Peterson v Ceccon [No 2]
[2024] WASC 387
•23 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PETERSON -v- CECCON [No 2] [2024] WASC 387
CORAM: LEMONIS J
HEARD: 12 SEPTEMBER 2024
DELIVERED : 18 OCTOBER 2024
PUBLISHED : 23 OCTOBER 2024
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 - Defendant deliberately breached orders made against her - Second occasion where the defendant has committed contempt by reason of breaching those orders - Consideration of applicable principles - Penalty imposed
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Legal Profession Uniform Law Application Act 2022 (WA)
Rules of the Supreme Court 1971 (WA)
Sentencing Act 1995 (WA)
Result:
Defendant sentenced to imprisonment for 15 weeks commencing 18 October 2024
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):
Caratti v Boban Ltd (Administrators Appointed) [No 2] [2015] WASC 139
Celtic Capital Pty Ltd as Trustee for the Celtic Capital Trust v Ceccon [2022] WASC 205
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111
Peterson v Ceccon [2023] WASC 488
R v T [2022] WASCA 34
The State of Western Australia v Rayapen [2023] WASCA 55
LEMONIS J:
(These reasons were delivered orally on 18 October 2024. They have been amended to correct matters of language, to include full references to authorities, orders and legislation, and to include citations. They also have been amended to include source references to the evidence.)
Background
These reasons concern an application for contempt brought by the plaintiffs (Mr Peterson and Celtic) against the defendant (Ms Ceccon). Mr Peterson is the director of Celtic.
The contempt is constituted by Ms Ceccon's conduct in breach of orders made by the Honourable Justice Archer on 13 September 2023 (the Primary Orders). Ms Ceccon admits the contempt.[1]
[1] Hearing 18 July 2024.
This is now the second occasion that Ms Ceccon will be penalised for contempt constituted by a breach of the Primary Orders. On 19 December 2023, Archer J sentenced Ms Ceccon to a term of imprisonment of 3 months, on the condition that the commitment to prison not be executed if by a certain date Ms Ceccon paid a fine of $25,000 and the plaintiffs' legal costs in the sum of $28,000.[2] Ms Ceccon paid those amounts by the required date and therefore was not required to serve the term of imprisonment.
[2] Peterson v Ceccon [2023] WASC 488 [104] (Ceccon No. 1).
The background to the making of the Primary Orders is as follows.
On 21 June 2022, the Honourable Justice Smith delivered reasons in respect of civil proceedings brought by Celtic against Ms Ceccon.[3]
[3] Celtic Capital Pty Ltd as Trustee for the Celtic Capital Trust v Ceccon [2022] WASC 205. (Celtic Capital v Ceccon)
The proceedings concerned a loan agreement said to be made between Celtic, Ms Ceccon, Ms Ceccon's brother John and Ms Ceccon's mother. Mr John Ceccon unexpectedly and tragically passed away from a heart attack prior to the commencement of the proceedings. His financial position was strained at the time of his death.
Smith J found that following Mr Ceccon's death, Mr Peterson spent a considerable amount of time and effort assisting Ms Ceccon to sort out her financial affairs.[4] However, ultimately, Ms Ceccon denied she had signed the loan agreement and denied she had received any monies from Celtic. Celtic then brought the proceedings that were heard by Smith J. Celtic sought an order that Ms Ceccon pay the monies due pursuant to the loan agreement.
[4] Celtic Capital v Ceccon [153].
Smith J found Ms Ceccon had signed the loan agreement, there was consideration for it and the loan agreement was therefore binding on Ms Ceccon. In reaching that finding, Smith J rejected Ms Ceccon's evidence on the material issues in the case. Her Honour also found Mr Peterson to be an honest and reliable witness. Smith J ordered Ms Ceccon to pay to Celtic the amount outstanding under the loan agreement including interest. The amount was significant, being $1,743,447.05.
Ms Ceccon refuses to accept Smith J's findings. Ms Ceccon has manifested that refusal by making posts on her Facebook page that contain serious allegations against Mr Peterson and Celtic. She started making the posts in about March 2023.
On 6 September 2023, Mr Peterson and Celtic commenced these proceedings for defamation in respect of Ms Ceccon's posts. They applied for the grant of an interlocutory injunction against Ms Ceccon. The interlocutory relief was directed to two areas. First, requiring Ms Ceccon to take down the alleged defamatory posts. Second, restraining her from making similar such posts in the future.
Archer J granted the interlocutory protection that Mr Peterson and Celtic were seeking and made the Primary Orders. Relevantly, her Honour ordered:
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 charge of contempt
By chambers summons dated 8 May 2024, Mr Peterson and Celtic brought the application for contempt against Ms Ceccon that is before me.
The charge of contempt was articulated as follows:
The defendant be committed for contempt of this Honourable Court, by reason of her conduct in breach of orders 2 and 3 of the Orders of the Honourable Justice Archer made 13 September 2023, particulars of which are attached to this chamber summons as annexure "A" and following annexures, and with such orders as to committal as to this Honourable Court thinks fit.
As can be seen, one charge was brought, which was particularised by way of several distinct breaches of the Primary Orders. This was also the approach which Mr Peterson and Celtic took in the contempt proceedings before Archer J. The charge does not allege a criminal contempt.
Mr Peterson and Celtic subsequently refined their particulars of Ms Ceccon's alleged breaches of the Primary Orders. This refinement led to a book of documents being filed on 9 July 2024 that contained a covering schedule identifying the relevant post and the order said to have been breached (book of documents). The alleged breaches were initially said to be in respect of 22 separate posts.
The breaches that were finally put to Ms Ceccon were in respect of the following matters:
Document Number Order breached 1 2, 3(b) & 3(f) 2 2 & 3(m) 3 2, 3(g) and 3(f) 6 2, 3(g) & 3(f) 7 2, 3(c), 3(e) & 3(k) 8 2, 3(g) & 3(k) 9 2 & 3(b) 11 3(b) & 3(f) 12 3(b) 13 3(b) & 3(j) 14 3 (c), 3(f) & 3(j) 15 3(b), 3(k), 3(l) & 3(m) 17 3(j) 18 3(b), 3(k) & 3(l) 20 3(f) and 3(j)
The items set out at [16] above reflect the numbering in the book of documents. The reason that the numbers are not in precise numerical order is that Mr Peterson and Celtic ultimately did not press all of the alleged breaches set out in the book of documents.
Irrespective of whether the contempt arises at common law or under s 138 of the Civil Judgments Enforcement Act 2004 (WA),[5] in order for Mr Peterson and Celtic to prove contempt by way of disobedience of a court order, it was necessary for them to prove beyond reasonable doubt the following matters:
1.the relevant order was made by the court against Ms Ceccon;
2.the terms of the order were clear, unambiguous and capable of being complied with;
3.Ms Ceccon had knowledge of the terms of the order, or at least the substance of the order;
4.Ms Ceccon breached the order; and
5.Ms Ceccon's conduct in breaching the order was either deliberate or voluntary.
[5] It is not necessary for me to address whether s 138 of the Civil Judgments Enforcement Act operates as a code: see Caratti v Boban Ltd (Administrators Appointed) [No 2] [2015] WASC 139 [88].
On 18 July 2024, I put these matters to Ms Ceccon in respect of each of the breaches set out at [16] above, which matters she admitted. I refrained from finding Ms Ceccon guilty of contempt that day, saying that for the purposes of the penalty hearing:[6]
… it might come to light that a couple of the admissions might be a bit more nuanced than people appreciate.
[6] Hearing 18 July 2024, ts 344.
A penalty hearing was then held on 12 September 2024.
Following the penalty hearing, I had some concerns whether some of the breaches which the plaintiffs alleged against Ms Ceccon were capable of arising from her posts.
While Ms Ceccon had admitted the alleged breaches, she represents herself. And, it hardly needs to be said that the law of defamation is notoriously difficult, even for those who are experienced in it.
Further, in order to sentence Ms Ceccon, I needed to be satisfied that the admitted breaches were capable of arising from the posts contained in the book of documents.
I identified my concerns in an e-mail sent to the parties by my associate and brought the matter back on for a further short hearing on 4 October 2024. The plaintiffs' lawyers filed written submissions in advance of the hearing which addressed the concerns. The written submissions also said the matters of concern did not have any material bearing upon the seriousness of the contempt such as to affect the appropriate penalty.[7] It is however still necessary that I determine the basis on which Ms Ceccon is in contempt, and is to be sentenced for contempt.
[7] Plaintiffs' written submissions filed 3 October 2024, par 47.
Matters of concern
In respect of items 1, 2, 3, 6, 7, 8 and 9, these posts were made after Archer J made the Primary Orders and prior to 19 December 2023 when Archer J sentenced Ms Ceccon. Further, the plaintiffs relied on the post at item 3 in the contempt hearing before Archer J. I address that at [30] below.
The Primary Orders had two aspects to them. The first order (Order 2) required Ms Ceccon to remove the posts identified in the order within 24 hours of being served with the Primary Orders, with service to be effected by email. The second order (Order 3) restrained Ms Ceccon from making similar such posts. The plaintiffs contend that the removal order applies to posts made subsequent to the making of the Primary Orders. I do not accept that submission. In my view, Order 2 is clear in its terms and only applies to the posts in existence at the time the order was made. Further, order 2 required Ms Ceccon to remove certain posts within 24 hours of being served, which reinforces that it applied to existing, not future, posts.
The plaintiffs also rely on order 3 in respect of the posts the subject of items 1, 2, 3, 6, 7, 8 and 9. The plaintiffs contend that by reason of the posts remaining visible on Ms Ceccon's Facebook page, this constitutes an ongoing publication of the posts contrary to order 3. I accept this proposition.
Further, in respect of item 1, the book of documents asserts that one of the meanings conveyed by the post is the meaning at paragraph 3(f) of the Primary Orders. On its face, I do not regard the post as capable of giving rise to that meaning. In particular, I do not think the reference in the post to 'what Jason Peterson and CPS Capital did to my brother' is capable on the terms of that post to give rise to the meaning at 3(f). The plaintiffs' written submissions sought to rely on other posts to give rise to the meaning. However, those posts appear to have been made after the post the subject of item 1. It may be that all of the posts in combination constitute a contempt once the later posts are made, however that is not how item 3 has been particularised. I am therefore not satisfied that the post at item 1 is capable of conveying the meaning at paragraph 3(f) of the Primary Orders.
In respect of item 2, the book of documents asserts the relevant post conveys the meaning at 3(m) of the Primary Orders, which is the only meaning said to breach the Primary Orders. The post is directed to allegations that Mr Peterson has breached regulatory obligations in his lending practices. The post is capable of giving rise to a meaning that Mr Peterson is of general bad character. However, I do not consider it is capable of giving rise to the meaning that he is also a liar. Accordingly, I am not satisfied that the meaning at 3(m) is capable of arising from the post at item 2. As the meaning at 3(m) was the only meaning asserted, I am not satisfied that the alleged breach at item 2 forms part of the contempt.
In respect of items 3, 6 and 8, the book of documents asserts that one of the meanings conveyed by the posts is the meaning at paragraph 3(g) of the Primary Orders. My concern was whether the posts were capable of conveying that the plaintiffs improperly lodged a mortgage without notice to the relevant proprietor. The plaintiffs' proposition is that the posts assert the mortgage was obtained fraudulently and this carries with it that the mortgage was lodged without notice to the proprietor. I do think this is a rather strained interpretation of the post. However, I accept it is capable of arising from the post. I also note that in respect of item 3, this was one of the posts the subject of the application for contempt before Archer J. The plaintiffs rely on the post at item 3 on the basis that Ms Ceccon has not purged the prior contempt by taking down that post. I will take account of the post at item 3 on that basis.
In respect of item 7, the book of documents asserts that one of the meanings conveyed by the posts is the meaning at paragraph 3(e) of the Primary Orders. The post refers to forgeries of Ms Ceccon's signature on off-market transfers. In the trial before Smith J, an issue that was raised in evidence was whether Ms Ceccon had signed an agreement for an off‑market sale of shares.[8] Against that background, I consider the post at item 7 is capable of conveying the meaning at order 3(e).
[8] See Ceccon No 1 [9].
In respect of item 9, the book of documents asserts that the relevant post conveys the meaning at 3(b) of the Primary Orders, which is the only meaning said to breach the Primary Orders. I do not regard this post as capable of giving rise to the meaning that Mr Peterson colluded with a trial judge. The relevant post is directed to a (baseless) allegation that the courts assisted Mr Peterson by blocking Ms Ceccon's Facebook page. I do not think that allegation can be extended to encapsulate what happened at the trial. In the previous posts on the Facebook page, the trial is clearly identified as the trial before Smith J in which her Honour made the critical findings against Ms Ceccon that I have identified before. As the meaning at 3(b) was the only meaning asserted, I am not satisfied that the alleged breach at item 9 forms part of the contempt.
In respect of item 14, the book of documents asserts that one of the meanings conveyed by the posts is the meaning at paragraph 3(f) of the Primary Orders. I do not consider that meaning is capable of arising from the post. The reference in that message to what Mr Peterson did to Mr Ceccon was plainly a reference to financial matters.
Finding of contempt
Turning back then to the charge, taking account of Ms Ceccon's admissions, I am satisfied beyond reasonable doubt that Ms Ceccon is guilty of the charge of contempt on the basis that I have set out at [13] ‑ [33]. I therefore find Ms Ceccon guilty of contempt on that basis.
Penalty for contempt
The applicable penalty for contempt is provided for by O 55 r 7 and r 8 of the Rules of the Supreme Court 1971 (WA), which 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.
The provisions of the Sentencing Act 1995 (WA) do not apply to or in respect of a person being punished by a court for contempt of court.[9] It follows that a sentence of imprisonment of 6 months or less is an available sentencing option.
[9] Sentencing Act, s 3(3)(a).
Sentencing considerations
In Ceccon No. 1, Archer J made the following observations regarding sentencing for contempt, which I respectfully adopt:[10]
The Sentencing Act 1995 (WA) does not apply to punishment for contempt. However, it is appropriate to have regard to the general principles set out in s 6 of that Act. 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. Further, imprisonment should not be imposed unless the seriousness of the conduct is such that imprisonment is the only appropriate disposition.
It is also appropriate to have regard to the factors that are ordinarily relevant to the punishment of criminal offences.
(footnotes omitted)
[10] Ceccon [36] - [37]; see also R v T [2022] WASCA 34 [114] - [117].
In R v T, the Court of Appeal in a joint judgment made the following observations in respect of sentencing for contempt constituted by a breach of orders (as is the case here):[11]
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.
[11] R v T [2022] WASCA 34 [70].
The Full Court of the Federal Court observed in Kazal v Thunder Studios Inc (California):[12]
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.
[12] Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 [103].
Circumstances of the contempt and its impact
Having regard to my findings at [13] ‑ [34], the conduct constituting the contempt comprises 13 breaches of the Primary Orders. Taken as a whole, the posts carried imputations to the effect of all the meanings set out in order 3 of the Primary Orders, except for 3(a), (d), (h) and (i). Thus, the posts carried meanings to the effect of 9 of the 13 matters set out in order 3. Those meanings convey serious allegations against Mr Peterson that affect his personal and business reputations. Further, the meaning at 3(b) attacks the integrity of the court system.
Further, the 8 posts the subject of items 11, 12, 13, 14, 15, 17, 18 and 20 were made from about February 2024 onwards.[13] Thus, those posts were made after Archer J had sentenced Ms Ceccon for contempt.
[13] Mr Peterson's affidavit sworn 6 May 2024, attachments JWGP-5, JWGP-10 and JWGP-11.
On the evidence before me, Ms Ceccon's Facebook account is no longer accessible in Australia.[14]
[14] Mr Peterson's affidavit sworn 6 May 2024, par 8.
Mr Peterson's colleague, Ms Morgan, accessed Ms Ceccon's Facebook account via Ms Morgan's Netherlands Facebook account. Ms Morgan provided Mr Peterson with copies of Ms Ceccon's posts that are the subject of the contempt application before me.[15]
[15] Mr Peterson's affidavit sworn 6 May 2024, pars 14 to 25.
Mr Peterson has national and international business interests. He says that the ongoing posts have had, and continue to have, a determinantal impact on him personally and on his business relationships.[16]
[16] Mr Peterson's affidavit sworn 6 May 2024, par 26.
Mr Peterson speaks of his frustration that the Primary Orders did not result in Ms Ceccon ceasing her attacks on him.[17]
[17] Mr Peterson's affidavit sworn 30 July 2024, par 7.
Mr Peterson also says that:[18]
The posts published by the defendant have caused me great stress (both physically and emotionally) and embarrassment as I have had to constantly defend my reputation with my staff, friends, colleagues, numerous clients and former girlfriends.
…
I have struggled to sleep at night being too worried about what the defendant may post next about me on her Facebook account and how this will negatively affect me.
[18] Mr Peterson's affidavit sworn 30 July 2024, pars 16 and 19.
I accept these statements. As I have said, the offending posts are in respect of a large number of the meanings the subject of the Primary Orders. Further, the meanings which the offending posts convey are directed to matters personal to Mr Peterson, and also to his business affairs and reputation. The impact which Mr Peterson describes reflects an entirely expected human reaction to the posts. It also reflects common sense that the posts would impact Mr Peterson in the manner that he has described.
I turn now to Ms Ceccon's personal circumstances.
Ms Ceccon's personal circumstances
Ms Ceccon has not put on any affidavit or other material in respect of her sentencing. I therefore have limited material before me regarding her personal circumstances.
The following matters regarding Ms Ceccon's personal circumstances are taken from what she told me at the sentencing hearing.
Ms Ceccon is 54 years of age. She attended school to year 12 and then completed a three year diploma in primary school teaching. She currently works as a part time school teacher, teaching years 7, 8 and 9.
Ms Ceccon lives with her mother, who is 90 years of age. She cares for her mother.
Ms Ceccon has not put on any material which demonstrates that family, friends and/or support services are not available to provide care to Ms Ceccon's mother if Ms Ceccon is sentenced to prison.
I was concerned that Ms Ceccon might have developed a mental health condition following her brother's death which was contributing to her behaviour. At the hearing on 18 July 2024, I urged Ms Ceccon to speak to a medical professional. At the hearing on 12 September 2024, Ms Ceccon said she made some initial inquiries with a work colleague as to counselling that was available as part of Ms Ceccon's employment. However, Ms Ceccon did not undertake the counselling because she was fearful the counsellor would force her to take medication, or at least suggest that she do so.[19]
[19] Hearing 12 September 2024, ts 374.
Archer J inferred that Ms Ceccon had an ability to pay a fine.[20] And, as matters transpired, Ms Ceccon paid the fine which her Honour imposed of $25,000 and also paid costs of $28,000. However, Ms Ceccon now says that she has no available funds and has an impending Capital Gains Tax liability that she will not be able to afford.
[20] Ceccon No 1 [75].
On the information before me, I am not able to discern to what extent Ms Ceccon might have funds available to her. In assessing the appropriate penalty, I will presume that Ms Ceccon would be able to source sufficient funds to pay a moderate fine and moderate legal costs, however this would likely take time.
Ms Ceccon says that she is obsessed with seeking justice for her late brother.[21] She does not accept Smith J's findings. In Ms Ceccon's mind, those findings can only have come about by reason of collusion between the courts and Mr Peterson. There is however absolutely no foundation for such a serious allegation.
[21] Hearing 12 September 2024, ts 373.
Ms Ceccon also says she is sorry that Mr Peterson has been affected by her posts and she gets no enjoyment from seeing someone in pain.
Ms Ceccon says she will cease making further posts. This appears to be because Ms Ceccon says that she has now posted everything she wants to say about Mr Peterson and Celtic.[22] Ms Ceccon has not said that she will take her Facebook page offline so that it is not visible to others.
[22] Hearing 12 September 2024, ts 379.
Further, Ms Ceccon continued to make posts in breach of the Primary Orders after the current application for contempt was brought.[23] This does not aggravate the seriousness of the contempt, but is still relevant to considerations of personal deterrence.
[23] See for example, Mr Molony's affidavit sworn 9 September 2024, pages 152, 181-188, 199 and 214. Ms Ceccon admitted at the hearing on 12 September 2024 that she made these posts.
Seriousness of the contempt
In my view, Ms Ceccon's contempt is serious.
Ms Ceccon continues to repeatedly disobey the Primary Orders. Ms Ceccon's posts seriously impugn Mr Peterson's character, both personally and in respect of his business. The posts continue to have a significant impact on him and by extension, Celtic.
Further, Ms Ceccon has continued to make such posts after Archer J sentenced her for contempt. Her Honour afforded Ms Ceccon an opportunity to avoid prison. While Ms Ceccon took that opportunity and paid the fine and costs, she has continued to deliberately disobey the Primary Orders.
I accept that the death of Ms Ceccon's brother has distressed Ms Ceccon greatly and continues to do so. Since the decision of Smith J was handed down, Ms Ceccon has become obsessed with her perceived belief that Mr Peterson unfairly brought about Mr Ceccon's strained financial position at death. She also is obsessed with her perceived belief that Mr Peterson's treatment of Mr Ceccon brought about the health conditions that resulted in Mr Ceccon's death.
On the evidence before me, and having considered the findings of Smith J, there is simply no reasonable foundation for these beliefs.
I accept that in making the posts, Ms Ceccon is motivated by a misguided attempt to vindicate her brother. However, I am satisfied that in doing so, Ms Ceccon is willing to cause personal and reputational harm to Mr Peterson. Further, it is apparent that Ms Ceccon cannot accept that her financial predicament following Mr Ceccon's death was at least partly brought about by the commercial activities that he got her involved in. Accordingly, because Ms Ceccon cannot accept that was the case, she seeks to unfairly lay the blame for her financial predicament at Mr Peterson's feet.
Matters in mitigation
I consider the following matters in mitigation arise.
Ms Ceccon facilitated the efficient conduct of the hearings before me. She co-operated by making full admissions, which reduced the overall hearing time and also the costs which Mr Peterson and Celtic have occurred.
However, the mitigatory weight of her doing so is reduced given this is the second occasion on which she has been found to be in contempt by reason of breaching the Primary Orders.
In my view, Ms Ceccon's statement of being sorry for the effect of the posts on Mr Peterson falls short of demonstrating remorse. As the Court of Appeal in a joint judgment observed in The State of Western Australia v Rayapen, remorse is:[24]
The genuine regret for the wrong itself, penitence and contrition for that wrong and a desire to atone.
[24] The State of Western Australia v Rayapen [2023] WASCA 55 [141].
Ms Ceccon has not demonstrated genuine regret for breaching the Primary Orders.
Ms Ceccon's conduct cannot be regarded as being out of character given this is now the second occasion on which she has been found to be in contempt. On the other hand, Ms Ceccon is a contributing member of the community. She works part time as a teacher, and she cares for her elderly mother. These matters do have some mitigatory weight.
The position regarding Ms Ceccon's elderly mother is not by itself mitigatory. It is however still a factor that I take account of in the overall sentencing disposition. In particular, I am satisfied that sending Ms Ceccon to prison will likely cause distress to her mother. This informs part of Ms Ceccon's overall circumstances for the purposes of sentencing her.
Costs
In respect of costs, Mr Peterson and Celtic seek indemnity costs of the application. The amount claimed is $52,140.50 plus $407 for the filing fee for the contempt application. The amount claimed is significantly higher than the costs of $28,000 which Archer J awarded previously, by way of a special costs order.
I do not consider it is appropriate to order indemnity costs. The application before me raised substantially similar matters on both liability and sentencing to those that were before Archer J. Thus, the plaintiffs' lawyers would have been readily familiar with the applicable principles and issues. Further, as I have explained, there were a number of alleged breaches that were either withdrawn, or which I have found were not capable of arising. Accordingly, I do not consider that Mr Peterson and Celtic should be awarded indemnity costs.
The legal services provided were provided over the period prior to, and after, 30 June 2024. The Legal Profession (Supreme Court) (Contentious Business) Determination 2022 Act (WA) applied in respect of the period to 30 June 2024. The 2024 Determination applied thereafter. The relevant scale item for the application is item 10. Given senior counsel has appeared on the application, the maximum amount allowable under the 2022 Determination is $20,790 and under the 2024 Determination is $23,430. I am satisfied that both amounts are inadequate by reason of the importance of the application. In that respect, the application is of importance to the integrity of the court process and in affording the plaintiffs the protection that the Primary Orders sought to achieve. Thus, the discretion in s 141(3)(a) of the Legal Profession Uniform Law Application Act 2022 (WA) is enlivened to order the payment of costs above those fixed by the determinations and it is appropriate to exercise that discretion.
I turn now to the sentencing disposition.
Sentencing disposition
General deterrence is an important sentencing consideration here, that is to strongly discourage others from disobeying court orders. Personal deterrence is also important, that is to strongly discourage Ms Ceccon from disobeying the Primary Orders again. Personal deterrence also achieves the coercive effect of ensuring compliance with the Primary Orders.
Ms Ceccon will be ordered to pay the costs of the application in a sum to be fixed. This contributes to personal deterrence to some extent, although not in a significant manner given Archer J ordered Ms Ceccon to pay costs and a fine, and that did not dissuade Ms Ceccon from continuing to breach the Primary Orders.
Ms Ceccon's contempt is serious. Her conduct continues to cause harm to Mr Peterson and to Celtic. Archer J afforded Ms Ceccon the opportunity to avoid prison on the last occasion. Since then, Ms Ceccon has continued to make further posts in breach of the Primary Orders.
While there are some matters in mitigation, they are relatively limited.
In the circumstances of this case, including Ms Ceccon's personal circumstances, I am positively satisfied that a fine or suspended sentence of imprisonment are inappropriate sentencing options. I consider that imprisonment is the only appropriate disposition.
Having regard to the applicable sentencing principles, the circumstances of this case and Ms Ceccon's personal circumstances, I consider the appropriate sentence proportionate to the contempt is that Ms Ceccon be sentenced to a term of imprisonment of 15 weeks commencing today.
I also order that Ms Ceccon pay Mr Peterson and Celtic's costs of the application to be fixed. I will hear from the parties as to the quantum of the costs order. Ms Ceccon will be required to pay those costs by 28 days after she is released from prison, so that is by 28 February 2025.
[After hearing further submissions on the question of costs]
Costs order
In my view, having regard to the nature of this application and its importance, the work done, and that similar matters of principle have previously been ventilated before Archer J, it is appropriate to allow an uplift from the maximum amount allowed under the 2024 determination of $35,000 plus disbursements and to fix the costs in that sum. This equates to an uplift in that maximum amount by just under 50%. I consider that is an appropriate uplift in all the circumstances. I therefore order that pursuant to s 141(3)(a) of the Legal Profession Uniform Law Application Act 2022 (WA), the defendant pay the plaintiffs' costs of the application fixed in the sum of $35,000 plus the filing fee of $407.
The total costs of $35,407 are to be paid by the defendant to the plaintiffs by 28 February 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
23 OCTOBER 2024
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