Michael Wilson & Partners Ltd v Emmott (No 5)

[2025] NSWCA 206

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Michael Wilson & Partners Ltd v Emmott (No 5) [2025] NSWCA 206

Hearing dates:

On the papers

Decision date:

09 September 2025

Before:

Leeming JA; Mitchelmore JA; Free JA

Decision:

In proceeding 2024/416114 (the review of orders made by McHugh JA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000.

6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

In proceeding 2024/449432 (the review of orders made by Basten AJA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000.

6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

Catchwords:

OCCUPATIONS — legal practitioner directed to show cause why judgment should not be referred to Legal Services Commissioner — submissions supplied confirm appropriateness of referral

COSTS — indemnity costs — gross sum costs order — costs of applications for security for costs — significance of proportionality — whether third party order against solicitor should be made — significance of referral of solicitor to Legal Services Commissioner to exercise of jurisdiction

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 14, 56, 60, 98, 99

Electronic Transactions Act 2000 (NSW) s 8

Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 76

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.2

Supreme Court Act 1970 (NSW) s 37

Uniform Civil Procedure Rules 2005 (NSW) rr 3.7, 42.7

Cases Cited:

Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159

Hamod v State of New South Wales [2011] NSWCA 375

Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244

Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152

Salmon v Albarran (No 2) [2025] NSWCA 115

Wormald v Maradaca Pty Ltd [2021] NSWCA 307

Category:

Costs

Parties:

Michael Wilson & Partners Ltd (Applicant on notices of motion filed 28 March, 30 April, 2 June and 2 June 2025; respondent to notice of motion filed 1 August 2025)
John Forster Emmott (Applicant on notice of motion filed 1 August 2025, otherwise respondent to various notices of motion)
Michael Earl Wilson (showing cause, and subject of application for third party costs order)

Representation:

Counsel:
J Baird (Mr Emmott)
M Wilson, solicitor (Michael Wilson & Partners Ltd, and for himself)

Solicitors:
Duggan Legal (Mr Emmott)

File Number(s):

2024/416114; 2024/449432

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Court of Appeal

Citation:

[2025] NSWCA 37; [2025] NSWCA 74

Date of Decision:

14 March 2025; 15 April 2025

Before:

McHugh JA; Basten AJA

File Number(s):

2024/416114; 2024/449432

JUDGMENT

1. THE COURT: On Friday 11 July 2025, this Court dismissed two applications for leave to appeal brought from orders made by McHugh JA and Basten AJA that Michael Wilson & Partners Ltd (MWP) provide security for costs of its appeals on applications for leave to appeal from decisions in separate proceedings in the Common Law Division and Equity Division of this Court: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152. This Court also made orders on two other topics.

1. The first (by order 2) permitted the successful respondent, Mr John Forster Emmott, to make any application for a special costs order “by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages”.

2. The second (by orders 3, 4 and 5) permitted a barrister, Mr Richard Thomas, whose name was contained on a supplementary submission filed by MWP, to be heard, if he wished, and (by order 6) permitted Mr Michael Earl Wilson, a solicitor, with an entitlement to practise in New South Wales, to be heard why the judgment and the papers should not be referred to the Legal Services Commissioner.

2. These reasons address those two topics. The more important is whether Mr Wilson should be referred to the New South Wales Legal Services Commissioner. It is addressed first, although, as will be seen, the two overlap.

Should Mr Wilson be referred to the Legal Services Commissioner?

3. Orders 5 and 6 made by this Court on 11 July 2025 were as follows:

5. Direct Mr Richard Thomas, if he so chooses, to provide by email to the Associate to Justice Leeming, copied to the legal representatives of the parties, within seven days an account of his involvement, if any, in the preparation of submissions filed on 27 June 2025 bearing his name, and in particular his awareness of the transcript of the hearing before McHugh JA on 10 March 2025 and the submissions filed on behalf of Mr Emmott on 24 June 2025 which contended that “Mr Wilson expressly abjured any recusal application”. Should Mr Thomas choose not to supply such an account, he should advise that fact by email to the Associate to Justice Leeming copied to the legal representatives of the parties within seven days of today.

6. Mr Wilson to have 14 days from today to file and serve any submissions or evidence showing cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.

4. Mr Thomas supplied four emails to the Associate to Justice Leeming on 11 July 2025. They were copied to Mr Emmott’s counsel (Mr Baird). On 16 July, Mr Thomas wrote again saying that he purported to recall the email. When asked to clarify, he said that all his emails should be recalled. On 17 July, Mr Wilson wrote saying that Mr Thomas’ email must be deleted and disregarded in its entirety. We have treated that request as applying to all of Mr Thomas’ emails.

5. It is not necessary to rely on the emails in order to resolve any issue which is before the Court, and we have not done so.

6. Mr Wilson’s email also asserts that the contents of Mr Thomas’ email “were and are inaccurate and wrong”, and adds that the transcript of the hearing on 10 March 2025 and Mr Baird’s submissions were provided immediately upon receipt to Mr Thomas, and “[t]he insinuations to the contrary in the Judgment simply have no basis”. Mr Wilson in his affidavit states, after repeating the gravamen of this, that:

The insinuations and suggestions to the contrary in the Judgment and the Order are entirely baseless, without any foundation whatsoever, and must be withdrawn and sincerely apologised for.

7. Reasons for judgment should, ideally, be self-contained, especially when as here they concern a matter of importance, namely, whether there should be an investigation into whether Mr Wilson should continue to act as a solicitor. For that reason, Annexure “A” to these reasons contains paragraphs [49]-[83] of our earlier judgment, which is confined to the first ground of review of the decision made by McHugh JA. This ground was that McHugh JA should have recused himself.

8. By way of summary, this ground was advanced without the transcript. It was not mentioned by Mr Wilson during his submissions until the end of the day. At that stage it became clear that it was necessary to obtain the transcript, because Mr Baird (who had been there) said that he recalled Mr Wilson not pressing the application, while Mr Wilson said that was not his recollection. The transcript demonstrated that Mr Baird’s recollection was correct, and that Mr Wilson, after obtaining at his request a short adjournment, confirmed that “I don’t have an application to make, your Honour”. That was consistent with there being no order refusing an application for recusal, and no reasons by McHugh JA for his continuing to hear the case. But it is inconsistent with MWP advancing as a basis for review in this Court that McHugh JA should have recused himself from hearing the application for security for costs.

9. When MWP supplied submissions, the position was as stated at [60]:

MWP’s submissions were not filed until 10.51pm on Friday 27 June 2025. They did not address what had been said on behalf of Mr Emmott. They did not refer to the transcript which had been supplied to Mr Wilson earlier that week. They did not refer to the disclosures by McHugh JA, the adjournment, or Mr Wilson’s statement after that adjournment that he had no application to make. They simply reiterated that McHugh JA should have recused himself.

10. The submissions were not signed, but Mr Thomas’ name was on them, as well as that of MWP. Mr Thomas had not previously, so far as the Court was aware, participated in the application for security for costs or the review of McHugh JA’s order. The reasons concluded at [62]:

It is difficult to see how this has come about. Mr Thomas is a barrister who has previously appeared for MWP in litigation in this Court, years ago, including in Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315. However, so far as the Court is aware, he did not appear in the present applications for review. He was not physically present in Court on 20 June, and there is no reason to think that he attended via an AVL link.

11. That was the context in which the Court said the following (at [63]-[67] of its earlier judgment) before making orders that Mr Wilson show cause:

Consideration

63 The point of the grant of leave to supply further submissions was to address the issue that had arisen at the end of the hearing, concerning whether a recusal application had been made by Mr Wilson. The precise role played by Mr Thomas in those submissions (if any) is not clear, and the Court’s directions will provide an opportunity to him to explain his involvement. However, it is difficult to see how those submissions could have been filed in the form they took by anyone who had been briefed with an explanation of the reason for the grant of leave to supply further submissions, or the transcript of what had occurred before McHugh JA, or with Mr Emmott’s succinct submissions based on that transcript.

64 Putting to one side the position of the counsel named on the document (to which we shall return), there is no reason to doubt that Mr Wilson acting on behalf of MWP was personally aware of the document filed late in the evening (Australia time) on the Friday, bearing the name “Michael Wilson & Partners, Ltd” and his initials.

65 In the face of what occurred on 10 March 2025 and what was said of it in Mr Emmott’s submissions of 24 June 2025, the course taken in MWP’s submissions is inexplicable. The complaint before us that McHugh JA should have recused himself was demonstrably baseless, given what had in fact occurred before his Honour. It was also clear that the complaint could not sensibly be maintained after the transcript of what occurred at the hearing was made available. Mr Wilson acknowledged that it was a very serious allegation. Yet despite not making any recusal application at the hearing before McHugh JA, he raised it as a ground of review before this Court and then maintained it despite the transcript having been provided to MWP, and despite Mr Emmott’s submissions. The precise role played by Mr Thomas is not clear, but it is clear that Mr Wilson was at all times, including when the supplementary submissions were filed, the solicitor on the record for MWP.

66 This is not the only respect in which Mr Wilson’s conduct of these applications as a solicitor has been unsatisfactory and concerning. Forty-six separate grounds of review are advanced in relation to two decisions to order a British Virgin Islands company to provide modest amounts of security for costs, with the prolixity of the grounds serving only to conceal how repetitive they are. That ten affidavits were read in support of the applications in this Court was also utterly disproportionate to what is involved. Parts of those affidavits were and are hotly in issue, including the strength of the underlying appeals and whether “MWP has significant assets in the jurisdiction”. Although Mr Wilson claimed to be familiar with the prohibition upon a legal practitioner being simultaneously a witness and an advocate, his conduct of the present applications on behalf of MWP demonstrated at best that he did not understand the rule and at worst that he flagrantly breached it, because much of his evidence is contested. Mr Wilson also has no understanding of the obligation only to provide submissions to judicial staff after judgment has been reserved in accordance with leave. Annexed to these reasons are the submissions supplied by Mr Wilson after judgment was reserved which fall outside the leave granted.

67 There are occasions when this Court must consider taking the serious step of referring papers to the professional regulator, lest legal practitioners cause harm to their own clients, to other litigants, to the courts, and to public confidence in the legal profession. We would not take that step lightly, nor would we do so without first permitting Mr Wilson to be heard in relation to that course. This Court’s directions will permit Mr Wilson to be heard as to why this Court should not refer his conduct in this matter to the Legal Services Commissioner. They will also entitle Mr Thomas to explain what role he had, if any, in the preparation of the submissions. To be clear about one thing, although the submissions filed on 27 June 2025 fall well short of what is expected of a competent legal practitioner with an appreciation of the circumstances, nothing in these reasons expresses or should be read as expressing any view about Mr Thomas, because it is unclear what his involvement was (if any) and what he was asked to assume.

12. Pausing there, we return to Mr Wilson’s complaint about “the insinuations and suggestions” in the judgment. We take this to be a reference to what was stated in [67] about Mr Thomas not having the role ordinarily expected of counsel, namely, to settle and sign submissions, and leaving open the possibility that he played no role in them. In light of what is now known, we accept that Mr Thomas played a role in drafting the submissions. We note that Mr Wilson’s affidavit does not explain why the submissions were unsigned. Nor does it assert that they were supplied to the Court in the form supplied by Mr Thomas. Most importantly, it contains no account of why the submissions fail to attend to Mr Wilson’s statement following an adjournment that he was not pressing his application.

13. There is an obvious difficulty in Mr Wilson positively asserting (on behalf of MWP) what occurred between him and Mr Thomas, and simultaneously stressing (again on behalf of MWP) that the communications were privileged and this Court must disregard them. It is likely that there has been a waiver, bearing in mind that inconsistency between the conduct of the client and maintenance of confidentiality of communications between client and lawyer may effect a waiver: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]. However, it is not necessary to reach a conclusion on this issue, which we mention only so as to confirm that we have not overlooked Mr Wilson’s demand that the “insinuations and suggestions” be withdrawn. There is no occasion to do so.

14. Paragraphs 27-33 of Mr Wilson’s affidavits (identical affidavits in each proceeding were filed by him) are as follows:

Paragraph 6 of the Orders: No Referral

27. There is no basis whatsoever for the Judgment, and the papers in this Court, to be referred to the Legal Services Commissioner.

28. As explained above and in MWP’s prior evidence and submissions, as the record now shows and proves, the Respondent has misled this Court, as well as the Court below throughout, because the truth of the matter is that for decades he has been and is a judgment debtor and debtor of MWP in all jurisdictions, who owes MWP tens of millions of dollars, and all monies are and always were payable only to MWP, including qua Sinclair, as a result of the Funding Deeds, the Deeds of Novation, the Vesting Letter and the Notice of Demand and related documents, as HHJ Pelling KC has found in the EWHC on 17.06.22 and 26.08.22, as upheld by Popplewell LJ in the EWCA on 29.11.22, and which became Australian judgments on 02.02.24.

29. Without waiving privilege and MWP’s rights of confidentiality, which are expressly reserved and preserved, MWP instructed Mr R. Thomas of counsel, in good time, provided him with all necessary documents and correspondence, as well as detailed instructions, as a result of which Mr R. Thomas of counsel primarily drafted the Recusal Submissions, which were then put in the proper form, agreed, settled between MWP and Mr R. Thomas of counsel in the usual way, and then filed by the NSW Online Registry, approved, stamped and sealed on 27.06.25, and then served on the Respondent in the usual way.

30. MWP ordered transcripts of the hearings of 10.03.25 and 14.03.25 before McHugh JA and 19.03.25, 31.03.25, 14.04.25 and 15.04.25 before Basten AJA, and diligently followed up to obtain the same, but most regrettably and unfortunately, by the time of the hearing on 20.06.25 before this Court, all such transcripts had still not been received, through no fault of MWP. Insofar as MWP is aware, the Respondent made no effort to apply or to obtain any transcripts. On 23.06.25, this Court finally provided MWP with a copy of the transcript of the hearing before McHugh JA on 10.03.25, but not the second transcript referred to in the transcript of 10.03.25, and not that of the hearing of 14.03.25. the Court also did not provide transcript before Basten JA of 19.03.25, 31.03.25, 14.04.25 and 15.04.25, and the same are still awaited by MWP from the transcribers. Transcripts often take much time, even in Australia. Of course, without the benefit of transcripts, it is difficult to precisely remember the events that occurred and what was said or not.

31. With respect to the Court, it is not correct as a matter of law and fact, as set out in MWP’s evidence, the Submissions and, especially, the Recusal Submissions and as is clear from the Transcript of 10.03.25 that MWP could be regarded as or having ever waived its rights as to the recusal of McHugh JA, as the Respondent’s counsel submitted, and as the Court purports to find in the Judgment, when the law and facts are properly known, understood and applied.

32. McHugh JA was duty bound in law to recuse himself, the matter should never have been listed before him, and McHugh JA should have never appeared on the bench, given his duties, liabilities and obligations and judicial oath, including for the reasons advocated by Flaux J in the EWHC, now the Lord Chancellor, and as also did Hamblen J, now Lord Justice Hamblen in the UKSC, in far less circumstances. Instead, McHugh JA wrongly determined he could proceed regardless of his very clear conflicts of interest, firstly at home in discussions over the kitchen table with his wife, second when first appearing on the Bench announcing his decision, and then by rejecting and dismissing and refusing to properly analyse, understand, entertain and consider all of the points, concerns and arguments MWP raised, as can be seen from the Transcript quoted in paragraph 66 on pages 28-32 of the Judgment. As will be seen, MWP raised points of concern, McHugh JA turned to the Respondent’s counsel to support his already made and pre-determined decision, from which he simply would not be swayed, whatever MWP said. MWP very clearly pointed out that it was not correct the proceedings did not have anything to do with the present case, that instead such were part of and a continuation of the same, that the Respondent was bound, concerns as to McHugh JA’s wife, that MWP was left with very serious concerns as well as unease, that in effect all proceedings were part of one whole and not separate, that MWP had been wrongly injuncted and wrongly stayed, that it was not a case of demand and distant litigation. After all of that, and MWP being faced with in effect a fait-accompli by McHugh JA who had clearly already formed a view, and would not be swayed, merely saying it did not, at that moment in time, in light of all that had gone before, having been taken entirely by surprise and without all documents, information and facts available to before it, and without adequate time, including to draft, file and serve a motion/application and with evidence in support, clearly does not and cannot possibly be argued to be and construed as an alleged waiver, as the record shows and proves and when the law is properly understood and applied to the facts. With respect, the conclusion at [57] of the Judgment is wrong in law and in fact.

33. Accordingly, in light of all of the above, this Court should be aware that MWP will exercise its of appeal to the High Court of Australia, and fully reserves its rights and in all respects. MWP previously succeeded in overturning an earlier erroneous judgment of Justices of Appeal Basten, Young and Lindgren at [2010] NSWCA 222 of 15.09.10, as can be seen from the Judgments and orders of French CJ and Heydon J in the HCA of 01.02.11, and also of Gummow ACJ, Hayne, Heyden [sic], Crennan and Bell JJ in the HCA of 01.12.11 at [2011] HCA 48, all with costs in favour of MWP, and where Basten, Young and Lindgren in this Court which unnecessarily caused so much delay and much loss and damage to MWP from 2010 onwards, and none of which should ever have occurred, as the record now shows and proves.

15. The issue is whether Mr Wilson, who made a groundless application to review an order made by McHugh JA on the basis of apprehended bias, and continued to press that application after being reminded of its seriousness, after being supplied with the transcript, and after being served with the respondent’s submissions pointing out that the application before McHugh JA had not been pressed, should be referred to the Legal Services Commissioner. We would take that course only if there were a real concern that he should not be permitted to act for clients, and only after giving him an opportunity to explain why that course should not be taken.

16. We have reproduced verbatim Mr Wilson’s submissions on that issue, as a matter of transparency and because it is difficult to summarise them. It will be seen that those paragraphs are not directed to Mr Wilson’s conduct or whether he should be referred. They maintain that others (notably, Mr Emmott and McHugh JA) have not behaved as they should have. They disclose no insight into the point which led to referral being raised in the first place, namely, his complaint that McHugh JA had refused to disqualify himself when no such application had been made to him.

17. In the passage of his affidavit directed to why there should be no referral, Mr Wilson merely renews his application, aspects of which seem to be pitched at the level of actual bias against McHugh JA (through the words “who had clearly already formed a view” and “would not be swayed”). The affidavit also includes a statement that the Court should be aware that MWP will exercise its right of appeal, which it has previously done with success. Whether or not MWP or Mr Wilson exercises such rights as it and he has to seek special leave to appeal does not alter this Court’s obligation to take steps directed to protecting the public.

18. Nowhere in Mr Wilson’s affidavit is mention made of the fact that he withdrew the application before McHugh JA.

19. The closest Mr Wilson comes to an explanation is a statement that he was “taken entirely by surprise” and “without all documents, information and facts available to [sic] before it, and without adequate time, including to draft, file and serve a motion/application and with evidence in support”. But the difficulty with that statement is that: (a) at the time, Mr Wilson sought and obtained an adjournment; (b) Mr Wilson made no application or gave any indication he was unable to deal with the information McHugh JA had told him; and (c) all of this is well removed from the critical matter, which is why an application to review on the basis of apprehended bias was made and pressed and continues to be pressed in this Court, even after it has been indicated that it is untenable.

20. In short, there is no explanation of why this Court has been asked to review a decision of a Judge of Appeal on the basis that he should have recused himself, when the applicant made no such application. It is, for example, not said that Mr Wilson forgot that he had abandoned his application, or that Mr Wilson relied entirely on counsel to make the decision even after he had received the transcript and Mr Baird’s submissions to press this ground of review.

21. The other aspects of Mr Wilson’s affidavit need only be summarised, because they are not to the point.

22. Paragraphs 1-7 are introductory.

23. Paragraphs 8-17 are directed to the proposition that “The Respondent has misled this Court and the Court below throughout”. Those paragraphs elaborate how it is said that Mr Emmott “has been for decades and is a judgment debtor and debtor of MWP in all jurisdictions, and all monies are and always were payable only to MWP, including qua Sinclair”. None of this is responsive to the issue raised by order 6. Mr Wilson has also included an affidavit made by Mr Emmott filed on 10 June 2025 in the Common Law Division, and a witness statement made by Mr Emmott in the High Court of Justice (proceeding CL-2025-000150) dated 13 July 2025. It is unclear whether either has been read and, if not, whether it was open to Mr Wilson, in his personal capacity, to supply them to this Court in response to order 6, but that will be a matter for the professional regulator to investigate if seen fit.

24. Paragraph 11 also complains that “Contrary to what is stated in the Judgment, as can be seen from the Tender Bundles and MWP’s evidence, all necessary documents were, indeed, before this Court”. No references are given. That does not falsify [32] of the reasons, which stated that “despite the volume of the material tendered by MWP in the hearing in this Court, it appeared that the material which had been before Schmidt AJ and Hammerschlag CJ in Eq was not all before us”. Nor does it falsify [43(9)] of the reasons, which stated that the medical evidence which had been before Basten AJA was not before the Court and so it was impossible to determine whether his Honour had been wrong to find that it was “repetitive, unfocused and hard to assess”, which had been asserted by paragraph 8(k) of the motion filed on 30 April 2025 and elaborated in paragraphs 30-32 of Mr Wilson’s affidavit of 19 May 2025, being paragraphs which were advanced by way of submission but without the underlying documents.

25. Paragraph 15 asserts that “[20] of the Judgment is clearly in error”, and paragraph 16 states that “It is no longer a question of whether or not the Declaration will be granted, as MWP’s Part 8 Claim and Application has already succeeded, and costs will follow the event”. This is not within the scope of the leave. Moreover, we decline to express a view on the outcome of litigation in a foreign court, noting that before doing so we would wish to be assured that it was open to Mr Wilson to rely upon materials very recently filed by Mr Emmott and possibly not read. In any event, and as will be seen below, Mr Wilson’s subsequent affidavit confirms that the hearing before Pelling J did not resolve the issues between the parties in the way which Mr Wilson had predicted.

26. Paragraphs 18-19 assert that “MWP is the clear overall Winner”. This is not relevant to whether the public interest is served by referring the papers to the Legal Services Commissioner, and is outside the scope of the grant of leave. Similarly, paragraphs 34-40, which deal with the bankruptcy of Mr Emmott and his alleged contempt of a foreign court, are outside the scope of the grant of leave. Paragraphs 20-26 address Mr Thomas and waiver of privilege.

27. Mr Wilson’s affidavit concludes with an informal application that:

the Hearing must be re-convened and re-opened, and the Judgment rescinded, set aside and varied as the Respondent has clearly, cynically and deliberately misled this Court and the Court below, and indeed all courts in Australia, and is and has been committing a litigation fraud, following from and on top of the Emmott frauds on MWP from 2001 to 2005 and the Temujin Partnership fraud from early 09.05 to date, as well as his theft, destruction and diversion as already proven by MWP and of which there is no doubt.

28. Treating the affidavit as an application to reopen, we reject it. Nothing has been put forward to show that there was any error in the orders for security made by McHugh JA and Basten AJA. Had error been shown, nothing has been put forward to dissuade us from the position that we would re-exercise the discretion and order security in no lesser amounts, bearing in mind everything we have seen about the manner in which Mr Wilson and MWP conduct litigation.

29. The affidavit has served the useful purpose of confirming to our minds that the papers and this Court’s judgments should be referred to the Legal Services Commissioner, to investigate whether Mr Michael Earl Wilson should continue to be permitted to act as a legal practitioner in this jurisdiction.

30. The foregoing is sufficient to warrant a referral to the Legal Services Commissioner. What follows confirms the appropriateness of that course.

Mr Emmott’s applications for special costs orders

31. Order 2 made on Friday 11 July 2025 entitled Mr Emmott to apply for any special costs orders sought by him “by notice of motion filed and served within 21 days of today, together with any material in support including submissions not exceeding five pages”. That order reflected what had been presaged in an earlier letter of 24 April 2025, in his written submissions, and orally at the conclusion of the hearing, where there had been the following exchange:

LEEMING JA: … Mr Baird you have a special application concerning costs.

BAIRD: There is.

LEEMING JA: I’m conscious of that, we can’t deal with that--

BAIRD: Precisely.

LEEMING JA: --in this motion and because it amounts to a special costs order against Mr Wilson personally, he and his client need to take steps, he may need separate representation or his client may not have a difficulty with that but we have to do this sequentially I think--

BAIRD: I accept that, I was about--

LEEMING JA: --but I’m conscious of that.

BAIRD: --to say exactly the same thing. I have attached to my submissions I’ll separately forward to your Honours the short minutes of order that are sought in the event that the review application is dismissed.

32. Mr Wilson was appearing for MWP at that hearing, and was present by audio-visual link. There is no doubt that he had received Mr Emmott’s submissions, which had concluded with a submission that the motion should be “dismissed with costs on the indemnity basis, such to be payable personally by the solicitor for the applicant in an amount fixed by the Court”. Nor is there any doubt that Mr Wilson heard and understood the gravamen of the application flagged on behalf of Mr Emmott. The transcript continued:

LEEMING JA: And it’s helpful because it does mean that Mr Wilson is on notice now of the nature of the order and the precise order that you seek. Mr Wilson thank you, Mr Baird thank you - sorry, yes Mr Wilson.

WILSON: Justice [Leeming], the position procedurally is Mr Baird has no application against me personally, there is no motion--

LEEMING JA: No.

WILSON: --there’s just a passing comment in submission.

LEEMING JA: There’s notice of an intention that in the event that the third and fourth motions fail as the first and second already have then this is one of those unusual cases where the advocate should be the subject of a personal costs order, you’re on notice of that and you have been from the time you received Mr Baird’s submissions. That’s precisely the position, I think, is that right?

WILSON: But there’s no motion, there’s no affidavit or evidence in support--

LEEMING JA: And there’s going to be no determination of it at this stage.

WILSON: Yes, there is no application and of course I’m not a director or shareholder of MWP.

33. Despite the exchange in Court on 20 June 2025, the order made on 11 July 2025 has given rise to an inordinate amount of disputation. What occurred is as follows.

The events of 1 and 2 August 2025

34. Six things happened in quick succession on the afternoon of Friday 1 August 2025 and the following Saturday.

35. First, Mr Emmott filed notices of motion in each proceeding, and a supporting affidavit of his solicitor, Mr Duggan. The Court’s records confirm that this was done electronically, at 3:16pm on Friday 1 August 2025. The motions were materially identical. In the application to review the security ordered by McHugh JA, the orders sought were:

1. An order that the Applicant pay the Respondent’s costs of the Applicant’s Notice of Motion filed 28 March 2025 pursuant to Order 1 of the Orders made on 11 July 2025 on the indemnity basis.

2. An order that the amount of the Respondent’s costs pursuant to Order 1 above be assessed on the gross sum basis in the sum of $21,241.04 or such other amount as this Honourable Court may determine.

3. An order that the amount of the Respondent’s costs of the Applicant’s Notice of Motion filed 18 February 2025 pursuant to Order 4 of the Court’s Orders made 14 March 2025 be assessed on the gross sum basis in the sum of $16,755.04 or such other amount as this Honourable Court may determine.

4. An order that the Applicant pay the amounts referred to in Orders 2 and 3 above without deduction or set off to the solicitors for the Respondent within 14 days of the date of this Order.

5. An order that Michael Earl Wilson, the solicitor for the Applicant, personally pay the amounts ordered in Orders 2 and 3 above without deduction or set off to the solicitors for the Respondent within 14 days of the date of this Order.

6. In the event of failure to comply with Orders 4 and 5 above, an order that the Summons for Leave to Appeal filed 20 January 2025 forthwith be and stand dismissed, with costs.

7. Costs.

8. Such further or other order as to this Honourable Court may seem fit.

36. The motion filed in the proceeding to review the security for costs ordered by Basten AJA took substantially the same form, although the gross sum costs sought in orders 2 and 3 were $12,311.36 and $16,049.72 respectively and the dates in order 3 were different. Orders 1, 4, 5, 7 and 8 were materially identical save as to the dates the orders were made. Order 6 was differently worded but to the same effect.

37. Reading both motions together, what Mr Emmott sought was:

1. a gross sum costs order for both applications for review of the orders for security for costs, calculated on the indemnity basis, in the amount of $21,241.04 + $12,311.36 = $33,552.40;

2. gross sum costs orders in respect of the costs orders made by each of McHugh JA and Basten JA in the amounts of $16,755.04 and $16,049.72 respectively;

3. orders that the amounts be paid within 14 days without deduction or set-off, by each of MWP and Mr Wilson personally;

4. orders that in default of payment, the pending proceedings in this Court be dismissed.

38. The same affidavit sworn by Mr Duggan on 1 August 2025, of 21 pages plus an exhibit of 71 pages, was filed in each proceeding. It mostly concerned the work done in each proceeding and the costs claimed. We shall return to this below.

39. At all times, Mr Wilson has been able to access the file on JusticeLink (the Court’s electronic filing system) and see the documents which have been filed electronically, including precisely when that occurred. In light of the correspondence which ensued, it is desirable to reproduce the coversheet generated by JusticeLink (which is available to the parties’ solicitors) when Mr Emmott’s motion in the proceeding reviewing the security ordered by McHugh JA (2024/00416114) was filed:

40. A similar document was produced in the proceeding (2024/00449432) reviewing the security ordered by Basten AJA. Both documents indicate the time of electronic filing (at the top) and the documents filed (under the heading “Attachment Details”).

41. Secondly, Mr Emmott’s solicitor, Mr Duggan, emailed the filed version of the notice of motion and affidavit, and an unfiled copy of the submissions documents, to the Associate to Justice Leeming, copying in Mr Baird and three email addresses nominated by MWP, being [email protected], [email protected] and [email protected]. That email was sent at 4:49pm on Friday 1 August 2025. The first of those emails is regularly used by Mr Wilson.

42. The submissions constitute a coversheet and 5 pages signed by Mr Baird. They are straightforward. Paragraphs 1-3 are introductory. Paragraphs 4-13 summarise the principles applicable to indemnity costs orders and gross sum costs orders. Paragraphs 14-17 summarise the evidence of Mr Duggan. Paragraphs 18-21 contend that gross sum costs orders should be made, because (i) the amount claimed is relatively small, (ii) the hourly rates charged are substantially within the guidelines published by the Costs Assessment Rules Committee, and (iii) the costs of assessment are likely to be disproportionate to the costs in issue, having regard to the conduct of the proceedings to date.

43. Paragraphs 22-37 seek to explain why a personal costs order should be made against Mr Wilson. It is not necessary to summarise these submissions.

44. Thirdly, Justice Leeming’s (then) Tipstaff sent the following response to all addressees on Mr Duggan’s email at 5:01pm:

Dear practitioners,

I refer to order 2 made on 11 July 2025, the notices of motion filed by Mr Emmott seeking special costs orders earlier today and the supporting affidavit, and the respondent’s submissions on costs applications filed today. Each of Michael Wilson & Partners Ltd and Mr Wilson have 14 days to file and serve any material and submissions in opposition to the orders sought. The Court will thereafter deal with the application on the papers.

Please direct all future emails in this matter to my email address – today is [the outgoing Associate’s] last day.

45. Fourthly, Mr Wilson responded to all addressees at 5:28pm:

Nothing has been filed or served on MWP at all and the deadline has expired

Emmott is a proven judgment debtor and debtor of MWP and never had any basis in fact or law to seek SFC and has lied to and misled this Court and the Court below as the record shows and proves with knowingly false evidence and false submissions throughout

MWP fully reserves its rights in all respects and is appealing to the HCA

Yours faithfully

46. Fifthly, at 6:10pm that Friday, Mr Duggan responded to Mr Wilson’s email, copying in all addressees:

Dear Tipstaff,

We refer to Mr Wilson’s email below.

Attached are copies of two emails, one in each of the proceedings, which we transmitted to Mr Wilson at 4.49pm today, just before our email to the Court.

Copies of the notices of motion, the affidavit and exhibit, and the submissions were attached to the emails.

We note also that Mr Wilson was copied in on our email to the Court.

47. Mr Duggan’s email attached emails he had sent to the same three email addresses in Kazakhstan, which themselves attached filed versions of the notice of motion and affidavit, and an unfiled written submission.    

48. Sixthly, Mr Wilson sent a further email in this chain to Justice Leeming’s (new) Associate at 11:28am on Saturday 2 August 2025, copying in Mr Duggan and the other two Kazakhstan addressees:

Dear Associate,

In order to comply with Order 2 of 110725, the Judgment Debtor and Debtor of MWP in all jurisdictions had to file and serve any Notice of Motion, evidence, material and submissions in support within 21-days and, thus, before the close of business AEST on 010825. The Judgment Debtor and Debtor of MWP has failed to do so, accordingly, he is out of time, and therefore has no right to make and pursue any such application.

In any event, as we have noted and explained in our evidence (including MEW-6) and as the record unequivocally shows and proves the Judgment Debtor and Debtor of MWP in all jurisdictions has cynically and deliberately misled the Court below and this Court throughout, because he has long had nothing left and long been owed no monies by MWP as Messrs Baird and Duggan also always knew, but instead is a judgment debtor and debtor of MWP in all jurisdictions, in enormous sums, including given MWP’s rights qua Sinclair. The NSWCA itself held (and which is and has always been directly on point and applicable the Judgment Debtor and Debtor of MWP in all jurisdictions): “A party that is a judgment debtor of another has no standing in equity to insist that the other provide security for costs.” Indeed, the law in Australia is clear, such a proven and established Judgment Debtor and Debtor of MWP in all jurisdictions, including qua Sinclair has no right to even apply for, let alone seek to obtain and maintain SFC and such is unlawful, an abuse of process and a collateral attack and prevented by equity, for example see: [2012] FCAFC 57, [2022] FCA 885, [2022] FCA 1371, [2002] FCA 496 and [2025] FCA 469, by way of example only.

Therefore the Motions of the Judgment Debtor and Debtor of MWP could never have been properly filed and the relief sought in the Court below, and SFC sought, and the Judgment Debtor had no proper basis to resist and oppose MWP’s Motions, and filed and served false evidence and made false oral and written submissions in support, leading to the Judgment of 110726, which is wrong in law and fact and which we shall appeal to the HCA.

The Judgment Debtor and Debtor of MWP, and Messrs Baird and Duggan are obliged to file and serve corrective evidence and submissions, as well as to retract and apologise for all that has gone before.

49. We shall return to the legal effect of the emails when dealing with Mr Wilson’s submissions concerning service. For present purposes, it suffices to note two things:

1. First, even if in fact Mr Wilson had not received any of the attachments to either of the two emails sent by Mr Duggan (being (1) the email to him in advance of that sent to Justice Leeming’s Associate, (2) the email sent at 4:49pm to Justice Leeming’s Associate into which the three Kazakhstan email addresses were copied), he demonstrably knew that the Court had received the notice of motion and affidavit and submissions, and had considered them sufficiently to make directions for a timetable for any response. Mr Wilson knew this because his email of 5:28pm on the Friday responded to the email containing those directions.

2. Secondly, Mr Wilson knew that Mr Duggan was claiming that the notice of motion had been filed. It was at all times open to Mr Wilson or anyone else from MWP who was registered with the Court’s electronic system to check JusticeLink to see what had been filed electronically.

The emails of Monday and Tuesday 4 and 5 August 2025

50. Mr Duggan received a notification from the Court on Monday 4 August, advising him that the motions were listed before the Court on 11 August at 9am. He wrote, copying in Mr Wilson, to the Registrar advising of the email from Justice Leeming’s Tipstaff that the motions would be dealt with on the papers. The Registrar responded later that day advising that the listings had been vacated and the motions would be dealt with on the papers.

51. Mr Duggan also filed a further affidavit, which did nothing more than to state that subsequently to his affidavit sworn on 1 August 2025, he had received five emails from Mr Wilson. Four of the five were emails between the parties which did not include the Court, and the fifth was Mr Wilson’s email to Justice Leeming’s Associate at 11:28am on Saturday 2 August mentioned above. The emails are important, and are reproduced as Annexure ‘B’ to these reasons. They accuse Mr Duggan and Mr Baird of serious misconduct, doing so in intemperate terms. The emails include the following:

1. “you, Baird and your client have consistently lied to and misled the Court below, and also the NSWCA”;

2. “Like Robinson before you, it seems clear that after your retirement from private practice, you prefer to conduct litigation as a hobby working from your kitchen table at home, rather than doing crossword puzzles and enjoying life, long after work and reaching the normal current retirement age of 67 in Australia”;

3. “the Judgment Debtor and Debtor of MWP in all jurisdictions has cynically and deliberately misled the Court below and this Court throughout”;

4. “We await your reply to the enclosed and receipt of retraction, updating and evidence and apologies for your knowingly false evidence and false submissions, and for so misleading all courts, wasting public resources, costs and time, pay all of our costs and damages caused”;

5. “We fully reserve our rights and in all respects as a result of the litigation fraud the Judgment Debtor and Debtor of MWP in all jurisdictions has and is conducting and in which litigation fraud you and Baird are knowing participants, filing and serving false motions, false submissions, false evidence, when you know and always knew the same to be untrue, as also did the Judgment Debtor”, and

6. “… you and Baird are and have been acting improperly unethically and in knowing, cynical and deliberate material breach throughout”.

52. We pause to note that none of us has ever encountered such correspondence, from a New South Wales solicitor to another New South Wales solicitor, written in such terms.

53. Further, it was written while the Court was reserved on whether Mr Wilson ought be referred to the Legal Services Commissioner.

54. Still further, r 4.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) provides that a solicitor must “be honest and courteous in all dealings in the course of legal practice”.

55. Only weeks earlier, this Court constituted by Bell CJ, Kirk JA and Griffiths AJA had written in Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 at [19]-[22]:

Courtesy and civility by and between practitioners are critical to the administration of justice, respect for and the reputation of the legal profession and ultimately, respect for the rule of law. “The importance of courtesy in the legal system, and in the relationship between the legal profession, the court system, and general public should not be understated”: Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [28] (de Braekt). The Full Bench of the Western Australian Supreme Court in de Braekt at [30] also referred to the admonition of Benham CJ of the Supreme Court of Georgia in Butts v State 546 SE 2d 472 at 486 (2001):

“Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others; corporations would become irresponsible in conducting their business; governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.”

This same passage was quoted with approval by the Full Court of the Supreme Court of the Australian Capital Territory in Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117; (2009) 231 FLR 399 at [23].

The importance of legal practitioners displaying an appropriate standard of courtesy and civility was emphasised by Allsop J in Barghouthi v ING Custodians Pty Limited [2003] FCA 636 at [16] who said “[c]ourtesy and civility are not bourgeois affectations. They are not the mark of the effete or inept litigator. They are part of a practitioner’s overriding duty to the court, indeed to the standards of the profession and to the public.” We agree.

Other authorities are to like effect: Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 667; Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [105]-[106]; McDonald v Legal Services Commissioner (No 2) [2017] VSC 89 at [6]; Barkla v Allianz Australia Insurance Limited [2018] FCA 2070 at [79]; see also G E Dal Pont, Lawyers’ Professional Responsibility (Lawbook Co, 8th ed, 2025) at 767; FT Horne, Cordery on Solicitors (Butterworths, 8th ed, 1988) at 273.

As will be seen, the Respondent’s correspondence both before and indeed after the Tribunal’s decisions was grossly discourteous, coarse, disrespectful, gratuitously offensive, improperly threatening and wholly unprofessional …

56. Unlike the communications from Mr Sideris, Mr Wilson did not employ expletives. His emails were not coarse. Nor did they contain improper threats. But otherwise, Mr Wilson’s emails answered the description of “grossly discourteous”, “disrespectful”, “gratuitously offensive” and “wholly unprofessional”. The conclusion that they were in serious breach of a basic element of Mr Wilson’s professional obligations as a solicitor is inescapable.

57. They were not isolated examples. Mr Duggan exhibited to his affidavit of 1 August 2025 further emails from Mr Wilson to him, including:

1. Email of 24 April 2025 commencing “What nonsense you write … Your email and letter are misconceived and rejected as yet further evidence of the pure fiction and contrived fantasy on your part, and that of Baird, being entirely contingent and fellow-stakeholders with the Judgment Debtor and soon to be bankrupt, like all of Sinclair, Slater and Nicholls before him and which is his destiny” (this email was in response to a courteous letter from Mr Duggan stating that in his opinion the application for review did not have reasonable prospects of success, and anticipating the special costs orders which were subsequently sought by the present motion); and

2. Email of 15 May 2025 commencing “What arrant nonsense you write, as always and where the contents of your email is patently totally without merit. You are cynically and deliberately misleading all courts in Australia and acting in continued and material breach of your professional duties as officers of the Court …”.

58. Mr Duggan also annexes two emails sent by Mr Wilson to the Registrar on the afternoon of 9 May 2025, copied to Mr Duggan and the two other Kazakhstan addressees following the making of timetabling directions. These were responses to emails from the Registrar advising that MWP’s motion would be set down on 20 June 2025, and vacating a directions hearing on 12 May 2025. The first concluded:

With respect, you are not entitled to purport to unilaterally dictate and impose the R’s orders on MWP when a hearing as to our Motion has been listed and arranged by the Court itself and notified to the parties and served.

MWP fully reserves its rights and in all respects, given the violation of our rights, breaches and clear impropriety which has occurred.

59. The second was as follows:

Dear Registrar,

Further to the enclosed in light of the impropriety and breach of MWP’s rights which have occurred, we shall apply to rescind and set-aside your most regrettable and unfortunate adoption of entirely inappropriate and unworkable orders proffered by the Judgment debtor and debtor of MWP in all jurisdictions.

This is a repeat of your prior conduct, as the record shows and proves and the prior Orders were rescinded and set aside, as these will be.

Yours faithfully,

Michael Wilson & Partners, Ltd

60. Pausing there, the reality is that Judges, Registrars and all officers of this Court who deal with unrepresented litigants all too often receive rude or abusive communications when the litigant is dissatisfied with the outcome. All have, and need to have, relatively robust approaches when such communications are received. That is not to excuse the conduct of a minority of unrepresented litigants, but to acknowledge its reality. However, Judges, Registrars and other court officers are invariably entitled to civil communications from members of the profession. We cannot think of circumstances when it could be appropriate for a solicitor to have occasion to send emails to a Registrar of this Court accusing him of impropriety. It is not entirely clear, but it seems that the source of Mr Wilson’s dissatisfaction was that the Registrar had set down one of MWP’s applications for review some six weeks in the future, and MWP had intended to seek a slower timetable. Even if that be wrong, there was no basis to accuse, repeatedly, the Registrar of impropriety.

61. Returning to the correspondence of 4 August 2025 in which the Court was included, Mr Wilson also responded to the Registrar’s email on 4 August 2025 at 3.56pm:

Dear Registrar,

Nothing has been served on MWP prior to the expiry of the deadline last week, accordingly the Respondent is out of time and there are no valid Motions before the Court as the record shows and proves.

Yours faithfully,

Michael Wilson & Partners, Ltd

62. The following day, Tuesday 5 August, the Registrar responded:

Reference is made to the email correspondence below.

MWP and Mr Wilson have until next Friday, 15 August 2025 to file and serve evidence and submissions in response, should they so choose.

Should MWP and Mr Wilson not wish to exercise that right, but are instead content to rely upon what has been said concerning service of the Motions, that position should be confirmed via return email, and the Court will then proceed to determine the outstanding Motions accordingly.

63. Mr Wilson responded the following day, 6 August 2025, at 4:11am AEST:

Dear Registrar,

MWP will indeed be filing and serving detailed further evidence, as well as applying, including given there is no doubt Mr Emmott is a judgment debtor and debtor of MWP in all jurisdictions, including Australia and is and was never entitled to apply as he has and is and has been committing what can only be described as a litigation fraud of epic proportions.

The seven emails received after 11pm Friday 15 August 2025 and the following weekend

64. There were no further emails after 6 August until 15 August 2025, which was the day (a) specified in Justice Leeming’s Associate’s email, and (b) confirmed in the Registrar’s email. Mr Wilson sent an email at 11:11pm AEST which warrants reproduction in full:

Dear Tipstaff,

With reference to the emails enclosed, by Order (2) of the Orders of 11.07.25 Mr Emmott was granted the right to apply as to his alleged costs by motion filed and served within twenty-one (21) days, namely by 01.08.25, together with all evidence and other material in support, including submissions of no more than 5 pages.

As of the date hereof, no motions, evidence, material in support or submissions have been served by Mr Emmott on MWP at all, indeed, we have heard nothing at all from Mr Duggan and have received no correspondence or documents from him since 29.07.25, accordingly, MWP assumes Mr Duggan has downed tools and ceased to act. We have carefully checked our systems and servers and nothing at all has been received from him. Perhaps, Mr Emmott is now acting as a litigant-in-person as he does in all of the UK, the BVI, the Bahamas and NZ.

Although we have received nothing from Mr Duggan since 29.07.25, having checked the NSW Online Registry, the chronology of events is as follows:

1.   by Order (2) of the Orders of 11.07.25 Mr Emmott was granted the right to apply as to his alleged costs by motion filed and served within twenty-one (21) days, namely by 01.08.25, together with all evidence and other material in support, including submissions of no more than 5 pages – this has never occurred since nothing has been served at all;

2.   on 01.08.25, it would appear that someone filed two (2) notices of motion, attached to each of which was an affidavit as one pdf (93 pages), and as a result of which the court generated the usual “notice of motion acknowledgement” at about 3:16pm in relation to both of NSWCA Nos.2024/00416114 (Recognition) & 2024/00449432 (TPIDIAPT). It seems that no submissions at all have been drafted, filed or served;

3.   on or prior to 01.08.25, nothing was served on MWP as we communicated to you same day in reply to your email enclosed;

4.   on 04.08.25, someone filed two second and further affidavits (13 pages) at or about 1:16pm, of which of course, you were not aware on 01.08.25, and where no second round or further evidence on a later date was permitted and allowed;

5.   on or prior to 04.08.25, nothing still had been served on MWP as we communicated to the Registrar on the same day in reply to his email enclosed;

6.   on 04.08.25, we received an email from the Registrar, saying that Notices of Listing of 04.08.25 had been cancelled, though no such things were ever provided to and served on MWP; and

7.   as of today, 15.08.25, nothing at all has been served on MWP, and as mentioned above we have heard nothing at all from Mr Duggan since 29.07.25.

Accordingly, we now seek directions requiring Messrs Emmott, Baird and/or Duggan to formally notify the court and file and serve the necessary forms if, indeed, as would appear to be the case Mr Duggan has downed tools and ceased to act since 29.07.25.

If needs be, we can provide draft Short Minutes of Order for consideration by the Justices.

Further, we now seek directions requiring Messrs Emmott, Baird and/or Duggan to comply with Order (2) of the Orders of 11.07.25 and to serve MWP with the notices of motion and all evidence and other material in support, including any submissions in relation to each of NSWCA Nos.2024/00416114 (Recognition) & 2024/00449432 (TPIDIAPT), separately, after which MWP will then have fourteen (14) clear days to respond as directed and in the usual way, given the ≥132 pages of new material, and where we do not yet know about the submissions.

As of today, nothing at all has been served on MWP, contrary to Order (2) of the Orders of 11.07.25, and accordingly, we respectfully submit MWP is not obliged to respond until it has been so served as required by the Court.

Finally, please note that the hearing before HHJ Pelling KC proceeded on 05.08.25, from which there is no doubt Mr Emmott is and has been a judgment debtor and debtor of MWP in all jurisdictions for decades, and owes MWP many millions of dollars, including not only qua Sinclair, but also by Australian judgments, and accordingly in law and in equity had no proper basis to apply for and seek security for costs. The hearing before HHJ Pelling KC will resume on 12.01.26, after Mr Emmott files and serves his evidence on 19.08.25, which he failed to do from 07.04.25, in breach of the CPR and the CCG, whereas MWP had filed and served all of its evidence, including forensic accounting evidence with assistance from Fellows of the ICAEW.

65. The references in that email to affidavits of 93 and 13 pages, and “the ≥132 pages of new material” establish that Mr Wilson had seen the notice of motion and Mr Duggan’s affidavits of 1 and 4 August 2025 in support.

66. On Saturday 16 August 2025, at 10:09am and 10:11am, Mr Baird resent to Mr Wilson emails sent by Mr Duggan to Mr Wilson into which Mr Baird had been copied, on 1 August 2025. Mr Baird’s emails were unquestionably received, and prompted Mr Wilson’s response at 9:10pm that Saturday (Justice Leeming’s Associate was copied in to all these emails):

Dear Sirs,

Thankyou [sic] for your emails, which we shall review in detials [sic] and revert. As you know, we have been sent and received by emails at all [sic] by and from Mr Duggan and his Duggan Legal since 290725, though our system is and has always been working properly and normally, and we have no problems sending and receiving emails, indeed none of our emails to Mr Duggan have bounced or failed to get through. Seems there is a real and serious problem with his email systems and processes, as also occurred in 11.24.

As to any Written Submissions, we note that the same are still missing, as PJD informed the NSWCA as follows:

“We also attach a copy of the respondent’s submissions on costs applications dated 1 August 2025 (covering both proceedings) which we have attempted, thus far unsuccessfully, to file. ….We will forward a sealed copy of the respondent’s submissions once we have been successful in filing them..”

Looking at the list of documents filed in the NSW Online Registry, it would actually appear that the submissions may never have been filed as the same do not appear there, as they would if they had ever been filed, approved, issued, stamped and sealed ready for use and service.

Accordingly, please now also send to us the Written Submissions, as actually filed, approved and sealed.

67. That led to a response by Mr Baird on Sunday afternoon at 3:43pm as follows:

Dear Sir,

Sealed copy of Respondent’s Submissions filed 1 August 2025 is now attached, as served on you by Mr Duggan (copies of his emails are also attached).

It is patently obvious that you have blocked all of Mr Duggan’s emails to you, in order falsely to assert non-service on you.

I do not appreciate being your service agent.

68. Mr Wilson responded almost immediately, at 3:51pm AEST:

Secondly, the proposition sought to be supported by category two documents is not one which the Court should address in determining whether to order security for costs. To determine the truth of the applicant’s assertions as to the credit balance in its favour resulting from extensive litigation extending over the better part of a decade would be to embark on satellite litigation of a greater magnitude than that decried by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46. Such an exercise would contravene the obligations imposed on the Court and the parties under Pt 6 of the Civil Procedure Act 2005 (NSW) to focus on the just, quick and cheap resolution of the real issues in dispute. It will not be entertained on an application for the small amount of security likely to be required for an application for leave to appeal, or indeed, an appeal.

149. The reasoning in that paragraph is an illustration of a broader principle. Litigants are not free to litigate all issues, especially in doubly or triply adjectival applications such as security for costs of applications to seek leave to appeal from interlocutory decisions concerning the granting of a stay or the vacation of a hearing date. To the contrary, litigants and their lawyers are under a duty to assist the court in facilitating the just, quick, and cheap resolution of the real issues in the proceedings.

150. We return to the task of quantifying the gross sum costs order, in relation to the applications determined by McHugh JA and Basten JA. The actual costs were some $39,000. They must be discounted, in part because of the high hourly rates charged for work that could have been done by less senior practitioners, in part because there will always be a discount in applications such as this, but mostly because they are too high having regard to the security ordered. That said, the costs will have been increased by the approach to litigation adopted by MWP (for example, its notice to produce). We consider that costs in the amounts of $7,500 in each case are appropriate.

151. Fixing upon a number in a case such as this is necessarily somewhat impressionistic. To be as transparent about this as we can, if the same costs had been incurred in relation to a heavy appeal set down for five days where security of say $200,000 was ordered, such that the application secured a tangible benefit and the qualifications addressed above were inapplicable, then the ordinary discounting of the $39,000 in fact incurred would result in gross sums of in the order of $28,000-$32,000. However, because we do not consider that it is fair and reasonable for ordered costs consequent upon an application for security for costs to approximate or exceed the amount of security ordered, there being in those circumstances no tangible benefit to the successful applicant for security, we apply an additional steep discount to reduce the amount to something which is proportionate to the security ordered, although bearing in mind that some of Mr Wilson’s conduct has increased the costs.

(c) the costs of responding to MWP’s applications for review

152. Turning to the applications for review brought in this Court, Mr Emmott had no choice but to respond to the motions seeking review and vacation of the hearing date.

153. The actual costs incurred were $24,217 for the proceedings seeking review of McHugh JA’s order, and $13,954.50 for the proceedings seeking review of Basten AJA’s order. In some cases where there is complete overlap (for example, solicitor’s and counsel’s fees for the hearing day), half of the amount has been allocated to each matter (thus Mr Baird has billed $2,750 for each proceeding on 20 June 2025).

154. The costs are relatively high bearing in mind what was involved, but that is a consequence of the amount of material adduced by Mr Wilson, which was wholly out of proportion to what was involved. Save for the work which could have been done by less senior practitioners, all of the costs appear to have been reasonably incurred. Bearing in mind that qualification, we would reduce the costs incurred by both practitioners by some 10%, resulting in amounts of $21,800 (0.9 x ($12,317 + $11,900)) and $12,500 (0.9 x ($5,504.50 + $8,450)) in proceeding 416114 and 449432 respectively. Bearing in mind that in the assessment of an indemnity costs order, a reduction in the order of 5% upon solicitors’ costs is ordinarily applied. We conclude that costs should be ordered in amounts of $21,000 and $12,000.

Set-off and other procedural orders

155. Mr Emmott seeks orders that the gross sums costs orders be paid “without deduction or set off”, and that they be paid within 14 days. There is no basis for any such order.

156. A gross sum costs order, made pursuant to s 98(4)(c) as an alternative to costs assessment, produces substantially the same result as assessment. The order will support a judgment debt in the amount of the order, and may be executed in the same ways (including garnishee, application to wind up or writ of execution). Whether MWP is entitled to a set off is something that cannot be determined in the abstract. It will turn on the mode of execution, and perhaps also the place where that occurs. It cannot be determined on an application such as this.

157. The costs the subject of all these orders are interlocutory. No good reason has been put forward to depart from the ordinary rule (UCPR r 42.7) that they not be presently enforceable. Indeed, no submissions are directed to this by Mr Emmott. If MWP supplies security and the appeals are heard and determined favourably to MWP, MWP may be expected to obtain a costs order in its favour, and a set-off will apply. On the other hand, if MWP fails to provide security, or for some other reason the appeals are dismissed, then these orders will be enforceable in the usual way.

158. Mr Emmott also seeks orders in each proceeding that if the costs are not paid within 14 days, the summons seeking leave be dismissed. As well as being contrary to UCPR r 42.7, that application conflates the discretion to order security for costs with the ancillary entitlements of a successful party to the costs of an interlocutory application.

159. Mr Emmott also seeks an order that MWP pay the amount of $11,581.50 for the costs of preparing the application for a gross sum costs order. We are not minded to make any such order, bearing in mind the partial success of Mr Emmott on his application and the absence of any tangible benefit in spending more money in obtaining orders for security for costs than the security in fact ordered.

Costs against Mr Wilson personally

160. This Court has power to order that Mr Wilson is personally liable for the costs his client MWP has been ordered to pay, both under s 99 of the Civil Procedure Act and in its inherent jurisdiction to regulate solicitors: see Hartnett v Bell (2023) 112 NSWLR 463; [2023] NSWCA 244 at [123]-[137].

161. However, there are two obstacles to exercising that jurisdiction in the present case.

162. First, both the Court’s inherent power and that conferred by s 99 turn on Mr Wilson being a legal practitioner. That is why it is not necessary before exercising the power to join him as a party to the proceedings; instead it is sufficient that he has a reasonable opportunity to be heard. To be clear, we are satisfied that Mr Wilson has enjoyed a reasonable opportunity to be heard, for he has been on notice of the application since it was flagged in written and oral submissions at the hearing in June 2025, he has had actual knowledge of the fact that it was made on and from 1 August 2025, he has had access to JusticeLink from that time, and even taking the most favourable view of his evidence about receiving emails, he received the whole of the materials relied upon on Saturday 16 August.

163. However, Mr Wilson is no ordinary solicitor. He is a solicitor of whom we hold serious concerns whether he should be permitted to practise in New South Wales. This litigation has been characterised by (a) meritless points raised by him, (b) prolix and needless complexity, (c) the making of serious allegations against judges, the Registrar and practitioners without foundation, and (d) intemperate discourtesy.

164. True it is that Mr Wilson is a legal practitioner at present, and subject to s 99 and the exercise of this Court’s inherent jurisdiction. However, all of the reasons which favour the making of a personal costs order overlap with the reasons which warrant the serious step of a referral to the Legal Services Commissioner. That latter course is intrinsically protective. On the other hand, the making of a personal costs order is apt to be punitive. In the particular circumstances of this case, it is inappropriate to do both.

165. Secondly, there is at the least a tension between on the one hand a referral of Mr Wilson to the Legal Services Commissioner for investigation as to whether he should cease to be permitted to practise as a solicitor, and on the other hand the exercise of a jurisdiction an element of which is the fact that Mr Wilson is in practice as a solicitor.

166. For those reasons, we do not accede to the application for a personal costs order.

Orders

167. The result is that Mr Wilson’s informal application to reopen the judgment is refused, and this judgment on the papers will be referred to the Legal Services Commissioner. That referral is based upon the matters raised in this Court’s earlier judgment, and Mr Wilson’s response. However, it will be plain from what has been said in relation to the matters arising when dealing with the application for security for costs that those considerations confirm the appropriateness of the referral.

168. On Mr Emmott’s motions, orders for indemnity costs of the applications to review the decisions of McHugh JA and Basten AJA, and gross sum costs for all the costs orders of proceedings in this Court will be made, albeit in substantially smaller amounts than were sought. The other orders sought in the notices of motion will not be made.

169. In light of the partial success concerning special costs orders, there should be no order as to the costs of Mr Emmott’s notices of motion, with the intention that the parties and Mr Wilson bear their own costs.

170. The Court’s orders are:

In proceeding 2024/416114 (the review of orders made by McHugh JA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $21,000.

6. In respect of the order for costs made in favour of Mr Emmott on 14 March 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

In proceeding 2024/449432 (the review of orders made by Basten AJA):

1. Dismiss the informal application made to reopen the judgment delivered on 11 July 2025.

2. Grant leave to Mr Emmott to rely on Mr Duggan’s affidavit of 4 August 2025.

3. Refuse the informal application to cross-examine.

4. The Registrar of this Court be directed to refer this judgment and the papers in this proceeding to the Office of the Legal Services Commissioner.

5. Order that Michael Wilson & Partners Ltd pay Mr Emmott’s costs in a gross sum of $12,000.

6. In respect of the order for costs made in favour of Mr Emmott on 15 April 2025 (order 4), Mr Emmott is entitled to costs in a gross sum of $7,500.

7. Otherwise dismiss the notice of motion filed on 1 August 2025.

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annexure ‘a’

Annexure 'A' - [2025] NSWCA 206 (189 KB, pdf)

annexure ‘b’

Annexure 'B' - [2025] NSWCA 206 (4.20 MB, pdf)

Decision last updated: 09 September 2025