response to Keogh v Bartlett.
Step 10 — Remember the open question on criminal contempt.
Cobby J left open at [16] whether breach of s 71 may also be criminal contempt. Practitioners should not assume that an admitted s 71 breach will always be characterised as civil only.
8. Evidence and Arguments Available to Each Side
8.1 The applicant for committal
An applicant should focus on the objective fact of disclosure: section 71(1) is breached by disclosure simpliciter, with intent and benefit going to penalty rather than liability. Evidence of motive is critical — disclosure made to procure a forensic or commercial advantage attracts a higher penalty (at [51]–[53]). Evidence of the contemnor’s means is admissible from real estate, business interests, holidays and other lifestyle indicia: Keogh v Bartlett shows that such evidence will be acted on even in the absence of formal financial statements (at [67]). Communications between solicitors will often disclose when the contemnor first knew of the allegation and what steps were taken, providing evidence of any delay in apology (at [55]–[57]). Evidence (such as Mr Sertorio’s file note in the present case) that a third party’s independent decision was the only thing preventing the contemnor from achieving his or her aim is critical to demonstrating that the absence of benefit is fortuitous (at [48], [53]). Where the contemnor is of substantial means, applicants should argue that the Kelly v Hilton tariff is too low — exactly the argument adopted by Cobby J at [76].
8.2 The respondent (alleged contemnor)
A respondent should consider whether the disclosure was made in the honest (if mistaken) belief that the conversation fell outside s 71 — although Keogh v Bartlett shows that an ‘off the record’ subjective belief will not negate liability, it may go to culpability. Time-stamped evidence of prompt and proactive apology, withdrawal, and corrective steps should be assembled, ideally pre-dating the originating motion. Self-reporting to the opposing party is a powerful purgative step. Where the contemnor is a corporation in financial distress or an individual on modest means, financial evidence should be led: Peterson v Ceccon. Silence carries the risk identified in Keogh v Bartlett at [67]. For corporate respondents, evidence that mediation attendance protocols and confidentiality briefings have been instituted post-incident may mitigate (at [43]). An early and unconditional concession remains a mitigating factor under Perpetual Trustee v Pascoe Partners at [46], and an offer (or actual payment) of compensation for any actual prejudice caused is ordinarily relevant: Kelly v Hilton [No 6] at [21].
9. Key Takeaways for Legal Practice
1. Section 71(1) covers everything said in the mediation. There is no carve-out for ‘off the record’ side conversations between parties during a court-ordered mediation. Cobby J’s holding at [10] that confidentiality applies in respect of disclosure to any person not a party to the mediation leaves no room for an informal-conversation exception (at [27]–[29]).
2. Concession, apology and undertaking will not automatically purge a contempt. The court retains discretion to require additional steps or to impose a substantial penalty notwithstanding (at [60]; Kelly v Hilton [No 6] at [16]–[21]).
3. Delay in apologising materially weakens its weight. A contemnor who learns of an allegation and prioritises a holiday or fishing trip over corrective action will see the apology discounted (at [55]–[58]).
4. Fines are calibrated to the contemnor’s means. Kelly v Hilton’s $5,000 figure is not a tariff. Where the contemnor has substantial means, fines will be set at a level that secures effective punishment and general deterrence (at [76]–[77]).
5. Silence on financial position is dangerous. A respondent who declines to lead financial evidence will not be assumed to be of modest means; the court will infer wealth from observable indicia (at [66]–[68]).
6. Indemnity costs and fines run together. The two remedies are cumulative, with the indemnity costs order operating as a factor in the calibration of the fine, not in substitution for it (at [78]).
7. Corporations are liable through the conduct of their directors. A corporation that fails to brief an attending director on s 71 confidentiality is exposed to contempt liability vicariously and may also be liable for failure to take proper steps to prevent the contempt: Lade & Co Pty Ltd v Black (at [43]).
8. The motive to obtain a forensic advantage aggravates. Disclosure made to influence prosecutorial decision-making, or to gain leverage in associated civil proceedings, will be treated more seriously than inadvertent or accidental disclosure (at [51]–[52]).
9. The absence of benefit must be earned, not fortuitous. Submissions about lack of benefit carry weight only where the contemnor’s restraint produced that outcome. Where a third party’s independent decision is the sole reason no benefit accrued, the absence of benefit is irrelevant to penalty (at [60]).
10. The professional and systemic stakes are significant. Cobby J’s repeated emphasis on the public-interest function of mediation confidentiality at [11]–[14], [61] and [64] makes plain that the court will treat s 71 breaches as a structural threat to civil case management, not as private grievances between parties.
10. Conclusion
Keogh v Bartlett sharpens the message that mediation confidentiality is not a soft norm but a statutory obligation enforceable by substantial penalty. Three propositions are now firmly settled in Western Australia.
First, s 71(1) reaches every communication during the course of a court-ordered mediation, including private side conversations that the parties may have intended to treat as informal. The ‘off the record’ gambit is foreclosed.
Second, the conventional purgative trio of concession, apology and undertaking does not automatically cleanse the contempt. The court will assess the timing, motive, restraint and corrective steps in each case, and decline to find purging where to do so would not be in the interests of justice.
Third, fines for s 71 contempts must bite. Kelly v Hilton’s $5,000 figure was a function of that contemnor’s circumstances, not a tariff. The means-tested approach in Keogh v Bartlett — $50,000 each, plus indemnity costs — is now the benchmark for contemnors of substantial wealth.
For practitioners, the operational message is straightforward. Brief every attendee at every court-ordered mediation on the scope of s 71 before the mediation begins. Address allegations of breach the moment they are made. And do not rely on the apology-and-undertaking response alone to escape penalty.