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A Perth court has fined a mining tycoon and his company $50,000 each for contempt of court after he disclosed mediation discussions to the DPP. The case is a reminder that mediation confidentiality is not merely aspirational — courts will enforce it, and the consequences can be severe. WA’s statutory footing is explicit; Victoria’s is less so, but mediation attendees everywhere cannot assume that confidentiality is merely a platitude.

The longer read

Mediations should always start with a reminder that everything said in that mediation is to remain confidential and without prejudice until otherwise agreed (typically with signed terms of settlement). But what happens when a mediation’s confidentiality bubble is breached?

A Perth mining tycoon found out this month in a judgment that fined him and his company $50,000 each for contempt of court and ordered that they “completely” indemnify their opponent for his legal costs of those contempt proceedings.

Background

If you didn’t know the story was from WA, you’d probably guess. The backstory is necessary to give context to the mediation.

Peter Bartlett controls the successful, privately-held mining company FMR Investments. In 2020, FMR fell out with one of its executives, Patrick Keogh, and accused him of stealing gold-bearing ore and other fraudulent conduct.

Court action followed in the criminal and civil courts.

In the criminal system, Keogh was acquitted on one set of charges in 2023. Importantly, there was also a second set of charges listed for trial in 2024, but the WA Director of Public Prosecutions ultimately decided to withdraw those.

In the civil system, Keogh was less successful. Last month, in FMR Investments Pty Limited -v- Keogh [2026] WASC 138, Musikanth J found Keogh to be “an unreliable and most unsatisfactory witness” and liable to pay FMR at least $878,000 (it appears final orders have not yet been made).

The contempt of court

A success for Bartlett and FMR? Not entirely. Last week, in the separate matter of Keogh v Bartlett [2026] WASC 166, Bartlett and his company were each fined $50,000 for contempt of court for breaching the confidentiality of the mediation in the main civil case.

During that main case, there had been a court-ordered mediation where Bartlett and Keogh spoke to each other directly. Bartlett considered that Keogh had made admissions against his own interests during that discussion and that such admissions might be of interest to the prosecution in the proposed second criminal prosecution of Keogh. Bartlett informed the DPP of those alleged admissions at the mediation accordingly. Keogh then got wind of Bartlett’s disclosures to the DPP and commenced proceedings for contempt of court against both Bartlett and FMR.

That contempt decision was delivered in the Western Australian Supreme Court this month. Bartlett and FMR admitted their contempts but sought to have them discharged. Cobby J was unimpressed.

Among other things, Cobby J said –

• Parties to civil proceedings should be aware that disclosure to third parties of what takes place in the course of a mediation carried out pursuant to an order of the court is generally prohibited, and that the court will act to safeguard confidence in the mediation process.
• It is open to question whether the unauthorised disclosure of information from a mediation (at least in Western Australia) is to be characterised as a criminal contempt, on the basis that conduct in breach of the obligation interferes or tends to interfere with the course of justice. Any reduction in the confidence of litigants in the confidentiality of the mediation process, with the consequent reduction in their willingness to deal openly with each other, would severely impact upon the resolution of disputes without the need for a trial, and consequently the court’s ability to carry out its function.
• As Bartlett’s disclosures to the DPP had not had the effect he desired (namely, of persuading the DPP to prosecute Keogh to a second criminal trial), Bartlett’s conduct did not warrant a term of imprisonment.
• Bartlett’s apparently ample means – illustrated by, inter alia, keeping unrefined gold ore worth $4 million to $8 million (once refined) at his home in a salubrious river-side Perth suburb – required that the fines for Bartlett personally and his company not be “too small to be of consequence to them.”

What are the lessons?

Several thoughts occur to me:

• The WA/Victoria distinction matters. Cobby J’s contempt decision is very much framed as a breach of s 71 of WA’s Supreme Court Act. That section requires that anything said or done at a mediation is not admissible evidence and is confidential unless the parties agree otherwise. The equivalent provision in Victoria’s Supreme Court Act is section 24A, which is to a similar effect regarding admissibility but has no express mention of confidentiality. Disclosure of confidential information from a mediation in Victoria, hence, might still arguably be a contempt of court, but it would not be the very clear statutory breach that the same disclosure is in Western Australia.
• Note the recipient and the purpose of the improper disclosure in this case. It was not, say, theft of trade secrets or commercial exploitation of stock market-sensitive inside information. It was the conduct of a formal interview with lawyers representing the Director of Public Prosecutions. It would surprise most lay people and many lawyers to see the Supreme Court fine an individual for volunteering information to the prosecution authorities to assist their work within the justice system. Don’t be misled by such lay instincts. Lawyers familiar with confidentiality obligations generally (for example, the implied Harman undertaking) won’t be surprised by this decision.
• What were the DPP’s lawyers thinking when they interviewed Bartlett about discussions at a mediation that they should have known was confidential? We don’t know. Cobby J’s judgment names two state prosecutors but makes no adverse comment about either.
• It seems that jail was a real possibility. Cobby J states that because Bartlett’s scheme to assist the DPP’s second prosecution of Keogh via the improper disclosures had ultimately failed in its objective of furthering that prosecution (remember that the DPP withdrew those charges)  Bartlett’s conduct did not warrant a term of imprisonment. Pause here to ponder the counterfactual. Had things played out differently, Bartlett might have become a prosecution witness in Keogh’s second criminal trial; Keogh might then have been convicted and jailed; and Bartlett might have then also been jailed for his contempt of court in assisting (possibly truthfully but improperly regardless of that) in Keogh’s successful prosecution. (It is probably stretching the counterfactual too far to imagine that the tycoon prosecution witness and his fallen general manager might even have ended up sharing a jail cell together.)
• Mediations cannot work properly unless all involved expect that they will be genuinely confidential. Cobby J’s observations to that effect are undoubtedly correct, no matter whether there is an express statutory requirement of confidentiality in your jurisdiction.