Tag Archives: confidentiality

More gold from the West … mediations, confidentiality breaches and contempt

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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 baron 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 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 magnate 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.

(Mainly) keeping a sugar daddy’s confidences

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Geoffrey Edelsten

Geoffrey Edelsten (Photo credit: Wikipedia)

Are confidentiality clauses worth the paper they are written on?
Between parties of good will they are unnecessary. Between parties of ill will their enforcement is usually fraught. The genie secret can escape the confidentiality bottle too easily and, once loose, can seldom be ordered by any court entirely back into that bottle.
Dr Geoffrey Edelsten was reminded of this last week when he scored a dubious victory in Norman South Pty Ltd and Geoffrey Edelsten v da Silva [2012] VSC 477.
Australia’s most famous struck off GP ‘met’ the young, female defendant, Ms da Silva, at www.sugardaddyforme.com . (Go on — have a peek at a very strange world which promotes itself as “a dating site that promises you the man – and the bank account – of your dreams!”) Our star-crossed litigants then met in person, in Florida, one weekend in March this year.
Money subsequently changed hands. On the Edelsten version, that money was a $5000 loan from his company (the first plaintiff) to the defendant. He said the loan was governed by a written agreement which included a wide-reaching confidentiality clause.
Ms da Silva admitted receiving the $5000 but initially told the court it was a gift. Later in the trial she characterised the payment as a loan without any confidentiality obligations attaching to it. She said certain emails in evidence that appeared to contradict her were forgeries.
In a contest between two extremely unimpressive witnesses Edelsten was preferred to Ms da Silva.
What else transpired between the pair? We will probably never know because Ms da Silva is now injuncted from, among other things, persisting with the disclosures she had started making to a Herald Sun reporter.
It was those disclosures which apparently prompted Edelsten to seek a cocktail of orders against da Silva including for repayment of the $5000 loan, damages, injunctions to prevent further disclosures and a non-publication order under s 18(1)(c) of the Supreme Court Act in respect of the entire proceeding.
Edelsten succeeded on the loan claim and the injunctions (because of the confidentiality clause rather than breach of confidence principles) he failed to get damages and he got only a partial non-publication order.
Most successful litigants enjoy public vindication but Edelsten would probably have appreciated private vindication more.
Instead Justice David Beach suppressed “information derived from the proceeding that would disclose or further disclose the substance of any dealings” between the two main players but expressly exempted his 14 page judgment from that order.
Hence the judge’s scathing assessment of the main witnesses’ testimony can be shared with the world. Here (minus the footnotes) are some highlights from a stinging judgment:

1 A little over 23 years ago, Brooking J commenced a judgment with the statement “Titus Oates was the greatest perjurer that ever lived”.  Self-evidently, his Honour was not the trial judge in the present proceeding.
….
9 …. one of the problems with this proceeding was that in respect of a significant number of the emails, each side had different versions of the relevant email. Each side accused the other of fraud. Specifically, each party made accusations that various emails passing between them had been fraudulently altered.
….
15 ….most of the evidence given by the defendant was demonstrably false and could not be believed.
16 However, Dr Edelsten was no more an impressive witness than Ms da Silva. The evidence disclosed that in his dealings with Ms da Silva he lied to her on a number of occasions. Further, much of Dr Edelsten’s evidence was simply unbelievable when one had regard to the whole of the evidence. Specifically, Dr Edelsten’s evidence as to being largely (if not wholly) motivated by altruism or charity in his dealings with the … defendant must be rejected. Additionally, much of Dr Edelsten’s evidence (and particularly the evidence I have referred to in this paragraph) is inherently unlikely when one looks at the written record of the communications passing between him and the defendant.
17 While, in some circumstances, and depending upon the demeanour of the particular witness (or other relevant matters), inherently unlikely evidence might nevertheless be accepted, nothing about Dr Edelsten’s appearance in the witness box or any of the evidence in this case led me to conclude that I should accept the evidence given by him (and to which I have referred) in the face of the more likely true position as disclosed in the emails tendered on his behalf. Specifically, the way in which Dr Edelsten gave evidence was unsatisfactory. On a number of occasions, there were inappropriately long pauses before an answer was given to a straightforward question that should have been capable of a ready answer. From time to time, Dr Edelsten appeared to be contemplating which of a selection of answers might prove least embarrassing or least destructive to his case. Further, Dr Edelsten’s willingness to deny seeing the contents of some attachments to a particular email from the defendant did not assist his credibility. Finally, in respect of too many matters in cross-examination, Dr Edelsten was content, all too readily, to say that he could not recall the matter inquired of, before having to, somewhat grudgingly, acknowledge its existence when taken to a specific email.
18 In summary, I found both Dr Edelsten and Ms da Silva to be unsatisfactory witnesses. Both were prepared to mislead me in respect of any matter that they thought they could get away with. Each was prepared to be truthful only if it did not otherwise embarrass them or harm their case. The one piece of evidence that could confidently be accepted from each of them is when each of them said that, in respect of certain matters, the other was being untruthful. That said, there was the occasional vignette of truth. Further, in fairness to Dr Edelsten and in the context of this case, it might be said that it was at least to his credit that he did not falsify any of the relevant documents.
….
40 In my view, it is necessary, so as not to prejudice the administration of justice, to make a non-publication order prohibiting the publication of any part of this proceeding that would disclose or further disclose the substance of the dealings to date between the second plaintiff and the defendant, including any emails, text messages or any other form of communication passing between them. However, I should say for the sake of completeness that such a non-publication order does not prevent the publication of this judgment.