Michael Wilson & Partners Ltd v Emmott (No 3)

Michael Wilson & Partners Ltd (the applicant) sought leave to appeal a decision of Hammerschlag CJ in Eq, and Emmott (the respondent) applied for security for costs. The applicant had also issued a notice to produce documents to the respondent, which the respondent sought to set aside. The dispute concerned the respondent's application for security for costs, the applicant's attempts to obtain documents to resist that application, and the applicant's subsequent application for leave to appeal.

The court was required to determine whether the applicant, a corporate entity, was unable to pay the respondent's costs if the applicant were unsuccessful. It also had to consider the strength of the applicant's case for leave to appeal, and whether to grant a stay of proceedings until security for costs was paid. Further, the court needed to decide whether to set aside the applicant's notice to produce documents, and whether to order the applicant to provide security for the respondent's costs of the application for leave to appeal.

Basten AJA reasoned that the documents sought by the applicant in its notice to produce were not relevant to the determination of the security for costs application, as their production would likely lead to "satellite litigation." The court found that the respondent's application for security for costs was well-founded, and ordered the applicant to pay $A221,200 into court as security for the respondent's costs of the primary proceedings, with a stay of payment pending the determination of the application for leave to appeal and the appeal itself. Additionally, the applicant was ordered to provide security for the respondent's costs of the application for leave to appeal in the amount of $A15,000, and to pay the respondent's costs of the motions. Proceedings were stayed until this further security was paid.