Michael Wilson & Partners Ltd v John Forster Emmott (No 2)

[2025] NSWCA 59

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Michael Wilson & Partners Ltd v John Forster Emmott (No 2) [2025] NSWCA 59

Hearing dates:

31 March 2025

Date of orders:

31 March 2025

Decision date:

31 March 2025

Before:

Basten AJA

Decision:

Recusal application declined.

Catchwords:

CIVIL PROCEDURE – respondent’s application for security for costs – applicant sought recusal – reasonable apprehension of bias – judge on court which dismissed separate appeal proceedings 15 years ago – previous judgment not concerned with merits of current proceeding – no findings as to credibility

Cases Cited:

Michael Wilson & Partners Ltd v Emmott – Final [2024] NSWSC 1489

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Nicholls vMichael Wilson & Partners Ltd [2010] NSWCA 222; 243 FLR 177

Category:

Procedural rulings

Parties:

Michael Wilson & Partners Ltd (Applicant)
John Forster Emmott (Respondent)

Representation:

Counsel:
J Baird (Respondent)

Solicitors:
M Wilson (Applicant)
Duggan Legal (Respondent)

File Number(s):

2024/449432

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2024] NSWSC 1489

Date of Decision:

22 November 2024

Before:

Hammerschlag CJ in Eq

File Number(s):

2016/0034380

JUDGMENT

1. BASTEN AJA: The applicant, Michael Wilson & Partners Ltd (MWP), seeks to have me recuse myself from hearing the motion by the respondent seeking security for costs of the applicant’s application for leave to appeal. The application for leave to appeal concerns a judgment of Hammerschlag CJ in Eq, Michael Wilson & Partners Ltd v Emmott – Final [2024] NSWSC 1489, delivered on 22 November 2024.

2. The basis of the recusal application is my involvement as a member of this Court in 2010 in an appeal from a judgment of Einstein J in the Equity Division in which MWP had been successful. This Court reversed that judgment on the basis of a reasonable apprehension of bias on the part of the trial judge, a ground not dependent on findings in the judgment. The appeal also dealt with a question of law as to whether there was an abuse of process in MWP seeking orders in the Supreme Court while pursuing an arbitration of related issues before an arbitrator in London. This Court held that there was an abuse and that a retrial which it ordered should await the outcome of the arbitration: Nicholls vMichael Wilson & Partners Ltd [2010] NSWCA 222; 243 FLR 177.

3. The High Court reversed the judgment of this Court, concluding that there was no reasonable apprehension of bias and that there was no abuse of process: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48. Other grounds of appeal, which had not been resolved by this Court, were then remitted. There were further hearings in this Court, on none of which I sat.

4. The judgement in the 2010 appeal did not involve any finding as to the credibility of witnesses, or of Mr Wilson himself; nor as to the merits of any claims in the proceedings in the Equity Division, to which, as Mr Wilson acknowledged, the respondent was not a party. Nor does this application for security of costs rely upon, or have any material connection with, the findings of procedural fact on which the legal issues in the 2010 judgment of this Court turned.

5. Applying the test confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls at [31], I am not persuaded that a fair-minded observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question of security for costs, brought by the respondent in relation to the applicant’s application for leave to appeal. I therefore decline to recuse myself.

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Decision last updated: 03 April 2025