Michael Wilson & Partners, Ltd v Emmott (No 2)

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FEDERAL COURT OF AUSTRALIA

Michael Wilson & Partners, Ltd v Emmott (No 2) [2025] FCA 1185

File number(s): NSD 1396 of 2024
Judgment of: MOORE J
Date of judgment: 24 September 2025
Catchwords: PRACTICE AND PROCEDURE – where interlocutory application filed to set aside previous interlocutory orders –no material change in circumstances demonstrated – where application to set aside does not grapple with the basis for making the original orders – where not in the interests of justice to set aside previous orders – application dismissed with costs    
Legislation:

Federal Court of Australia Act 1976 (Cth) s 23

Federal Court Rules2011 (Cth) r 1.34 and 4.01(2)
Cases cited:

Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005

Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 20
Date of last submission/s: 24 September 2025
Date of hearing: Determined on the papers
Solicitor for the Applicant: Mr M Wilson
Counsel for the Respondent: Mr J Baird
Solicitor for the Respondent: Duggan Legal

ORDERS

NSD 1396 of 2024
BETWEEN:

MICHAEL WILSON & PARTNERS, LTD

Applicant
AND:

JOHN FOSTER EMMOTT

Respondent

ORDER MADE BY:

MOORE J

DATE OF ORDER:

24 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The interlocutory application dated 5 September 2025 be dismissed, with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MOORE J:

  1. On 22 August 2025, I gave judgment and made orders in relation to the representation of the applicant (MWP) in these proceedings: Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 (my previous judgment). These reasons need to be read with my previous judgment. I ordered that:

    (a)the applicant shall as soon as possible, and in any event by 29 August 2025, retain a lawyer in Australia to be the lawyer on the record in these proceedings with an address in Australia at which documents can be served and emails received; and

    (b)the applicant not be permitted to take any further step in these proceedings after 29 August 2025 if the step required by Order 1 has not occurred,

    (the Orders).

  2. I gave a number of reasons for the Orders.

  3. MWP has not complied with Order 1. No lawyer in Australia has become the lawyer on the record. I am not aware of MWP taking any steps to appeal the orders, and correspondence received from MWP suggests that it has not.

  4. Instead, and contrary to Order 2, on 18 September 2025, MWP filed an interlocutory application dated 5 September 2025, together with two supporting affidavits of Mr Wilson. Some written submissions were later filed on 22 September 2025. The written submissions are not signed by any person, but purport to be from MWP.

  5. The interlocutory application seeks the following relief (reproduced from the application):

    (a)to rescind, set aside and/or vary the…

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Details
Case
[2025] FCA 1185
Decision Date

CaseChat Overview and Summary

Michael Wilson & Partners, Ltd (MWP) sought to set aside interlocutory orders made by the Court in August 2025. The orders required MWP to retain an Australian lawyer to represent it in the proceedings. MWP had failed to comply with these orders and instead filed an interlocutory application seeking to set them aside. The application also sought other relief, including that the Court recall and reopen a previous hearing and permit the applicant's representative to appear by video from Kazakhstan. The Court had to decide whether there was a material change in circumstances warranting the setting aside of the orders, and whether it was in the interests of justice to allow the representative to appear by video.

The Court found that MWP had not demonstrated any material change in circumstances since the original orders were made. It also found that the interlocutory application did not address the basis for making the original orders. The Court held that it was not in the interests of justice to set aside the previous orders, as MWP had failed to comply with them and had taken steps in breach of the orders. The Court declined to permit the representative to appear by video from Kazakhstan, given that proceedings are ordinarily conducted in person and there was no urgent matter warranting an exception. The interlocutory application was dismissed with costs.

The Court made an order dismissing the interlocutory application and awarding costs against MWP. The order was made pursuant to Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory application dated 5 September 2025 be dismissed, with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 22 August 2025, I gave judgment and made orders in relation to the representation of the applicant (MWP) in these proceedings: Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 (my previous judgment). These reasons need to be read with my previous judgment. I ordered that:(a)the applicant shall as soon as possible, and in any event by 29 August 2025, retain a lawyer in Australia to be the lawyer on the record in these proceedings with an address in Australia at which documents can be served and emails received; and(b)the applicant not be permitted to take any further step in these proceedings after 29 August 2025 if the step required by Order 1 has not occurred, (the Orders). I gave a number of reasons for the Orders. MWP has not complied with Order 1. No lawyer in Australia has become the lawyer on the record. I am not aware of MWP taking any steps to appeal the orders, and correspondence received from MWP suggests that it has not. Instead, and contrary to Order 2, on 18 September 2025, MWP filed an interlocutory application dated 5 September 2025, together with two supporting affidavits of Mr Wilson. Some written submissions were later filed on 22 September 2025. The written submissions are not signed by any person, but purport to be from MWP. The interlocutory application seeks the following relief (reproduced from the application):(a)to rescind, set aside and/or vary the order of Moore J of 20.08.25, the judgment of Moore J at [2025] FCA 1005 of 22.08.25, the further order of Moore J of 22.08.25, the determinations made therein with retrospective force and effect, in accordance with Rules 17.01(1), 39.05, and the inherent jurisdiction of the Court; (b)to recall, reconvene and reopen the hearing of 20.08.25; (c)to require the Respondent to file and serve an application, a draft of the order sought, evidence and submissions relied upon in seeking orders to require MWP to retain an Australian lawyer, for such lawyer to go on the record, with an address in Australia, in place of Mr Wilson as MWP’s Solicitor, Corporate Legal Representative, and its attorney; and (d)such further orders and directions as the Court sees fit. MWP also seeks that the hearing fixed for 25 September 2025 be converted into an oral hearing of MWP’s interlocutory application, and that Mr Wilson be permitted to appear on video from Kazakhstan for that purpose. In my previous judgment at [21], I indicated that online appearances would no longer be permitted: …unless there is some urgent matter pertaining to the conduct of the proceedings that arises in the meantime, henceforth, there will no longer be the provision of an audio visual link for appearances (as opposed to observation) at any hearings. As noted above, the filing of the interlocutory application, supporting affidavits and submissions are themselves the taking of steps in the proceedings in breach of Order 2 made on 22 August 2025. Nevertheless, given that MWP is seeking to impugn the making of that very order, I have decided that I will not prevent MWP from being heard and will consider MWP’s interlocutory application. However, I decline to permit Mr Wilson to appear from Kazakhstan on video for the purpose of making oral submissions, having regard to: (a) the matters set out in my previous judgment; (b) that the Court ordinarily conducts proceedings in person and is not obliged to permit practitioners to appear by audio visual link from other countries; and (c) that MWP has taken the opportunity to set out its position and make submissions in writing at some length. I have therefore determined the interlocutory application on the basis of the written materials.

Ratio Decidendi

Legal Principle Established

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