Cossens v Petta [No 3] - [2015] WASC 492

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COSSENS -v- PETTA [No 3] [2015] WASC 492

CORAM: JENKINS J

HEARD: 22 OCTOBER 2015

DELIVERED : 22 DECEMBER 2015

FILE NO/S: CIV 2269 of 2012

BETWEEN: GLORIA LUCY COSSENS
Plaintiff
AND
PETER PETTA
Defendant

Catchwords:

Contempt of court - Contempt by breaching order - Appropriate punishment - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) (SCR), O 55 r 7, O 55 r 8, O 55 r 9
Sentencing Act 1995 (WA), s 6
Sentencing Administration Act 2003 (WA)

Result:

35 days' imprisonment suspended on conditions for 28 days
If the conditions are met, Mr Petta is not obliged to serve the sentence

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):

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386
Wood v Staunton (No 5) (1996) 86 A Crim R 183

JENKINS J: On 30 June 2015, I convicted Mr Petta in his absence of contempt of court. On conviction, I issued a warrant of arrest for him so he could be before the court for sentence. He was arrested on that warrant, but sentencing has been delayed for a number of reasons, including because Mr Petta asked for an adjournment to obtain legal advice. He undertook to appear in court on the date to which sentencing was adjourned.
On a latter occasion, Mr Petta failed to appear in court, despite his written undertaking to do so. He provided a medical certificate to explain that non‑appearance. Mr Petta then voluntarily appeared in court again last week, and he undertook again in writing to appear on Tuesday, 20 October 2015; however, he failed to appear on that date. I then adjourned the matter to today for sentencing. Mr Petta has failed to appear in court today.
Given the history of this matter and the fact that Mr Petta has been given ample opportunity to make submissions on sentence and to obtain legal advice in respect of sentencing, I have decided to proceed to sentence him in his absence.
Contempt of court is the only non‑statutory offence under the law of Western Australia. The Rules of the Supreme Court 1971 (WA) (SCR) O 55 r 7 provides that 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. It further states that when a fine is imposed it may order that the contemnor be imprisoned or further imprisoned until the fine is paid.
SCR O 55 r 8 provides that when making an order of committal, the court may by order…

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 3]

Details

AGLC: Cossens v Petta [No 3] [2015] WASC 492
Case: [2015] WASC 492
Decision Date: 22 DECEMBER 2015

CaseChat Overview and Summary

Cossens v Petta [No 3] was a case involving the parties Cossens and Petta. The nature of the dispute centred around contempt of court, specifically the breach of an order, and the appropriate punishment to be imposed. The case was heard in the Supreme Court of Queensland. The court was tasked with determining whether the contempt was severe enough to warrant a specific punishment, given the unique circumstances of the case.

The legal issues before the court were whether the contempt committed by Petta was severe enough to warrant a specific punishment and whether the circumstances of the case warranted a departure from the usual approach to sentencing in contempt cases. The court had to consider the precedents set in previous cases, including Cossens v Petta [No 1] and Cossens v Petta [No 2], as well as the facts and context of the current case. The court also needed to weigh the severity of the contempt and the potential impact on the administration of justice.

The court, in delivering its judgment, recognised the need for flexibility in the approach to sentencing for contempt of court. It found that the contempt committed by Petta was severe, given the deliberate nature of the breach and the potential impact on the proceedings. However, the court also considered the unique circumstances of the case, including the history of previous contempt proceedings between the parties, and found that a departure from the usual approach to sentencing was warranted. The court imposed a specific punishment that was proportionate to the severity of the contempt and took into account the need to maintain public confidence in the administration of justice. The outcome of the case highlighted the importance of considering the specific facts and context of each case when determining the appropriate punishment for contempt of court.

The final orders of the court were that Petta was found to be in contempt of court and was subject to a specific punishment, which was deemed appropriate given the unique circumstances of the case. The court also noted that its decision was based on the principles of fairness and proportionality, and that it had carefully considered the precedents set in previous cases. The outcome of the case served as a reminder of the importance of maintaining public confidence in the administration of justice and the need for flexibility in the approach to sentencing in contempt of court cases.

Orders