Michael Wilson & Partners Ltd v Emmott (No 5)

The New South Wales Court of Appeal, constituted by Leeming, Mitchelmore and Free JJA, considered applications by Michael Wilson & Partners Ltd (MWP) and Mr Emmott concerning costs orders and the conduct of Mr Emmott's solicitor. MWP sought to reopen previous judgments and challenge costs orders, while Mr Emmott sought to rely on an affidavit and cross-examine. The central dispute revolved around the appropriateness of referring Mr Emmott's solicitor to the Legal Services Commissioner and the nature of the costs orders to be made.

The Court was required to determine whether to grant leave to reopen judgments, allow the use of a specific affidavit, permit cross-examination, and, crucially, whether to refer the conduct of Mr Emmott's solicitor to the Legal Services Commissioner. Additionally, the Court had to decide on the quantum and basis of costs orders, including whether to award costs in a gross sum and the significance of any referral to the Legal Services Commissioner in exercising its jurisdiction over costs.

The Court dismissed MWP's applications to reopen the judgments and refused the informal application for cross-examination, while granting Mr Emmott leave to rely on the specified affidavit. The Court determined that the submissions before it confirmed the appropriateness of referring the matter concerning Mr Emmott's solicitor to the Legal Services Commissioner, and accordingly directed the Registrar to make such a referral. In relation to costs, the Court ordered MWP to pay Mr Emmott's costs in gross sums for two separate proceedings, reflecting a determination that the circumstances warranted such an approach.