COSSENS -v- PETTA [No 2] [2015] WASC 313

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 313
Published:	20/08/2015
Case No:	CIV:2269/2012	Heard:	30 JUNE 2015
Coram:	JENKINS J	Delivered:	30/06/15
No of pages:	9	Judgment Part:	1 of 1
Result:	The defendant, Peter Petta, is guilty of contempt of court Warrant issued for the arrest of Peter Petta
Category:	B
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Parties:	GLORIA LUCY COSSENS (as beneficiary under the will of CARLOTTA PETTA) PETER PETTA (as trustee for CARLOTTA PETTA)
Catchwords:	Contempt Noncompliance with court order Whether alleged contemnor ought to be before the court prior to finding of contempt Power to issue warrant for arrest of alleged contemnor Elements of contempt of court for noncompliance with court order
Legislation:	Administration Act 1903 (WA), s 26 Non-Contentious Probate Rules 1967 (WA), r 27 Rules of the Supreme Court 1971 (WA), O 55 r 4, O 55 r 6, O 59 r 9
Case References:	Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; (1994) A Crim R 549 Cossens v Petta [2014] WASC 117 Hearne v Street [2008] HCA 36 Singh v Kaur Bal [No 3] [2012] WASC 243 Szulc v The Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA 143 The Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : COSSENS -v- PETTA [No 2] [2015] WASC 313 CORAM : JENKINS J HEARD : 30 JUNE 2015 DELIVERED : 30 JUNE 2015 PUBLISHED : 20 AUGUST 2015 FILE NO/S : CIV 2269 of 2012 MATTER : Will of CARLOTTA (otherwise known as CAROLINA) PETTA late of 24 Rathay Street, Victoria Park in the State of Western Australia, Housewife.

Sections 36, s 37 and 45 of the

Administration Act 1903

(WA)

Section 92 of the

Trustees Act 1962

(WA) and the Inherent Jurisdiction of the Court

BETWEEN : GLORIA LUCY COSSENS (as beneficiary under the will of CARLOTTA PETTA)

Plaintiff

AND

PETER PETTA (as trustee for CARLOTTA PETTA)

Defendant

Catchwords:

Contempt - Noncompliance with court order - Whether alleged contemnor ought to be before the court prior to finding of contempt - Power to issue warrant for arrest of alleged contemnor - Elements of contempt of court for noncompliance with court order

Legislation:

Administration Act 1903 (WA), s 26

Non-Contentious Probate Rules 1967 (WA), r 27
Rules of the Supreme Court 1971 (WA), O 55 r 4, O 55 r 6, O 59 r 9

Result:

The defendant, Peter Petta, is guilty of contempt of court

Warrant issued for the arrest of Peter Petta

Category: B

Representation:

Counsel:

Plaintiff : Ms M J Elliott

Defendant : No appearance

Solicitors:

Plaintiff : Elliott & Co

Defendant : No appearance

Case(s) referred to in judgment(s):

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cossens v Petta [No 2]

Details

AGLC: Cossens v Petta [No 2] [2015] WASC 313
Case: [2015] WASC 313
Decision Date: 20 AUGUST 2015

CaseChat Overview and Summary

In Cossens v Petta, the matter before the court involved a dispute regarding non-compliance with a court order. The plaintiff, Cossens, sought to hold the defendant, Petta, in contempt of court for failing to adhere to a previous court order. The case was heard and determined by the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant ought to be brought before the court prior to a finding of contempt, particularly in cases involving non-compliance with a court order. Additionally, the court had to determine the power of the court to issue a warrant for the arrest of an alleged contemnor and the elements required to establish contempt of court in such circumstances. The court was required to weigh the principles of natural justice against the need to enforce court orders and ensure the integrity of the judicial process.

In reaching its decision, the court found that the defendant, Petta, was indeed guilty of contempt of court due to his non-compliance with the court order. The court emphasised the importance of enforcing court orders and the inherent power of the court to do so. The court determined that, while it is generally desirable for a contemnor to be given an opportunity to be heard, this is not an absolute requirement in all cases, particularly where there is clear evidence of non-compliance. The court issued a warrant for the arrest of Peter Petta to bring him before the court to address the contempt. The court's ruling underscored the need to uphold the authority of the court and ensure that its orders are respected and enforced.

The final orders of the court were that Peter Petta is guilty of contempt of court, and a warrant was issued for his arrest.

Orders

Orders of the court

The defendant, Peter Petta, is guilty of contempt of court

Warrant issued for the arrest of Peter Petta

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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