The Public Trustee as administrator of the Estate of Jean Mary O'Sullivan v O'Sullivan [No 2] - [2025] WASC 162

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 [No 2] [2025] WASC 162
CORAM:   GETHING J
HEARD:   14 APRIL 2025
DELIVERED          :   14 APRIL 2025
PUBLISHED           :   6 MAY 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 - Contemnor to be imprisoned if vacant possession of the property is not given up

Legislation:

Rules of the Supreme Court (WA) O 55 r 7

Result:

Term of imprisonment imposed

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):

Allbeury v Corruption and Crime Commission [2012] WASCA 84
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Attorney General for Western Australia v Marijanich [2024] WASC 312
Attorney General v Morrison [No 3] [2022] WASC 323
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Chief Executive Officer, Department of Environment and Conservation v Szulc [No 2] [2011] WASC 315
Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415
Cossnes v Petta [No 3] [2015] WASC 492
Dental Board of Australia v Traianou [2011] WASC 293
Fu v Cha [No 4] [2020] WASC 292
Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Perpetual; Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82
Public Trustee v O'Sullivan [2025] WASC 108
R v T [2022] WASCA 34; (2022) 58 WAR 77
Resolute Ltd v Warnes [2001] WASCA 4
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298
The Public Trustee as administrator of the estate of Jean Mary O'Sullivan v O'Sullivan [2025] WASC 75
Yap v Matic [No 4] [2022] WASC 422
Yap v Matic [No 6] [2023] WASC 24
Yap v Matic [No 7] [2023] WASC 55

GETHING J:

(This judgment was delivered extemporaneously on 14 April 2025 and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities).

Introduction

On 4 April 2025, I found Michael Sean O'Sullivan guilty of contempt. Specifically, I found that:
Michael Sean 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 7920, being the whole of the land comprised and 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.
I later published reasons for coming to this decision, which were reported as Public Trustee v O'Sullivan [2025] WASC 108. These reasons are to be read against the backdrop set out in that decision. I will also carry over the abbreviations from that decision to this one.
Having made the finding of contempt, I adjourned the application to today for hearing of arguments on penalty and costs. In accordance with the orders I made on 4 April 2025, on 11 April 2025 Mr O'Sullivan was served with a copy of those orders and other documents by leaving them at the mailbox at the property. This information is before the court in an affidavit of Thomas O'Donnell filed 14 April 2025.
The Public Trustee filed detailed written submissions on 10 April 2025. It appears today by counsel.
Mr O'Sullivan has not appeared today. I am satisfied that he was on notice of proceedings and I am also satisfied he has had sufficient opportunity to attend and make any submissions he wishes to make in relation to penalty.

Principles

The power of the court to punish a contemnor for contempt is set out in Rules of the Supreme Court (WA) (RSC) O 55 r 7, which provides:
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.
RSC O 55 r 7 is not definitive of the court's power to punish for contempt of court.[1] However, it is sufficient for present purposes.
[1] Resolute Ltd v Warnes [2001] WASCA 4 [4] (judgment of the court) (Resolute); Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298 [11] (Wheeler J).
The punishment to be imposed is a matter entirely within the discretion of the court.[2] The powers conferred on the court are wide and flexible.[3]
[2] Allbeury v Corruption and Crime Commission [2012] WASCA 84 [215] (Buss JA) (Allbeury); Attorney General for Western Australia v Marijanich [2024] WASC 312 [29] (McGrath J) (Marijanich); Attorney General v Morrison [No 3] [2022] WASC 323 [10] (Curthoys J) (Morrison [No 3]); Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415 [15] (Le Miere) (Kenney); Chief Executive Officer, Department of Environment and Conservation v Szulc [No 2] [2011] WASC 315 [56] (Martin CJ) (Szulc); Resolute [5].
[3] Szulc [56]; Resolute [5].
In exercising the discretion, there are two important purposes which a sentence for contempt must serve. The first is that the punishment must be effective to enforce the order of the court in the particular case, no more but no less.[4] The second is that the sentence must also be sufficient to give effect to the public interest in vindicating the authority of the court and maintaining the integrity of the court's processes.[5]
[4] AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 115 (Gibbs CJ, Mason, Wilson and Deane JJ (AMIEU); R v T [2022] WASCA 34; (2022) 58 WAR 77 [70] (judgment of the court) (R v T); Perpetual Trustee Company Ltd v Pascoe Partners Custodian Services Pty Ltd [2025] WASC 82 [43] (Gething J) (Pascoe).
[5] R v T [70]; Pascoe [44]; Peterson [32]; Yap v Matic [No 6] [2023] WASC 24 [16] (Archer J) (Yap [No 6]).
The Sentencing Act 1995 (WA) does not apply to or in respect of a person being punished for contempt of court.[6] However, its terms provide a sound guide to determining the appropriate punishment for contempt, in particular, that:[7]
(a)the sentence must be commensurate with the seriousness of the offence; and
(b)imprisonment is a sentence of last resort.
These are consistent with the principle of common law that the sentence must be proportional to the offence.[8]
[6] Allbeury [92].
[7] R v T [110], [114]; Marijanich [35]; Yap [No 6] [18]; Morrison [No 3] [11]; Kenney [15]; Cossnes v Petta [No 3] [2015] WASC 492 [6] (Jenkins J) (Cossens); Szulc [56].
[8] Allbeury [252]; Yap [No 6] [18].
Relevant sentencing factors include:[9]
[9] See generally: R v T [106] - [118]; Allbeury [216] - [280]; Pascoe [46]; Peterson [No 2] [67] - [73]; Marijanich [37]; Peterson [39]; Yap v Matic [No 7] [2023] WASC 55 [28] - [29] (Solomon J) (Yap [No 7]; Yap [No 6] [21]; Morrison [No 3] [12]; Galati [30] - [38]; Kenney [16]; Cossens [10] - [27]; Szulc [52] - [75].
(a)the seriousness of the contempt proved;
(b)the contemnor's culpability;
(c)the reasons or motive for the contempt;
(d)whether the contemnor has received or tried to receive a benefit from the contempt;
(e)whether there has been any expression of remorse, genuine contrition, or acceptance of responsibility by the contemnor;
(f)whether the contemnor pleaded guilty to the contempt, and if so, when;
(g)the contemnor's personal circumstances;
(h)the character of the contemnor;
(i)the prior relevant criminal record of the contemnor or its absence (suggesting prior good character);[10]
(j)the absence or presence of a prior conviction for contempt;
(k)compliance with other orders, including whether past fines have been paid;
(l)personal deterrence;
(m)general deterrence; and
(n)the need for denunciation of the contemptuous conduct.
[10] Allbeury [238], [245], [248]; R v T [50], [96]; Marijanich [60]; Morrison [No 3] [34] - [35]; Cossnes [21].
In considering whether to impose a fine, and if so, the amount, the means of the offender, and the extent to which the payment of the fine would burden the contemnor, are relevant considerations.[11] The court may also take into account costs which the contemnor will be required to pay.[12]
[11] Peterson [103]; Yap [No 6] [33]; Kenney [25].
[12] Marijanich [86]; Morrison [No 3] [18], [24] - [27].
The Public Trustee in its initial application sought a finding that the contempt amounted to a criminal contempt. That distinction was summarised by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway:[13]
In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.
[13] Witham, 534, 530; Allbeury [61] - [64].
Their Honours went on to observe that the distinction between a civil contempt and a criminal contempt is, in significant respects, illusory.[14] Or as the Court of Appeal has recently observed, 'reduced almost to the point of obliteration'.[15]
[14] Witham (534); CFMEU [42]; Galati [27]; Coleman [85].
[15] R v T [44].
The approach reflected in recent decisions of the Supreme Court is that an analysis of whether the contempt is civil or criminal is not of great assistance in determining the appropriate punishment.[16] RSC O 55 generally and r 7 in particular does not draw a distinction between a criminal and civil contempt; all that is required to be proven is a contempt.[17] Moreover, O 55 r 7 does not require a finding that the contempt was 'contumacious' before the power to imprison is available.[18]
[16] Pascoe [50]; Dental Board of Australia v Traianou [2011] WASC 293 [37] (Beech J) (Traianou); Yap [No 6][12] ‑ [13].
[17] Pascoe [50]; Traianou [38].
[18] Pascoe [50]; Traianou [38].
Having said that, the recent practice of the Supreme Court is, as a matter for fact, for there to be an element of egregiousness over and above a deliberate involuntary breach in order to justify the imposition of a term of imprisonment, suspended or immediate.[19] This is best seen as a reflection of the principle that imprisonment is a sentence of last resort.[20] Sometimes the traditional term 'contumacious' is used.[21] Other phrases used include:
(a)'serious in the sense that it was a deliberate and defiant disregard of an order of the court' … 'has chosen to knowingly defy court orders';[22]
(b)'deliberate defiance'… 'defiantly chose to repeatedly breach';[23]
(c)'blatant defiance';[24]
(d)'wilful and deliberate… repeated and sustained, non-isolated… deliberate and sustained character';[25] and
(e)'wilfully and deliberately'.[26]
[19] Pascoe [51].
[20] R v T [114]; Yap [No 7] [50]; Traianou [38].
[21] R v T [102]; Allbeury [253].
[22] Yap [No 7] [30], [42].
[23] Peterson [47].
[24] Cossnes [18].
[25] Traianou [48], [64].
[26] Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [44] (Martin CJ).

What penalty should be imposed on Mr O'Sullivan?

The contempt proven is serious. Since 24 March 2023, Mr O'Sullivan has had no legal right to be in possession of the Property. At the time of the execution of the PSDO, this should have been abundantly clear to him. It was also made clear to him by the Deputy Sheriff that he could no longer reside at the Property. He did leave on that day, but only to return, where he currently remains. He has had the benefit of being able to reside at the property unlawfully for at least two years, depriving the rightful owner of the opportunity to either live in it or sell it or benefit from the rental income from it. His actions have frustrated the attempts of the Public Trustee to finalise administration of the estate. His actions have and are continuing to impose upon the beneficiary of the estate unnecessary costs. Further, in another recent decision of the court, Mr O'Sullivan has been barred from making any claims in relation to the estate in the future.[27]
[27] The Public Trustee as administrator of the estate of Jean Mary O'Sullivan v O'Sullivan [2025] WASC 75.
I have already found that his conduct in remaining in possession of the Property was deliberate and voluntary. This was a sufficient characterisation for the purposes of finding contempt, but a stronger characterisation is warranted for sentencing purposes. Mr O'Sullivan's continued occupation of the Property in defiance of the Possession Order and the PSDO of the court or his entitlement to do so has been unequivocally rejected and is on any account egregious. His conduct can properly be described as blatant and persistent defiance of an order of the court. He has chosen to knowingly and deliberately defy orders of the court on a continuing basis. It is contumacious.
I do accept that Mr O'Sullivan is of advanced years and has health issues. However, he has had well over two years to make alternate arrangements for his accommodation. There is nothing else that I can discern from Mr O'Sullivan's perspective that is mitigating. He does not have the benefit of a plea of guilty to the contempt or anything resembling remorse, genuine contrition or acceptance of responsibility.
'Personal' deterrence is a significant factor. There is a clear need to both enforce compliance with the Possession Order and deter Mr O'Sullivan from attempting to regain possession. Having said that, this factor is not heightened by evidence of a prior conviction for contempt or a past relevant criminal record. However, as I mentioned in paragraph [4] of the contempt decision, his lack of engagement with the court in relation to the Property is longstanding.
General deterrence is also a significant factor. '[O]ther like-minded individuals must be aware that the court will not stand by and allow its orders to be deliberately flouted'.[28] There is a clear need to publicly denounce Mr O'Sullivan's conduct. This reflects the two purposes served by sentencing for contempt which I mentioned earlier.
[28] Cossnes [26].
As to the nature of the penalty, given Mr O'Sullivan's attitude to date and his apparent lack of financial resources, the imposition of a fine would, in my view, be wholly ineffective as a penalty.
Rather, given my findings as to the seriousness of the contempt, only a term of imprisonment would be proportionate. I am of the view that it is appropriate to impose a penalty of last resort. Nothing short of imprisonment will compel compliance. However, the order should be constructed to give Mr O'Sullivan one last opportunity to comply.

Costs

As contempt proceedings are in the civil jurisdiction, they attract the rule that ordinarily applies in that jurisdiction that costs follow the event.[29]
[29] Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ); Allbeury [8] (McLure P), [70]; Fu v Cha [No 4] [2020] WASC 292 [5] (Le Miere J) (Cha).
Indemnity costs orders are commonly made in contempt proceedings, the rationale being that an applicant who successfully brings a contempt application serves the public interest and should not be out of pocket.[30] In any event, I would have been readily satisfied on the principles set out in Swansdale Pty Ltd v Whitecrest that an order for indemnity costs was appropriate.[31]
[30] Yap [No 6] [44] - [52]; Yap v Matic [No 4] [2022] WASC 422 [34] (Solomon J); Cha [5]; Traianou [69].
[31] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] (reasons of the court).
Mr O'Sullivan should be ordered to pay the Public Trustee's costs on an indemnity basis.
The orders made are as follows:
(1)Michael Sean O'Sullivan be sentenced to a term of imprisonment of 28 days for the contempt as set out in the orders of the court made 4 April 2025.
(2)The Sheriff (or an officer of the Sheriff) is to personally serve a copy of this order on Mr O'Sullivan by 17 April 2025 with:
(a)the Sheriff having power to enter, including forcibly enter, onto the property known as 5 Ollis Street, Safety Bay, Western Australia, (Property) for the purposes of doing so; and
(b)there be liberty to apply in the event that personal service is not able to be effected.
(3)Subject to the order in paragraph 4, the order for committal is not to be executed before 9 am on 1 May 2025.
(4)The order for committal is not to be executed if:
(a)by 4 pm on 30 April 2025 Mr O'Sullivan has given possession of the Property to the Public Trustee (or the Sheriff on its behalf); and
(b)at all times after giving up possession, Mr O'Sullivan does not go within 100 metres of the external boundary of the Property, or remain there.
(5)If the Public Trustee receives possession of the Property prior to 4 pm on 30 April 2025, it is to notify the court of this fact by email to [email protected] as soon as practical after that occurs.
(6)If the Public Trustee does not receive possession of the Property prior to 4 pm on 30 April 2025, then at any time after 9 am on 1 May 2025, the Sheriff may retake possession of the Property and by this order it is given the same powers as if the Sheriff was executing a property seizure and delivery order in relation to the Property, including:
(a)having the power to enter and retake possession of the Property, with such assistance as may be required and if necessary, by force, and evict persons not entitled to be there, take possession of the Property and deliver it to the plaintiff's possession; and
(b)authorising the plaintiff or Sheriff to dispose of any goods left at the Property.
(7)Once the Public Trustee receives possession of the Property, it is to:
(a)arrange for any mail addressed to Mr O'Sullivan received at the Property to be made available for collection by him from time to time at its office at 533 Hay Street, Perth; and
(b)advise Mr O'Sullivan of an address at which any personal effects of his removed from the Property may be collected within the following 28 days, after which the plaintiff may destroy the goods.
(8)If the order of committal has not been executed by 17 April 2026, it is to lapse.
(9)Once Mr O'Sullivan has vacated the Property, he must not go within 100m of the Property or remain there.
(10)There be liberty to apply in relation to the operation of these orders.
(11)Mr O'Sullivan pay the costs of the contempt application on the basis that the plaintiff be paid all costs incurred by it in the application, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, it is completely indemnified for its costs.

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
6 MAY 2025