The Public Trustee as administrator of the Estate of Jean Mary O'Sullivan v O'Sullivan - [2025] WASC 108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THE PUBLIC TRUSTEE as administrator of the ESTATE OF JEAN MARY O'SULLIVAN -v- O'SULLIVAN [2025] WASC 108
CORAM:   GETHING J
HEARD:   4 APRIL 2025
DELIVERED          :   4 APRIL 2025
FILE NO/S:   TRU 7 of 2022
BETWEEN:   THE PUBLIC TRUSTEE as administrator of the ESTATE OF JEAN MARY O'SULLIVAN
Plaintiff
AND
MICHAEL SHAUN O'SULLIVAN
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Contempt - Contempt of court by resuming possession of property from which the contemnor had been evicted pursuant to a property seizure and deliver order

Legislation:

Civil Judgments Enforcement Act 2004 (WA) s 96, s 98
Rules of the Supreme Court 1971 (WA) O 55

Result:

Contempt findings made

Category: B

Representation:

Counsel:

Plaintiff	:	Ms C Hamilton
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	McWilliams Davis Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance

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

Briggs v Lunt [No 4] [2011] WASCA 145
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Peterson v Ceccon [2023] WASC 488
Peterson v Ceccon [No 2] [2024] WASC 387
Porter v Steinberg [2019] WASC 291
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Sethi v Bhavsar [2020] WASCA 52
Smart v Prisoner Review Board (WA) [2012] WASC 48
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Woods v Skyride Enterprises Pty Ltd [2012] WASC 4
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

GETHING J:

Background

The application concerns the estate of Jean Mary O'Sullivan (Deceased) who died on 8 April 2015.[1] At the time of her death, the Deceased was the registered proprietor of Lot 133 on Plan 9720, being the whole of the land comprised in Certificate of Title Volume 1348 Folio 903, known as 5 Ollis Street, Safety Bay, Western Australia (Property).
[1] Affidavit of Shaun William Conlin (Director of Trustee Services at the Public Trustee) sworn 16 January 2025 and filed 24 January 2025 (Conlin Affidavit), par 6, Annexure SC2.
On 21 January 2016 Michael Shaun O'Sullivan was granted probate of the Deceased's estate (Estate). The Deceased was his mother. On 18 February 2016, Mr O'Sullivan became the registered proprietor of the Property by registration of a transmission in his capacity as executor of the Estate of the Deceased.
The Estate was the subject of proceedings pursuant to the Family Provision Act 1972 (WA). The plaintiff in these proceedings was the daughter of the Deceased and the sister of Mr O'Sullivan. Following a trial, on 21 April 2021, the then Master made the following orders (FPA Orders):[2]
[2] O'Sullivan v O'Sullivan [2021] WASC 168 (O'Sullivan); Conlin Affidavit, Annexure SC2, pages 7 - 8.
1.Pursuant to section 6(1) of the Family Provision Act 1972 (WA) further provision be made by altering the last Will and Testament 19 November 2011 of the late Jean Mary O'Sullivan as follows:
(a) the following clause be inserted to replace clause 2 of the Will: "I appoint the Public Trustee as my Executor";
(b) clauses 3 - 10 of the Will be removed; and
(c) the following clause be inserted as clause 3 of the Will: "I direct my executor to pay all my debts, and then I give the residue of my estate to my daughter Jeannie Marie O'Sullivan."
2.The first defendant be directed to deliver the grant of Probate to the Supreme Court Probate Registry within 14 days.
3.The plaintiff have leave to lodge a caveat over 5 Ollis Street, Safety Bay, Western Australia.
4.The plaintiff's costs of these proceedings and CIV/1646/2020 (Leave Proceedings) be paid from the Estate
It is instructive for present purposes to note the following observations of the Master in relation to Mr O'Sullivan:[3]
At no stage has the defendant in his capacity as executor of the deceased's estate engaged with the plaintiff or the court. He did not appear or take any part in the proceedings brought by the plaintiff for an extension of time under the Family Provision Act He has not appeared or taken any part in these proceedings. The defendant's failure to discharge his duties as executor is readily apparent. His behaviour is nothing short of reprehensible. The personal legal representative of a deceased who is charged with administering an estate according to law has an obligation to respond to proceedings brought in relation to the estate. It is a fundamental aspect of an executor's duties. Without more, such failure would in most circumstances justify the removal of the named executor as administrator of the estate. The position is worse here. The defendant has threatened the plaintiff with violence if she brought any claim against the estate. He has also threatened to destroy property forming part of the estate … In all the circumstances, the evidence adequately demonstrates removal of the defendant as executor of the deceased's estate was warranted.
[3] O'Sullivan [8] (reference omitted).
On 7 October 2021, the Public Trustee was granted probate de bonis non, being a grant of administration of the unadministered portion of the Estate.[4]
[4] Conlin Affidavit, Annexure SC3, page 9.
By originating summons filed 19 October 2022 (Originating Summons) against Mr O'Sullivan (first defendant) and the Registrar of Titles (second defendant), the Public Trustee sought orders that the Property vest in the Public Trustee, the Registrar of Titles issue a substitute certificate of title to this effect and within 28 days of that occurring Mr O'Sullivan give vacant possession of the Property to the Public Trustee.
The Originating Summons was personally served on Mr O'Sullivan.[5] Mr O'Sullivan did not enter an appearance.
[5] Affidavit of Thomas Leonard O'Donnell sworn 8 January 2025 and filed 24 January 2025 (O'Donnell First Affidavit), pars 4 and 5.
On 15 December 2022, the Master made the following orders (Possession Order):[6]
[6] Conlin Affidavit, par 8, Annexure SC4, pages 10 - 11.
1.Pursuant to s. 78 of the Trustees Act 1962 (WA), the land at Lot 133 on Plan 9720, being the whole of the land comprised in Certificate of Title Volume 1348 Folio 903, more commonly known as 5 Ollis Street, Safety Bay, Western Australia (Land), vests in the plaintiff.
2.Pursuant to s. 200 of the Transfer of Land Act 1893 (WA), the second defendant shall:
(a) cancel the Certificate of Title with respect to the first defendant's previous interest in the Land; and
(b) issue a substitute Certificate of Title to the plaintiff with respect to the plaintiff's interest in the Land as Administrator of the Estate of Jean Mary O'Sullivan.
3.Within 28 days of registration of the plaintiff's interest in the Land as Administrator of the Estate of Jean Mary O'Sullivan, the first defendant do deliver the plaintiff vacant possession of the Land.
4.The first defendant pay the plaintiff's costs of the action on an indemnity basis fixed in the sum of $12,070.92.
5.The plaintiff shall have liberty to apply.
On 21 December 2022, the Public Trustee's lawyers caused a letter to be sent by ordinary post to Mr O'Sullivan addressed to the Property. The letter enclosed a copy of the Possession Order and advised that the Public Trustee had issued instructions to apply to Landgate to register its interest in the Property.[7]
[7] Affidavit of Jason Noel O'Meara (a legal practitioner employed by the Public Trustee's lawyers) sworn 17 January 2025 and filed 24 January 2025 (O'Meara Affidavit), Annexure JO1, pages 4 - 7.
On 23 February 2023 the Public Trustee became the registered proprietor of the Property.[8]
[8] Conlin Affidavit, Annexure SC5, page 12.
On 7 March 2023, the Public Trustee's lawyers caused a letter to be sent by ordinary post addressed to Mr O'Sullivan at the Property.[9] The letter included a copy of the letter dated 21 December 2022 as well as a copy of the Possession Order and advised that on 23 February 2023 the Public Trustee had been registered as the proprietor of the Property. A request was made that Mr O'Sullivan deliver vacant possession of the Property by 4 pm on 23 March 2023.
[9] O'Meara Affidavit, Annexure JO3, pages 9 - 13.
Mr O'Sullivan failed to deliver vacant possession of the Property to the Public Trustee within 28 days of the Public Trustee's interest in the Property being registered.[10]
[10] Affidavit of Matthew Charles Clark (Deputy Sheriff of Western Australia) sworn 14 January 2025 and filed 24 January 2025 (Clark Affidavit), pars 6 - 10 and 14 - 18.
On 11 April 2023, the Public Trustee filed with the Supreme Court a Form 6 - Application or Request to a Court for a Property (Seizure and Delivery) Order (PSDO) with respect to the Property.[11]
[11] Conlin Affidavit, Annexure SC6, par 11, pages 13 - 14.
On 18 April 2023, this court issued a Form 36 - PSDO to the Sherriff of Western Australia.[12]
[12] Conlin Affidavit, Annexure SC7, par 12, pages 15 - 16.
On 21 April 2023, a Deputy Sherriff of Western Australia, Matthew Charles Clark, attended the Property and spoke to Mr O'Sullivan. The Deputy Sheriff notified Mr O'Sullivan of the impending eviction and handed him a copy of an undated Sheriff Notice.[13] The Notice advised that the Sheriff of Western Australia would be attending on 10 May 2023 at 9.00 am to formally take possession of the Property.[14]
[13] Clark Affidavit, par 9, Annexure MC3, page 11.
[14] Clark Affidavit, Annexure MC3, page 11.
On 10 May 2023, the PSDO was executed, Mr O'Sullivan was evicted from the Property and possession of the Property was delivered to the Public Trustee.[15] The Deputy Sheriff also affixed a 'Sheriff Notice Property (Seizure and Delivery) Order' dated 10 May 2023 to the front door, front gate and back door of the Property.[16]
[15] Clark Affidavit, pars 14 - 56.
[16] Clark Affidavit, Annexure MC4, page 12.
During the execution of the PSDO by the Deputy Sheriff, Mr O'Sullivan left the Property and was informed by the Deputy Sheriff to the effect that the Property had been seized and if he returned, he would be trespassing.[17] Mr O'Sullivan acknowledged that the Deputy Sheriff had seized the Property and that he would be trespassing if he returned to the Property.[18]
[17] Clark Affidavit, pars 49, 52, 54.
[18] Clark Affidavit, par 53.
Following execution of the PSDO by the Deputy Sheriff, goods remained at the Property.[19] The goods were subsequently disposed of pursuant to the orders of a Magistrate on 13 December 2023.[20] On 27 February 2024 the Public Trustee filed a Form 14 - Record of goods disposed under court order.[21]
[19] Conlin Affidavit, par 14, Annexure SC8, pages 17 - 21.
[20] Conlin Affidavit, par 17, s 18, Annexure SC10, pages 58 - 59.
[21] Conlin Affidavit, par 21, Annexure SC13, pages 63 - 65.
On 18 October 2024, the Public Trustee's lawyers sent a letter to Mr O'Sullivan by ordinary post, addressed to the Property, advising that, as Mr O'Sullivan had unlawfully returned to the Property, proceedings for contempt would be commenced if he did not vacate the Property within 14 days. A further copy of the PSDO was enclosed with the letter.[22]
[22] O'Meara Affidavit, Annexure JO5, pages 15 - 18.
On 28 October 2024, the Public Trustee's lawyers instructed Investigative Solutions WA to conduct a field call at the Property to ascertain whether Mr O'Sullivan was occupying the Property.[23] Pursuant to that instruction, on 2 November 2024, Mr O'Donnell attended the Property and identified Mr O'Sullivan at the Property and took photographs of the Property.[24] Mr O'Sullivan informed Mr O'Donnell that he will not leave the Property and that he will need to be removed from the Property.[25] Specifically, Mr O'Donnell deposes:[26]
[23] O'Donnell First Affidavit, Annexure TLO1, page 5.
[24] O'Donnell First Affidavit, pars 7 - 16.
[25] O'Donnell First Affidavit, par 21.
[26] O'Donnell First Affidavit, pars 4 - 21.
Identification of the First Defendant
On 28 October 2022 at 11 :03am, I served a copy of the Form 74 -Originating Summons Appearance Required filed by the plaintiff in Supreme Court of Western Australia proceedings no. TRU 7 of 2022 on the first defendant at 5 Ollis Street, Safety Bay (Property). At the time, I identified the first defendant by asking "are you Michael Shaun O'Sullivan" to which he responded words to the effect of "yes".
Attendance at Property
By a letter dated 28 October 2024, MDL requested ISWA conduct a field call at the Property on 2 November 2024 to ascertain whether the first defendant is still occupying the Property. A copy of that letter is annexed hereto and marked "TL01".
I attended the Property on 2 November 2024 at 9:11am.
When I approached the front of the Property, I observed a handwritten note on the window of the Property which was illegible.
I knocked on the door of the Property and the same male referred to in paragraph 5 above answered the door of the Property.
When the first defendant opened the door of the Property, I observed that there was furniture inside the Property.
I said words to the effect that "I am looking for Michael O'Sullivan. I am here on behalf of the Public Trustee to see whether Michael O'Sullivan is still residing at the premises".
The first defendant responded with words to the effect that "did you not see the signs?", to which I informed him the signs were not on the gate.
The first defendant then said words to the effect that:
(a)"the note on the window was for 'no trespassing' and not to knock on the door again";
(b)"you have no right to be here"; and
(c)"I will call the police".
I said words to the effect of "you aren't supposed to be here", to which the first defendant responded words to the effect of "it is my house and as far as I am concerned, you are trespassing on my property and I have no intention of leaving".
I explained to the first defendant that I needed to take photographs of the Property.
I then took some photos of the Property. A copy of the photographs I took of the Property are annexed hereto and marked "TLO2".
Whilst I took the photographs, the first defendant followed me around the Property, yelling words at me to the effect of "leave the Property" and that he "would call the police".
I informed the first defendant that I could not speak to him directly about the proceedings.
I then observed the first defendant walk over to my car which was parked on the road out the front of the Property and stated to walk around it.
I followed him to my car and said words to the effect of "no worries, I will leave, you don't have to call the police, but I will inform the lawyers on exactly what has happened here".
The first defendant responded with words to the effect that "I won't speak to any lawyers, I won't leave. You need someone to remove me from the Property".

Contempt Application

By application filed 24 January 2025, the Public Trustee sought orders that Mr O'Sullivan (Contempt Application):
(a)be committed for contempt of court under CJEA s 98 by reason of his disobedience of Order 3 of the Possession Orders, alternatively of the PSDO;
(b)be imprisoned for contempt pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 55 r 4(1); and
(c)pay the Public Trustee's costs of the application.
The Contempt Application, and supporting affidavits, were personally served on Mr O'Sullivan on 4 February 2025.[27]
[27] Affidavit of Thomas Leonard O'Donnell sworn 12 February 2025 and filed 12 February 2025 (O'Donnell Second Affidavit), pars 2 - 6.
The Contempt Application came before me for directions on 12 February 2025. Mr O'Sullivan appeared in person. He made the point many times that he was not represented by a lawyer and did not understand the process. I formed that view that, at one level, he was being deliberately difficult.
At another level, I accept that, as he was as a litigant in person, I have to adjust the court processes to ensure that he receives procedural fairness. The principles for dealing with a litigant in person are well established. As a litigant in person, Mr O'Sullivan is entitled to some leniency in relation to compliance with the court rules.[28] The court is required to approach the documents in which he articulates his position with some flexibility.[29] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his position, there is no viable defence which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[30] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[31]
[28] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[29] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[30] Sethi v Bhavsar [2020] WASCA 52 (Sethi) [27] (reasons of the court).
[31] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
One 'abiding difficulty' faced by the court is 'the tension between the duty of a … judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[32] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[33] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[34]
[32] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 (Zerjavic) [74] (judgment of the court).
[33] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[34] Zerjavic [74] - [75].
Aside from Mr O'Sullivan appearing in person, there was another aspect of what he said that I need to take into account. This is that on many occasions at the hearing on 12 February 2025 he told me that he was a person under a disability. I invited him to let me know the nature of his disability so that I could take that into account in adjusting the court processes. Aside from telling me that he was on medication, he declined to tell me any detail about his disability.[35] It was evident to me that Mr O'Sullivan had some difficulty standing up and sitting down, so I told him that I did not mind whether he sat or stood during the hearing, whatever was best for his back. At times during the hearing, Mr O'Sullivan was able to firmly articulate his views as to why the court should not make a contempt order. So it was readily apparent to me that, whatever disability he had, it did not prevent him from being able to firmly articulate his views.
[35] ts 10 - 13 (12/02/25).
During the hearing on 12 February 2025, I provided Mr O'Sullivan with a document entitled 'Handout for a Litigant in Person Charged with Contempt'. This document sets out in some detail the procedure that would be adopted at the contempt hearing. Mr O'Sullivan left this document at the bar table when he left court at the conclusion of the hearing, where it was found by my staff. My staff sent the document to him by post just in case he left it in court inadvertently.

In addition, I explained in some detail the process that I proposed to follow at the contempt hearing. In particular, I informed Mr O'Sullivan of his right to silence, explaining the privilege against self-incrimination in lay terms. I also told him that the orders I proposed to make on that occasion would take into account this 'right'. I explained that the first hearing would be to determine whether he was in contempt. If the Public Trustee proved this beyond a reasonable doubt, then there would be a second hearing to determine the penalty.[36]
[36] ts 5 - 6 (12/02/25).
I made the following orders:
1.By 24 February 2025 the plaintiff file:
(a)a list of the affidavits on which it proposes to rely on at the hearing of the contempt application (the Hearing); and
(b)submissions in support of the orders sought.
2.By 25 February 2025 the plaintiff personally serve a copy of the following documents on the defendant:
(a)any of the affidavits in paragraphs 1(a) which have not already been served on the defendant;
(b)its submissions;
(c)these orders; and
(d)a copy of the transcript of the hearing today.
3.By 25 March 2025, the defendant file and serve:
(a)any affidavit he proposes to rely on at the Hearing, without prejudice to his right to adduce oral evidence at that hearing;
(b)a list of the deponents of the affidavits in paragraph 1 that he wishes to cross-examine; and
(c)any submissions for the Hearing.
4.The Hearing be listed for Friday 4 April at 10:30am.
5.The costs of the hearing today be reserved.
The order in par 3(a) took into account that Mr O'Sullivan has the benefit of the privilege against self-incrimination.[37]
[37] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [66] - [67] (French CJ, Kiefel, Bell, Gageler and Keane JJ) (CFMEU); Woods v Skyride Enterprises Pty Ltd [2012] WASC 4 [13] (EM Heenan J).
On 24 February 2025, the Public Trustee filed a list of the affidavits on which it proposed to rely at the hearing, being the:
(a)Conlin Affidavit;
(b)O'Meara Affidavit;
(c)Clark Affidavit; and
(d)O'Donnell First Affidavit.
On 25 February 2025 the Public Trustee filed and served submissions in support of the Contempt Application (P Submissions).
Mr O'Sullivan did not file any affidavits, nor any list of the deponents of the affidavits to be relied on by the Public Trustee that he wished to cross-examine. He did, however, send a letter dated 7 March 2025 to the Principal Registrar of the Court which I will treat as his submissions in opposition to the Contempt Application (7 March Submissions).
On 2 April 2025 the Public Trustee filed an affidavit sworn by Ross Cutter (a process server) confirming that personal service of the documents in par 2 of the orders made on 12 February 2025 had been effected (Cutter Affidavit).
At the hearing on 4 April 2025 the Public Trustee was represented by counsel. Mr O'Sullivan did not appear. I formed the view that Mr O'Sullivan had been given a fair and proper opportunity to answer the charge[38] and that the hearing could proceed in his absence.
[38] Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510, 516 (judgement of the court); Briggs v Lunt [No 4] [2011] WASCA 145 [43] (Pullin JA) (Briggs).
At the commencement of the hearing counsel for the Public Trustee read in the affidavits at [31]. Counsel also read the O'Donnell Second Affidavit and the Cutter Affidavit. Counsel relied on the P Submissions and closed her case.
I then advised counsel for the Public Trustee that I was satisfied it had proven the contempt beyond a reasonable doubt, giving short reasons. I made the following orders. As I had foreshadowed to Mr O'Sullivan on 12 February 2025, this included a further hearing on the issue of penalty. The orders made were:
1.Michael Shaun O'Sullivan is convicted for contempt of this Honourable Court by reason of his conduct in unlawfully resuming possession of real property being Lot 133 on Plan 9720, being the whole of the land comprised in Certificate of Title Volume 1348 Folio 903, known as 5 Ollis Street, Safety Bay, Western Australia (Property), seized from him under a property (seizure and delivery order) dated 18 April 2023.

2.The application be adjourned to Monday 14 April 2025 at 2:15pm for hearing of argument in relation to penalty and costs.
3.Michael Shaun O'Sullivan is required to attend the hearing listed by order 2 in person, with a failure to attend placing Michael Shaun O'Sullivan at risk of being convicted for contempt for that failure to attend.
4.The Public trustee serve Michael Shaun O'Sullivan a copy of:
(a)these orders;
(b)a transcript of the hearing on 4 April 2025;
(c)reasons for decision; and
(d)any submissions as to sentence,

by leaving it in the mailbox at the Property.
5.The costs of the hearing today be reserved.

I also advised counsel that I would shortly publish detailed reasons for making these orders, which are as follows.

Principles for determining whether a contempt has been committed

The Contempt Application is brought pursuant to CJEA s 98 and/or RSC O 55.
By CJEA s 96(5), 'if a person unlawfully resumes possession of real or personal property seized from the person' under a PSDO, CJEA s 98 applies as if the person had disobeyed a judgment to which CJEA pt 5 div 2 applies. CJEA s 98(1) provides that if a natural person 'disobeys a judgment' to which CJEA pt 5 div 2 applies, the person is guilty of a contempt of court.
In my view, the appropriate basis on which to determine the Contempt Application is that Mr O'Sullivan unlawfully resumed possession of the Property following eviction on execution of the PSDO pursuant to CJEA s 96(5). This is the most current breach, and the continuing one.
The reference to 'disobeys' in s 98 imports the common law requirements relating to contempts.[39]
[39] Mammoth Investments Pty Ltd v Donaldson [2024] WASCA 71 [14] - [17] (Quinlan CJ) (Mammoth); Caratti v Boban Pty Ltd (Administrators Appointed) [No 2][2015] WASC 139 [82] - [83] (Mitchell J) (Caratti).
Where the CJEA and Civil Judgments Enforcement Regulations 2005 (WA) do not provide to the contrary, RSC O 55 applies to the determination of a contempt pursuant to CJEA s 98.[40]
[40] Briggs [19] - [28].
The elements required to establish contempt pursuant to CJEA s 96(5) are as follows, drawing on the principles generally in relation to a contempt by breach of an order of the court:[41]
(a)a property seizure and delivery order was made by the court in relation to property in which the contemnor was in possession;
(b)the terms of the order were clear, unambiguous and capable of being complied with;
(c)the contemnor had knowledge of the terms of the order, or at least its substance;
(d)the property seizure and delivery order was executed, resulting in the contemnor being evicted from the property;
(e)the contemnor unlawfully resumed possession of the property; and
(f)the contemnor's conduct in resuming possession of the property was deliberate and voluntary.
[41] See for example: Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 [21] (Gething J) (Pascoe); Peterson v Ceccon [No 2] [2024] WASC 387 [18] (Lemonis J) (Peterson [No 2]); Mammoth [14], [15]; Peterson v Ceccon [2023] WASC 488 [27] (Archer J) (Peterson); Yap [170]; Porter v Steinberg [2019] WASC 291 [36] ‑ [39] (Tottle J) (Porter); The Owners of the Wills Building Strata Plan 38579 v Coleman [2018] WASC 219 [23] - [25] (Archer J); Perpetual Trustees Victoria Limited v Allen [2012] WASC 258 [18] - [30] (Beech J) (Allen).
The principles that apply in proving these issues are well established:[42]
(a)a contempt proceeding takes place as a civil hearing and in accordance with the civil procedure rules of the court;
(b)the onus of establishing conduct which amounts to a contempt of court lies on the person asserting the contempt;
(c)the contemnor is entitled to the presumption of innocence;
(d)a charge of contempt, whether criminal or civil, must be proven beyond a reasonable doubt;
(e)the facts must be proved by admissible evidence;
(f)as a contempt application is not an interlocutory application, hearsay evidence is not admissible pursuant to RSC O 37;
(g)the knowledge of the contemnor may be proven by inference; and
(h)for a fact to be proven by inference, it must be the only available or reasonable inference.
[42] Pascoe [22] and the authorities cited therein; Allen [18] - [30].

The basis on which the Public Trustee proved the contempt

The 7 March Submissions are nonsensical. They commence with the following:
ON 10 MAY 2023 VESSEL LAYING AT BERTH AT REGISTER NUMBER 133/P9720 DUPLICATE EDITION VOLUME 1348 FOLIO 903 WESTERN AUSTRALIAN DUPLICATE CERTIFICATE OF TITLE UNDER THE TRANSFER OF LAND ACT 1893 WAS BOARDED BY A GANG OF WESTERN AUSTRALIAN HIGHWAYMEN ALLEGING TO HAVE AUTHORITY AND IMMUNITY ISSUES BY THE SUPREME COURT OF WESTERN AUSTRALIA ABN: 70598519443 * ENTERED AND LOGGED INTO THE VESSELS LOGBOOK AS * OCCURRING AT 0:900hrs.
The remainder of the 7 March Submissions are along similar lines. There is nothing in the 7 March Submissions which raises anything which even suggests that the Public Trustee has not proven each of the elements set out at [44] beyond a reasonable doubt.
Based on the facts set out at above, I am readily satisfied that the Public Trustee has proven beyond a reasonable doubt that:
(a)a property seizure and delivery order was made by the court in relation to the Property (being the PSDO) ([14]);
(b)the terms of PSDO were clear, unambiguous and capable of being complied with by Mr O'Sullivan;
(c)prior to the execution of the PSDO, Mr O'Sullivan was in possession of the Property (for example, [15]);
(d)as a result of his conversation with the Deputy Sheriff on 21 April 2023, Mr O'Sullivan had knowledge of the terms of the PSDO, or at least its substance ([15] - [17]);
(e)the PSDO was executed, resulting in Mr O'Sullivan being evicted from the Property ([16] - [17]); and
(f)after the execution of the PSDO, Mr O'Sullivan resumed possession of the Property ([20]).
Further, I find beyond a reasonable doubt that Mr O'Sullivan acted unlawfully in resuming possession of the Property as the Public Trustee is the registered proprietor of the Property and the Possession Order required Mr O'Sullivan to give up vacant possession of the Property to the Public Trustee.
As to whether Mr O'Sullivan's conduct in resuming possession of the Property was 'deliberate and voluntary', deliberate disobedience of an order does not require a specific intention to break the law or even knowledge on the part of Mr O'Sullivan that the relevant conduct was a failure to comply. The Public Trustee does not have to prove a conscious intention to break the law. It is sufficient that it proved that Mr O'Sullivan was aware of the facts that make his 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.[43]
[43] Mammoth Investments [15]; Peterson[27]; Yap [170]; Porter [38].
On the facts of this case as set out at [1] - [20], I am satisfied that the only reasonable inference is that Mr O'Sullivan's actions in resuming possession of the Property were not casual, accidental or unintentional, but were rather deliberate and voluntary. There are no 'positive proved facts' suggesting any alternate inference, let alone one that is reasonable.[44] I am satisfied beyond a reasonable doubt that Mr O'Sullivan's conduct in resuming possession of the Property was deliberate and voluntary.
[44] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [55] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
For these reasons, I found that the Public Trustee had proven the contempt alleged against Mr O'Sullivan beyond a reasonable doubt.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
4 APRIL 2025