Peterson v Ceccon
[2023] WASC 488
•19 DECEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PETERSON -v- CECCON [2023] WASC 488
CORAM: ARCHER J
HEARD: 18 & 19 DECEMBER 2023
DELIVERED : 19 DECEMBER 2023
FILE NO/S: CIV 2018 of 2023
BETWEEN: JASON WILLIAM GOULD PETERSON
First Plaintiff
CELTIC CAPITAL PTY LTD AS TRUSTEE FOR THE CELTIC CAPITAL TRUST
Second Plaintiff
AND
CRISTINA CECCON
Defendant
Catchwords:
Contempt - Breach of injunction - Appropriate penalty - Imprisonment unless fine and costs paid
Legislation:
Rules of the Supreme Court 1971 (WA)
Sentencing Act 1995 (WA)
Result:
Defendant ordered to serve 3 months imprisonment, such order not to be executed if, by 9 January 2024, the defendant pays a fine of $25,000 and costs of $28,000
Category: B
Representation:
Counsel:
| First Plaintiff | : | J MacLaurin SC |
| Second Plaintiff | : | J MacLaurin SC |
| Defendant | : | In person |
Solicitors:
| First Plaintiff | : | Armeli & Molony Lawyers |
| Second Plaintiff | : | Armeli & Molony Lawyers |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 5] [2023] WASC 116
Brennock & Dixon v Norman [2021] NSWSC 1182
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Celtic Capital Pty Ltd as trustee for the Celtic Capital Trust v Ceccon [2022] WASC 205
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Dental Board of Australia v Traianou [2011] WASC 293
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
In the Marriage of Tate [No 3] [2003] FamCA 112; (2003) 30 Fam LR 427
Infa‑Secure Pty Ltd v Crocker (No 2) [2016] FCA 202
Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111
Kennedy v Lovell [2002] WASCA 226
Porter v Steinberg [2019] WASC 291
Potato Marketing Corporation of Western Australia v Galati [No 2] [2016] WASC 315
R v T [2022] WASCA 34; (2022) 58 WAR 77
Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Truong v The State of Western Australia [2020] WASCA 177
Yap v Matic [No 6] [2023] WASC 24
ARCHER J:
(This judgment was delivered extemporaneously on 19 December 2023 and has been edited to correct matters of grammar and language, include references, and add formatting.)
Overview
On 21 June 2022, the defendant Cristina Ceccon lost a civil trial after being found by her Honour Justice Smith to be an untruthful witness.[1] Ms Ceccon does not accept the outcome. In about March 2023, Ms Ceccon began to express her disagreement on a Facebook page, making a number of allegations that had been rejected in the civil trial. In particular, she posted serious allegations about the first plaintiff in these proceedings, Jason Peterson. Mr Peterson is the managing director of the company that was the plaintiff in the trial proceedings (Celtic). Celtic is the second plaintiff in these proceedings.
[1] Celtic Capital Pty Ltd as trustee for the Celtic Capital Trust v Ceccon [2022] WASC 205.
The plaintiffs in these proceedings, Mr Peterson and Celtic, sought orders requiring Ms Ceccon to remove the posts and to not make any further posts of the same type. I made orders restraining Ms Ceccon from making posts which contained allegations to the same or substantially the same effect as the allegations set out in a list and to remove posts which contained such allegations (derogatory posts).[2]
[2] Orders made on 11 September 2023 and 13 September 2023. The list is set out later in these reasons.
Ms Ceccon did not comply with the orders. Mr Peterson filed an application for contempt.
On 27 September 2023, Ms Ceccon appeared in court unrepresented. She apologised for breaching the orders and said she was disgusted with herself for doing so. She said she would remove the derogatory posts and would not make any further derogatory posts.[3]
[3] ts 44 ‑ 45.
Ms Ceccon did not remove the derogatory posts and continued to make further derogatory posts.
Ms Ceccon admits that she has committed contempt of court by failing to remove the derogatory posts and by making additional derogatory posts. Ms Ceccon says that she will never remove the derogatory posts. She also says that she would rather go to prison for the rest of her life than pay any of Mr Peterson's legal fees.[4] Ms Ceccon says this in full knowledge that, if she were imprisoned, her elderly mother may be significantly impacted. What follows are my reasons for concluding that I should give Ms Ceccon a chance to avoid prison by paying a fine and costs, despite her repeatedly stated preference for prison.
[4] ts 228.
Background
The civil trial before Justice Smith
In the civil trial before Justice Smith, Celtic sought to recover from Ms Ceccon the balance of funds it claimed were due under a loan agreement. Justice Smith summarised the action and result as follows (citations omitted):[5]
[5] Celtic Capital [1] ‑ [16].
1In the action, the plaintiff, Celtic Capital Pty Ltd as trustee for the Celtic Capital Trust (Celtic), seeks to recover from the defendant, Cristina Ceccon, the balance of funds it claims are due under a loan agreement entered into in writing on 28 September 2018 between Celtic as lender, and Cristina Ceccon, Giovanni Ceccon (known as John Ceccon and now deceased) and Nicoletta Ceccon as borrowers (September 2018 Loan Agreement).
2Celtic claims against Cristina Ceccon the outstanding amount due under the September 2018 Loan Agreement, including interest at the rates prescribed by the September 2018 Loan Agreement, or alternatively damages for breach of the September 2018 Loan Agreement, including interest.
3Cristina Ceccon claims that the signatures that appear on the loan facility letter for the September 2018 Loan Agreement claimed by Celtic to be hers are not hers. Thus, Cristina Ceccon denies having executed the September 2018 Loan Agreement. She seeks by counterclaim an order to discharge a mortgage on a property at 11 Canungra Road, City Beach (the City Beach property) registered as security for the loan advanced under the September 2018 Loan Agreement. The registered proprietors of the City Beach property are Cristina Ceccon and her mother, Nicoletta Ceccon.
4Cristina Ceccon claims in her counterclaim that the mortgage was obtained by fraud by reason that Celtic, its servants and agents, failed to take all reasonable steps to verify her identity, or Nicoletta Ceccon's identity, and she (Cristina Ceccon) is entitled to have the mortgage discharged by operation of s 68(1) of the Transfer of Land Act 1893 (WA).
5Although Celtic does not sue for a breach of the mortgage or seek possession of the City Beach property, shortly before the trial, Cristina Ceccon filed a chamber summons for leave to add Nicoletta Ceccon as the second defendant to the counterclaim and to amend her further amended defence and counterclaim dated 24 September 2021 (defence and counterclaim).
6At the commencement of the trial, counsel appeared on behalf of Nicoletta Ceccon and opposed the very late joinder of Nicoletta Ceccon as a defendant to the counterclaim, on grounds of prejudice.
7Following conferral between the parties and counsel for Nicoletta Ceccon, it was agreed that the counterclaim be adjourned sine die, together with the relief pleaded in the defence and counterclaim in pars A and D, and to the extent that par C of the defence and counterclaim is a claim for costs of the counterclaim.
8Consequently, the trial of the action proceeded on the basis it was not necessary for the court to consider Cristina Ceccon's application to join Nicoletta Ceccon as a defendant to the counterclaim, or to consider the application to amend the defence and counterclaim.
1.2The issues raised in the action
9The central issue in dispute in the action is whether Cristina Ceccon executed the September 2018 Loan Agreement.
10Not only does Cristina Ceccon claim she did not execute the agreement, she also claims she did not receive any monies from Celtic, whether under the terms of the September 2018 Loan Agreement or otherwise, and as such contends there was no consideration for the loan.
11Whether Cristina Ceccon executed the September 2018 Loan Agreement turns upon an assessment of the reliability and credibility of her evidence. There is no direct evidence of any witness who saw her sign the loan facility letter dated 24 August 2018, or any other material document in these proceedings.
12Celtic's case that Cristina Ceccon executed the September 2018 Loan Agreement principally relies upon:
(a)a forensic examination by a document and handwriting expert whose evidence it claims supports a finding by the court that the two signatures in issue on the original document comprising the September 2018 Loan Agreement, being a loan facility letter dated 24 August 2018, are as they purport to be. That is, they are the signatures of Cristina Ceccon in her own handwriting;
(b)admissions made by Cristina Ceccon in text messages as to her entry into the September 2018 Loan Agreement, and her liability to repay Celtic; and
(c)a history of other loan agreements and transactions entered into by Cristina Ceccon together with John Ceccon and Celtic.
1.3The result
13I have found that Cristina Ceccon executed the September 2018 Loan Agreement, there was consideration for the September 2018 Loan Agreement, and Cristina Ceccon breached the express terms of this agreement by failing to pay the outstanding loan amount together with interest, when that amount fell due on 28 September 2019.
14I have also found that Cristina Ceccon failed to remedy the breach, and by reason of the breach, Celtic has suffered loss and damage.
15Accordingly, Celtic is entitled to the relief that it claims in its Further Amended Statement of Claim.
16An order should be made that Cristina Ceccon pay Celtic the outstanding amount due under the September 2018 Loan Agreement, including interest at the rates prescribed by the September 2018 Loan Agreement.
In her reasons, Justice Smith considered the credibility and reliability of the key witnesses.
Her Honour found that Ms Ceccon 'did not give truthful evidence about almost every material issue and matters put to her that could have been construed as damaging to her case'.[6] Her Honour gave numerous reasons for this finding. I will refer to only one example (citations omitted):[7]
147On Friday, 26 June 2015 at 1.12 pm, Kelly Smith sent an email to Cristina Ceccon with a copy to John Ceccon and to Jason Peterson forwarding an earlier email in which she (Kelly Smith) indicated it was necessary for shareholders to sign an off market agreement. The agreement referred to in the email was a deed and appeared to relate to the sale of shares of a company.
148It appears that Cristina Ceccon did not respond to Kelly Smith's email. On 29 June 2015 at 6.58 am, Kelly Smith sent another email to Cristina Ceccon in which she made a request for the second time to sign the agreement and return it to her as soon as possible. At 11.40 am on the same day, Cristina Ceccon responded by sending an email to Kelly Smith stating, 'Good Morning Kelly Please find attached my signed, scanned copy. Regards Cristina Ceccon'. Attached to her email was a scanned copy of a signature page of the agreement, on which Cristina Ceccon's handwritten signature appeared above where her name was typewritten.
149When these emails and the signed scanned copy of the one page of the agreement containing her signature was put to her in cross-examination, Cristina Ceccon said that she did not recall signing the document. When she was asked whether she accepted that she had signed the agreement (attached to the email) she said, 'Well, I don't remember this particular document, so I don't know whether I signed it'. When it was then put to her that she was not willing to accept that it was her signature even though it was attached to an email that she sent, she said, 'Yes'.
150This evidence about the email that she sent attaching a signature page of an agreement which contained a handwritten signature above her typed name when she had earlier been emailed a blank copy of the agreement by Kelly Smith is particularly telling as to her lack of credibility.
[6] Celtic Capital Pty Ltd [51].
[7] Celtic Capital Pty Ltd [147] ‑ [150].
Her Honour found that Mr Peterson was 'an honest and reliable witness who endeavoured to give his evidence as truthfully as possible, and to the best of his recollection'. Her Honour said that, '[i]n all material respects, his oral evidence was consistent with contemporaneous records, including text messages'.[8]
[8] Celtic Capital Pty Ltd [60].
Her Honour rejected Ms Ceccon's allegation that it was not her signature on the September 2018 Loan Agreement.
Her Honour's decision was delivered on 21 June 2022.
The injunction
On Friday 8 September 2023, Mr Peterson brought an urgent application for an injunction[9] in relation to posts that had been made on a Facebook page with the display name 'Chris Smith'. Ms Ceccon admits that this Facebook page was under her control.[10]
[9] Plaintiffs' Chamber Summons for an Interim Injunction to Restrain the defendant from making defamatory publications filed 8 September 2023 (Injunction application).
[10] See exhibit E (originally exhibited as exhibit A, on 6 December 2023 at pages 183 ‑ 184). Exhibit E is the Plaintiffs' Amended Chamber Summons filed 21 November 2023, a document containing questions for the defendant emailed to the defendant on 30 November 2023 (the Questions Document), the amended Annexure A to the Plaintiff's Outline of Submissions filed 1 December 2023, and the email exchanges between the defendant and the court between 28 November 2023 and 4 December 2023 in which, among other things, the defendant advised that she admitted each of the questions on the Questions Document.
The posts were said to have been made on and from March 2023. The posts made serious allegations about Mr Peterson, including some allegations that had expressly been rejected by her Honour in the civil trial.
The injunction application sought orders requiring Ms Ceccon to remove the posts and to not make any further posts of that type.
On 10 September 2023, Ms Ceccon emailed the court to ask that the hearing be adjourned to 13 September 2023.
On 11 September 2023, I granted an interim injunction until further order (giving oral reasons) and listed the matter for further hearing on the date requested by Ms Ceccon, 13 September 2023. The orders required Ms Ceccon to stop making derogatory posts and to start taking steps to remove the derogatory posts already on the Facebook page.[11]
[11] The orders specified that she was not to make allegations to the same or substantially the same effect as the allegations set out in a list.
Ms Ceccon did not appear on 13 September 2023. On that date, I made further orders, relevantly as follows:[12]
[12] The list was the same as the list set out in the orders of 11 September 2023, with the addition of a single adjective 'improperly' to imputation 3(g).
2.Subject to further order, within 24 hours of receiving service of the materials referred to in order 1, the defendant by herself, her servants, her agents or otherwise, remove each post:
(a)on the Facebook account in the name of 'Chris Smith'; and
(b)on any other Facebook account or other social media account over which the defendant has control,
which contains statements to the effect as the imputations referred to in order 3 below.
3.Until further order, the defendant is restrained, whether by herself, her agents or otherwise, from continuing to publish, publishing, causing to be published, encouraging, requesting or enabling to be published (including by responding to questions or requests for comments from others) by any means whatsoever any comments or images about the plaintiffs to the same or substantially the same effect that:
(a)the first plaintiff lied on oath when giving evidence;
(b)the first plaintiff colluded with a trial judge;
(c)the first plaintiff is a 'loan shark';
(d)the first plaintiff placed improper pressure on a witness in relation to a witness' prospective evidence;
(e)the first plaintiff forged documents which were relied upon in a trial;
(f)the first plaintiff caused the death of the defendant's brother;
(g)the plaintiffs improperly lodged a caveat and/or mortgage without notice to the relevant proprietor;
(h)the first plaintiff improperly withheld information from the court;
(i)the first plaintiff was a drug dealer;
(j)the first plaintiff stole the defendant's brother's phone;
(k)the first plaintiff is a fraudster;
(l)the first plaintiff breached the Corporations Act 2001 (Cth); and
(m)the second plaintiff is not an entity that can be trusted to do business with because it is operated by the first plaintiff who is a liar and is of general bad character.
The contempt application
Ms Ceccon did not comply with the orders. Mr Peterson filed an application for contempt by chamber summons.[13]
[13] Plaintiffs' Chamber Summons for Contempt of Court filed 15 September 2023.
The contempt application was listed for directions on 27 September 2023. On that day, Ms Ceccon appeared in court unrepresented. She apologised for breaching the orders and said she was disgusted with herself for doing so. She said she would remove the derogatory posts and would not make any further posts of that type.[14]
[14] ts 44 ‑ 45.
Ms Ceccon did not remove the derogatory posts and continued to make further derogatory posts.
Several directions hearings followed.[15] In those hearings, I sought to explain to Ms Ceccon the seriousness of an allegation of contempt and urged her to obtain legal advice. She declined. In the penalty hearing, she said that she did not get legal advice in relation to the contempt because she intended to keep posting and that the Facebook page was more important to her 'than [her] own life and [her] mum's life'.[16]
[15] On 3 October 2023, 18 October 2023, 1 November 2023, 16 November 2023.
[16] ts 209.
During the directions hearings, I also raised with the plaintiffs my view that the contempt application failed to sufficiently particularise the conduct said to breach the orders.[17] I gave the plaintiffs leave to file an amended chamber summons. I made programming orders for the hearing of the contempt application.
[17] As to which see Potato Marketing Corporation of Western Australia v Galati [No 2] [2016] WASC 315 [14] ‑ [16].
On 21 November 2023, the plaintiffs filed an amended chamber summons for contempt,[18] particularising the conduct said to breach the orders.
[18] Plaintiffs' Amended Chamber Summons for Contempt of Court filed 21 November 2023 (Chamber Summons).
I note that the plaintiffs alleged a single act of contempt, which they particularised as a breach of two of the orders I made, based on many different posts that were not removed (in breach of order 2) and many new posts that were made, on various dates (in breach of order 3). In my view, it would have been open to the plaintiffs to allege multiple acts of contempt. Nevertheless, given the level of particulars now provided, Ms Ceccon could not be in any doubt as to the substance of the contempt that is alleged.
Ms Ceccon admits that she has committed contempt of court by failing to remove the derogatory posts and by adding more derogatory posts, in the terms alleged.
Contempt - liability
In Porter v Steinberg,[19] Tottle J summarised the relevant principles as follows (footnotes omitted):
[19] Porter v Steinberg [2019] WASC 291 [36] ‑ [39].
36The underlying rationale for the exercise of the contempt power is to uphold and protect the effective administration of justice.
37The requirements for proof of a punishable contempt of court are as follows:
(i)an order was made by the court;
(ii)the terms of the order were clear, unambiguous and capable of compliance;
(iii)the order was served on the contemnor or service was dispensed with;
(iv)the contemnor has knowledge of the terms of the order;
(v)the contemnor has breached the terms of the order; and
(vi)the act or omission which constituted the breach of the order was deliberate and voluntary.
38Deliberate disobedience of an order does not require a specific intention to break the law or even knowledge on the part of the contemnor that the relevant conduct constituted a breach. It is sufficient that the contemnor was aware of the facts that make their 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.
39Disobedience of a court order constitutes a civil contempt although where the disobedience involves deliberate defiance, that is, where the disobedience can be described as contumacious, it may constitute a criminal contempt. The distinction between criminal and civil contempt is, however, blurred and has been described as illusory.
Ms Ceccon admits each of the six elements and admits she is guilty of contempt.[20]
[20] See exhibit E.
The evidence adduced by the plaintiffs proves her guilt beyond reasonable doubt. I am satisfied it is appropriate to find that she has committed a contempt of court.
Contempt - penalty[21]
Penalty options
[21] What follows draws upon or reproduces parts of my judgment in Yap v Matic [No 6] [2023] WASC 24.
Order 55 rules 7 and 8 of the Rules of the Supreme Court 1971 (WA) provide:
7. 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.
(4)An order of committal may be in Form No. 66.
8. Execution of committal order may be suspended
The Court making an order of committal may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as the Court thinks fit.
It can be seen from rule 7 that there is no maximum penalty.[22]
Legal principles in punishing contempt
[22] And see Dental Board of Australia v Traianou [2011] WASC 293[39].
The cardinal feature of the power to punish for contempt is that it is an exercise of judicial power by the courts to protect the due administration of justice.[23] The importance of contempt cases transcends each individual case because they support and enhance the integrity of judicial proceedings in general.[24]
[23] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [41], endorsing Hayne J in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 [112].
[24] Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 [97].
The range of circumstances giving rise to contempt means there is no tariff or sentencing range.[25]
Contempt constituted by a breach of court order
[25] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425[251].
In R v T,[26] the Court of Appeal observed (citations omitted):
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.
[26] R v T [2022] WASCA 34; (2022) 58 WAR 77 [70].
The Court cited with approval the statement of the Full Court of the Family Court of Australia in In the Marriage of Tate [No 3] that:[27]
Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.
Relevant factors
[27] In the Marriage of Tate [No 3] [2003] FamCA 112; (2003) 30 Fam LR 427[57].
The Sentencing Act 1995 (WA) does not apply to punishment for contempt.[28] However, it is appropriate to have regard to the general principles set out in s 6 of that Act.[29] In particular, the punishment should be commensurate with the seriousness of the conduct. This reflects the common law principle that a sentence should be proportionate to the offence.[30] Further, imprisonment should not be imposed unless the seriousness of the conduct is such that imprisonment is the only appropriate disposition.
[28] Sentencing Act 1995 (WA) s 3(3)(a).
[29] Kennedy v Lovell [2002] WASCA 226 [6]; Dental Board of Australia [40].
[30] Truong v The State of Western Australia [2020] WASCA 177 [21] (Buss P), [82] (Mazza & Beech JJA).
It is also appropriate to have regard to the factors that are ordinarily relevant to the punishment of criminal offences.[31]
[31] Allbeury [218]; Kennedy [7].
There is no closed list of factors that are relevant to the determination of the appropriate disposition.
The Full Court of the Federal Court in Kazal v Thunder Studios Inc (California)[32] helpfully endorsed a non‑exhaustive list of factors that may be relevant in any given case:
[32] Kazal [101] ‑ [102]. The list of factors are largely direct quotes, with non‑substantive changes to the eighth factor. See also Allbeury [216] ‑ [218], [255] and R v T [2022] WASCA 34.
1.the seriousness of the contempt proved;
2.the contemnor's culpability;
3.the reason or motive for the contempt;
4.whether the contemnor received, or tried to receive, a benefit from the contempt;
5.whether there has been any expression of genuine contrition by the contemnor;
6.the character and antecedents of the contemnor;
7.the contemnor's personal circumstances;
8.personal and general deterrence; and
9.the need for denunciation of contemptuous conduct.
The Full Court noted, however:[33]
The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.
[33] Kazal [103].
Each of the factors in the Full Court's list will involve consideration of numerous matters.
I would add to that list whether the contempt was admitted. The fifth factor identified by the Full Court was contrition. However, a contempt may be admitted even when the contemnor is not at all contrite. An admission would nevertheless be mitigating if it facilitated the administration of justice.
Another potentially relevant factor is the actual consequences of the contempt.[34]
[34] Brennock & Dixon v Norman[2021] NSWSC 1182 [9] ‑ [10].
Ms Ceccon's plea in mitigation
Ms Ceccon says that she will never remove the derogatory posts and would rather go to prison for the rest of her life than pay any of Mr Peterson's legal costs.
Ms Ceccon says this in full knowledge that, if she were imprisoned, her elderly mother may be significantly impacted.
Ms Ceccon did not advance any matter mitigating her conduct, other than the impact on her mother if Ms Ceccon was imprisoned. Ms Ceccon said that, if she went to prison, her mother would have to go into a nursing home. However, Ms Ceccon said that, even if the effect of continuing to post meant that she would be imprisoned, causing her mother to go into a nursing home, she would still choose to continue posting.[35]
[35] ts 217 ‑ 218. See also the email from Ms Ceccon to the Court at 10.07 pm on 4 December 2023, and ts 189.
Analysis of relevant considerations on the facts
Seriousness of the contempt
The contempt was serious. In addition to refusing to remove the derogatory posts, Ms Ceccon continued to add further derogatory posts. She was well aware that her conduct breached the court orders. She considered that her personal reasons for wanting to post the derogatory material in public were more important than obeying orders made by the court. I am satisfied beyond reasonable doubt that her disobedience was deliberately defiant. She defiantly chose to repeatedly breach the orders.
The posts contained highly damaging allegations about the plaintiffs. They attacked Mr Peterson's honesty and character. As pointed out by Mr MacLaurin SC, damage to a reputation cannot be 'cured' by money.
Culpability
Ms Ceccon's culpability is high.
In the civil trial, Smith J emphatically rejected Ms Ceccon's evidence, including her claim that she had not signed the September 2018 Loan Agreement. In her judgment, Smith J gave extensive and cogent reasons for rejecting that evidence. The reasons included numerous text messages sent by Ms Ceccon herself, which were entirely inconsistent with her oral evidence in the civil trial.[36]
[36] See, for example, Celtic Capital Pty Ltd [84] ‑ [87], [146] ‑ [150], and section 5.4.
In addition, Smith J set out the considerable efforts made by Mr Peterson to assist Ms Ceccon and protect her financial position after the death of her brother.[37] Again, this material was largely contained in text messages.
[37] See Celtic Capital Pty Ltd section 5.4.
I accept that Ms Ceccon is distressed by the unexpected death of her brother. I accept that his death impacted on her financial position. I understand that it is not unusual for a person in her position to want to find someone to blame. However, the disputed issues in the civil trial did not turn upon the frailty of human memories of historical events. Ms Ceccon's own text message exchanges established that she signed certain documents. Her own text message exchanges show Mr Peterson's efforts to assist her.
If Ms Ceccon wished to challenge Smith J's findings, it was open to Ms Ceccon to appeal. Ms Ceccon initially asserted that she did not appeal because her lawyers told her that she could not afford to. However, when this was explored, she admitted that she did have the funds to appeal. She claimed that she did not appeal because she did not know about the mortgage on one of her properties, so 'why should [she] … appeal something when [she] didn't even know about it in the first place?'[38]
[38] ts 225 ‑ 226.
The fact that Ms Ceccon did not appeal may indicate that Ms Ceccon is aware that Smith J's findings were inevitable, in light of the contemporaneous documentary evidence.
Ms Ceccon is an educated and intelligent woman. Her own text message exchanges are inconsistent with assertions she has made in derogatory posts. Despite this, she continued to make derogatory posts.
There appear to be two possibilities. First, Ms Ceccon is well aware that Smith J's findings were inevitable, in light of the documentary evidence. Second, Ms Ceccon is suffering from a health condition that impacts on her rationality.
There is no medical evidence of the second possibility. By the contempt itself and from her conduct in these proceedings, it appears that Ms Ceccon remains distressed at the unexpected death of her brother and is pre‑occupied with her asserted perception of the interactions between Mr Peterson and her brother before her brother's death. I am not qualified, nor in possession of sufficient facts, to draw an inference that Ms Ceccon is suffering from a health condition that impacts on her capacity for rational thought. Nevertheless, I am concerned that it may be a possible explanation.
Motive
Ms Ceccon admitted she had not appealed against Smith J's decision. She admitted that it seemed that she instead made posts that were inconsistent with Smith J's decision.[39] She said that she began to make the derogatory posts because:[40]
I was upset that - that he was going to sell my house. That's what sparked it all off, that he was going to sell my dad's property on Lord Street, when - when it was - when the date of the auction was - was announced. But it could have been the first one or the second one where I started to - to go to town on Facebook. It was out of - yes. It was out of - it was out of anger that that was happening when my counterclaim for the fraudulent mortgage was still on foot.
[39] ts 218.
[40] ts 218.
The counterclaim to which she referred was described by Smith J in her judgment, in the extracts set out earlier. It relates to an allegation that the mortgage on the City Beach property was obtained by fraud. Celtic did not sue for a breach of the mortgage or seek possession of the City Beach property.
Ms Ceccon denied that her motive was to cause reputational harm to Mr Peterson. She said that her motive was to make a diary of what she alleged Mr Peterson had done to her brother. She was unable to explain why, if it was a diary, it needed to be public.[41] When I sought to understand her motive, Ms Ceccon gave a series of changing answers.[42]
[41] ts 219.
[42] ts 220 ‑ 223.
Having regard to the nature of the posts, I am satisfied beyond reasonable doubt that Ms Ceccon's motive was to cause reputational harm to Mr Peterson. Given the findings made by Smith J in the civil trial, there is no justification for this.
Benefit
Ms Ceccon did not financially benefit, or try to financially benefit, from the contempt. The only 'benefit' to her is that she was able to continue to make serious and unfounded public allegations against Mr Peterson.
The lack of financial benefit is not mitigatory. It merely means that the seriousness of the contempt is not aggravated by financial benefit.
Contrition
Ms Ceccon has not expressed any genuine contrition. On the first occasion she appeared in court, she purported to be extremely contrite. She said she was disgusted with herself and would remove the posts.
Ms Ceccon did not remove the posts, and she continued to make derogatory posts, and now says she will never take the posts down. Given this, I am satisfied beyond reasonable doubt that she is not remorseful. Accordingly, the mitigating factor of remorse is not applicable.
Admission or other facilitation of the administration of justice
Ms Ceccon admitted the contempt. While this was not due to any remorse, it is nevertheless mitigating. Ms Ceccon's admission facilitated the efficient administration of justice. The plaintiffs were not required to prove the offence. I accept that the plaintiffs' case against her was overwhelming. Nevertheless, had Ms Ceccon elected to make the plaintiffs prove the offence, as was her right, it would have been necessary to have an additional hearing. Due to her admission, the liability hearing was able to be converted into this penalty hearing.
This is mitigating.
Character and antecedents and personal circumstances
Ms Ceccon elected not to adduce any evidence as to her character and antecedents, or her personal circumstances. From statements she has made from the Bar table or on the Facebook page, I gather that Ms Ceccon is a primary school teacher and cares for her aged mother. I will assume that she has not previously committed a contempt (or indeed any offence). Nevertheless, I would not characterise her conduct as out of character. She has persisted in defying the orders since they were made (three months ago) on numerous occasions.[43]
[43] And see R v T [111].
Ms Ceccon said that, if she went to prison, her mother would have to go into a nursing home. Ms Ceccon said that, even if the effect of continuing to post meant that this would happen, she would still choose to continue posting.[44]
[44] ts 217 ‑ 218.
If a court decides to fine an offender for an offence to which the Sentencing Act applies, the Sentencing Act requires the court to take into account, as far as is practicable, the means of the offender and the extent to which the payment of the fine would burden the offender.[45] The Sentencing Act does not apply to contempts. Ms Ceccon did not adduce any such evidence in accordance with the programming orders. Nevertheless, I allowed her to make statements from the Bar table as to her financial position. Ms Ceccon said she had $16,000 in savings accounts and owns, with her mother, a house in City Beach.[46] Ms Ceccon said she owed the ATO $70,000 in capital gains tax in relation to the sale of a property she owned in Yokine.[47] She said her only other substantial liability was $200,000 she owed Celtic.[48]
[45] Section 53 of the Sentencing Act. And see Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [163] ‑ [165].
[46] ts 213.
[47] ts 215.
[48] ts 217.
The plaintiffs adduced evidence which confirms that Ms Ceccon is a registered proprietor as a joint tenant with her mother Nicoletta Ceccon of the City Beach property.[49] The record shows that there is a mortgage on the property (the subject of Ms Ceccon's counterclaim) and that the property is subject to a seizure and sale order as to Ms Ceccon's interest only. The mortgage is held by the plaintiffs. The plaintiffs said that, with costs, Ms Ceccon owes them about $230,000.[50]
[49] See attachment JWGP‑4 of Affidavit of Jason William Gould Peterson filed 14 December 2023, exhibit B, (the First Plaintiff's Affidavit).
[50] ts 229 ‑ 230.
Ms Ceccon did not adduce evidence as to the value of the City Beach property in accordance with the programming orders. At the end of the first day of the penalty hearing, the plaintiffs offered to seek to obtain such evidence before the hearing resumed the next day.
On the morning of the second day of the penalty hearing, Ms Ceccon emailed screenshots of 'valuations' she said she had found on the internet and an affidavit that had been filed by her mother's lawyers in the civil proceedings. The 'valuations' were from 'property.com.au' in the sum of $1,391,087 and 'propertyvalue.com.au' in the sum of $1,800,000 ‑ $2,000,000. The affidavit was from a solicitor who had searched the property on the website ' and said it showed the median sales price for properties in City Beach in 2018 was $1.8 million.
The plaintiffs' solicitors filed an affidavit attaching a 'valuation' by a real estate agent in 2019 of $1,700,000 and a screenshot of the estimate from the second of the 'valuations' referred to by Ms Ceccon, of $1,800,000 ‑ $2,000,000.
It is unnecessary to identify the precise valuation, nor is this information sufficient to do so. However, whatever the precise value, Ms Ceccon's interest in the City Beach property is sufficient to permit me to conclude that she would be able to pay a substantial fine.
Deterrence
The need for general deterrence will ordinarily be important in cases of contempt. It is in this case. It is important to send a message that litigants may not choose to defy a court order because they do not want to comply. They may not choose to defy a court order because they do not like the outcome of a civil trial.
There is nothing about this case that would make general deterrence of less weight than would ordinarily be the case.
The need for personal deterrence is also important in this case. Ms Ceccon continues to make derogatory posts.[51]
Denunciation
[51] See, for example, the First Plaintiff's Affidavit.
There will ordinarily be a need to denounce contempt, as an aid of deterrence. There is a need in this case. It is important to reinforce that litigants may not choose to defy a court order, no matter how aggrieved or angry they feel, or how much pain they want to cause to another person.
Consequences of the contempt
The contempt has had significant consequences. Mr Peterson has sworn an affidavit to set out the impact on him.[52] Mr Peterson says that the posts have caused him great embarrassment as he has had to constantly defend his reputation with his staff, friends, colleagues, numerous clients and former girlfriends. Mr Peterson deposes that he knows that his staff, and many of his friends, colleagues and clients, were aware of the posts because a number of them mentioned to him the content of some of them. The impact on Mr Peterson has gone beyond mere embarrassment. He deposes that he has struggled to sleep at night being too worried about what Ms Ceccon may post next about him. In view of the nature of the derogatory posts, this is not surprising.
[52] The First Plaintiff's Affidavit.
Is imprisonment appropriate?
In my view, the seriousness of the contempt and the need for both general and personal deterrence means that imprisonment is the only appropriate option. For the same reasons, I consider that a fine should also be imposed.
That said, I consider that the seriousness of the contempt would be adequately reflected in, and the need for both general and personal deterrence achieved by, a sentence of imprisonment the execution of which is suspended on the condition that Ms Ceccon pays the fine I will impose and the costs I will award. I have reached that view in part because of the possibility that Ms Ceccon's capacity for rational thought is being affected by a health issue.
I will deal first with the quantum of costs. This is because the quantum of costs should be taken into account in determining the appropriate length of imprisonment and amount of the fine.
Costs
Indemnity costs
The plaintiffs initially sought indemnity costs.
The relevant principles to be applied were summarised in Swansdale Pty Ltd v Whitcrest Pty Ltd.[53]
[53] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
In particular, I should not make an order for indemnity costs unless there is some special or unusual feature in the case. If the justice of the case requires an order for indemnity costs, I have a discretion as to whether to make such an order.[54]
[54] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [8] ‑ [9], endorsed in various Court of Appeal decisions, including Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] and Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200 [112].
An indemnity costs order may not be appropriate if the costs would be recoverable by a properly formulated special costs order.
There is no general principle or rule of law that indemnity costs should be ordered in contempt cases. However, in some jurisdictions at least, it is common for such orders to be made.[55] One reason for this is that the applicant is performing both a private and public service in prosecuting the contempt.[56]
[55] See the discussion in Kazal [192] ‑ [195].
[56] Infa‑Secure Pty Ltd v Crocker (No 2) [2016] FCA 202 [44].
I am not satisfied that I should make an order for indemnity costs. Ms Ceccon's conduct of the litigation has been largely unobjectionable. She failed to attend court on one occasion because she forgot. She attended promptly on each other occasion. Further, Ms Ceccon admitted the offence, facilitating the administration of justice.
Special costs order
I would, however, make a special costs order. I apply the principles I set out in BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 5].[57]
[57] BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 5] [2023] WASC 116 [39] ‑ [42].
The relevant scale item is item 10. The maximum amount allowable is $20,790. I am satisfied that this amount is inadequate in the sense that there is a fairly arguable case that a bill of costs may properly tax at a higher amount.
Further, I am satisfied that the matter is important. Ms Ceccon has deliberately defied court orders to continue her public and unfounded attack on Mr Peterson's character.
In addition, I am satisfied that the inadequacy of the costs allowable under the costs determination arises because of the importance of the matter.
I am satisfied that the limit imposed by item 10 should be removed.
I am also satisfied that the cap on the hourly rate for counsel should be lifted. Contempt proceedings are an unusual hybrid of criminal concepts (such as the burden of proof and the requirement of specificity) in civil proceedings. It is reasonable to brief counsel with expertise in the field.
There is no reason to lift the cap on the hourly rate for a senior practitioner. Accordingly, I would allow costs to cover the reasonable hours of Mr Molony at the rate of $506.
The plaintiffs seek that the costs be fixed and made payable forthwith.[58]
[58] Pursuant to O 66 r 10(1) of the Rules of the Supreme Court.
The plaintiffs have provided to the court a schedule of costs[59] in relation to this application. The schedule describes the work done, and identifies the date of such work and the cost incurred. In view of the confined nature of this particular contempt application, and the fact that I have direct knowledge of the product achieved by the work done, I consider that the schedule provides sufficient material to enable me to feel confident that I can fairly arrive at an appropriate sum.[60]
[59] Filed 18 December 2023.
[60] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [27] (Buss JA, as his Honour then was, and Newnes JA).
The amounts claimed for most of the components reflect reasonable hours. I would not order costs in relation to items 2 ‑ 4 of the schedule of costs. I would discount the time claimed for some of the items, in particular item 5, item 9 and item 12.
I will order that Ms Ceccon pay the plaintiffs' costs of these contempt proceedings, fixed in the amount of $28,000, payable forthwith.
Appropriate disposition
I take into account that Ms Ceccon will be required to pay the plaintiffs' costs in the sum of $28,000. This contributes to deterrence.
The Sentencing Act does not apply to contempt offences. Accordingly, it is open to me to impose a sentence of less than 6 months imprisonment.
In determining the quantum of a fine, it is appropriate to take into account the means and the extent to which a fine will burden the contemnor.[61] I am satisfied that Ms Ceccon has substantial equity in her half share of the City Beach house.
[61] Section 53(1) Sentencing Act and Kennedy [40].
I consider that the appropriate proportionate sentence is a term of imprisonment for 3 months, with the execution of that sentence suspended on the condition that Ms Ceccon pays a fine of $25,000 and the costs of $28,000 by 9 January 2024, or within such further time as the court may order. If Ms Ceccon pays the fine and the costs by that date, she will not be imprisoned.
I will also order that, if she is imprisoned for not paying the fine and the costs, she will be discharged from prison before the term expires if she pays whatever remains unpaid.
Orders
I would make the following orders:
1.Subject to order 2 and any further order of the Court, Cristina Ceccon is sentenced to three months imprisonment for the contempt (order of committal).
2.The order of committal shall not be executed if, by 4pm on 9 January 2024, Ms Ceccon pays:
a.a fine of $25,000 to the Supreme Court of Western Australia; and
b.costs of $28,000 to the plaintiffs' solicitors.
3.The plaintiffs' solicitors are to advise my associate by email within 18 hours of the costs being paid.
4.Ms Ceccon is to advise my associate by email within 12 hours of paying the costs to the plaintiffs' solicitors.
5.Ms Ceccon is to advise my associate by email within 12 hours of paying the fine to the Court.
6.A further hearing will be held in the Supreme Court at 10am on 10 January 2024.
7.Ms Ceccon is required to attend that hearing.
8.If Ms Ceccon is imprisoned due to the operation of orders 1 and 2, and subsequently pays the fine and the costs, she may make an application to this Court to be discharged from custody.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
22 DECEMBER 2023
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