Michael Wilson & Partners Ltd v Nicholls (No 14)
[2025] ACTCA 1
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Michael Wilson & Partners Ltd v Nicholls (No 14) |
Citation: | [2025] ACTCA 1 |
Hearing Date: | 14 November 2024 |
Decision Date: | 21 January 2025 |
Before: | Curtin AJ |
Decision: | See [119] |
Catchwords: | APPEAL – SECURITY FOR COSTS – Application to discharge order for security for costs – claim that successful party net debtor of unsuccessful party – onus of proof – discretionary matters - whether matters now advanced differ from those addressed in earlier judgment of the Court – matters raised by applicant identical or variations on previous submissions to the Court |
Legislation Cited: | Civil Procedure Act 2005 (NSW) s 99 |
Cases Cited: | Ainsworth v Burden [2005] NSWCA 174 |
Parties: | Michael Wilson & Partners ( Applicant) Robert Colin Nicholls ( First Respondent) David Ross Slater (Second Respondent) Temujin Services Ltd (Third Respondent) Temujin International Ltd (Fourth Respondent) Temujin International FZE (Fifth Respondent) John Forster Emmott (Sixth Respondent) Effective Funds Management Pty Ltd (Seventh Respondent) |
Representation: | Counsel WDB Buckland ( Applicant) J Baird ( Sixth Respondent) |
| Solicitors Michael Wilson & Partners ( Applicant) Duggan Legal ( Sixth Respondent) | |
File Number: | AC 36 of 2021 |
Decision Under Appeal: | Court/Tribunal: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 30 June 2021 Case Title: Michael Wilson & Partners Ltd v Nicholls Citation: [2021] ACTSC 128 |
CURTIN AJ:
Introduction
1․This judgment concerns:
(a)the applicant’s (Michael Wilson & Partners) (MWP) application to discharge the security ordered to be provided for the sixth respondent’s (Mr Emmott) costs of MWP’s application for leave to appeal; and
(b)Mr Emmott’s application that:
(i)indemnity costs orders made on 9 December 2022 and 24 February 2023 against MWP be assessed on a gross sum basis in the amount of $74,189.27;
(ii)those costs be paid by MWP’s solicitor; and
(iii)the party/party cost order made on 17 April 2024 against MWP be assessed on a gross sum basis in the amount of $44,969.63.
Background
2․On 30 June 2021, McWilliam AsJ (as her Honour then was) delivered her reasons in Michael Wilson & Partners Ltd v Nicholls & Ors [2021] ACTSC 128 (MWP (ACT)). Her Honour found that the proceedings commenced by MWP were taken to be dismissed by operation of r 75 of the Court Procedure Rules 2006 (ACT) (the Rules). Her Honour refused to reinstate the dismissed proceedings pursuant to r 76 of the Rules, having been satisfied it was not in the interests of justice to do so.
3․MWP filed an application for leave to appeal from her Honour’s orders.
4․In Michael Wilson & Partners Ltd v Nicholls (No 6) [2022] ACTCA 41 (MWP No 6) Loukas-Karlsson J ordered MWP to provide security for Mr Emmott’s costs of the application for leave to appeal in the sum of $22,500.
5․Such security was subsequently provided by way of bank guarantee.
6․In Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 (MWP No 9) Loukas-Karlsson J ordered MWP to pay Mr Emmott’s costs in relation to various applications concerning the application for order for security for costs.
7․In that regard, Loukas-Karlsson J ordered MWP to pay Mr Emmott’s costs of the following matters on the indemnity basis (MWP No 9 at [104]):
(i) the costs of and incidental to the hearing of Mr Emmott’s application filed on 15 August 2021:
(ii) the costs of and incidental to the setting aside of MWP’s two notices to produce;
(iii) the costs of and incidental to the hearing of MWP’s application filed on 28 April 2022; and
(iv) the costs of and incidental to the hearing on 1 November 2022.
8․In Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13 (MWP No 10) Loukas-Karlsson J ordered MWP to pay Mr Emmott’s costs on the indemnity basis of and incidental to the hearing of MWP’s application heard on 22 February 2023 (being an application to set aside the earlier order that MWP provide security for costs).
9․On 2 February 2024 I refused MWP’s application for leave to appeal: Michael Wilson & Partners Ltd v Nicholls (No 12) [2024] ACTCA 1 (MWP No 12).
10․On 17 April 2024 I ordered MWP to pay Mr Emmott’s costs (on the ordinary basis) of the application for leave to appeal: Michael Wilson & Partners Ltd v Nicholls (No 13) [2024] ACTCA 15 (MWP No 13).
11․By an application filed on 8 October 2024 MWP sought an order that the order for the provision of security made in MWP No 6 be discharged, together with various associated orders.
12․By an application filed on 19 September 2024 Mr Emmott sought the costs orders set out at [1] above.
The application to discharge the security
13․As I observed in MWP No 12 at [8]:
Litigation has ensued between the parties to these proceedings in the United States, the United Kingdom, the British Virgin Islands, the Bahamas, Switzerland, New Zealand and Australia, amongst other places. There have been arbitrations, hearings, appeals (to the NSW Court of Appeal and the High Court of Australia as well as appeals in England), and remittals.
14․As a result, there are a number of arbitral awards, judgments and costs orders existing between the parties. Some favour one party, others the other.
15․In December 2024, a hearing was to take place in England on whether some of those awards, judgments, and costs orders may be set off against each other. Those proceedings do not include respective judgments and orders made between the parties in Australian courts.
16․MWP submitted that the net result of that litigation is that Mr Emmott is indebted to MWP under existing unsatisfied judgments and orders, in very substantial sums, and has been so since 3 December 2018. MWP led evidence of various judgments and orders pursuant to which Mr Emmott owes monies to MWP (in its own right or as assignee of other’s rights).
17․The short point is that, although MWP asserts that Mr Emmott owes it substantial sums, there has been no final reckoning of the net indebtedness between them. That is, it is not presently known who the net creditor or the net debtor is.
18․MWP led evidence of what it said Mr Emmott owed it, but not what it owed Mr Emmott. MWP submitted that it was for Mr Emmott to have led evidence of what he was owed by MWP, and, he not having done so, the only evidence is that MWP is owed monies by Mr Emmott.
19․I do not accept that submission. The application was brought by MWP. It was the party asserting a net indebtedness in its favour. It bore the onus of proving the asserted fact. He that asserts must prove, as the adage goes.
20․Further, the order sought does not affect the indebtedness of MWP to Mr Emmott for the costs of the appeal. Rather, MWP seeks to have the security for those costs discharged without disturbing the underlying costs order. Thus, the substantive object of the order sought would be, in effect, to frustrate the effect of Loukas-Karlsson J’s order for security.
21․I also note that a substantially similar argument (that Mr Emmott was a net debtor of MWP) was put to her Honour in Michael Wilson & Partners Ltd v Nicholls (No 8) [2022] ACTCA 64 (MWP No 8) when MWP brought an application seeking to set aside the security for costs order made in MWP No 6.
22․In MWP No 8 Loukas-Karlsson J said at [48]:
Turning to the final matter the applicant pointed to, that he is now a net-creditor rather than debtor, I again am of the view that this is not a matter relevant to my original decision. In my view, this is not a matter that, had I been aware of it at the date of my original order, would have required a different result and is not a material change in circumstance.
23․In substance, the application before me is yet a further application to vary the order made in MWP (No 6) and on a ground that had been earlier rejected as being not relevant to the order for security.
24․MWP submitted that circumstances had changed. It submitted that there had been another costs order not satisfied by Mr Emmott and the application for leave to appeal had been determined. Neither is a relevant change in circumstances. If anything, the fact that MWP has now been ordered to pay Mr Emmott’s costs of the application for leave to appeal is a factor militating against the order sought by MWP.
25․There being no material change in circumstances, this argument should not be accepted by a second judge (me) when that submission had been rejected by the first judge (Loukas-Karlsson J) who had made the order for security.
26․MWP’s application is refused.
The gross sum costs orders
27․There is no dispute that the Court has power to order gross sum costs orders.
28․Costs charged to Mr Emmott do not attract GST because he resides outside Australia. Accordingly, all of the amounts mentioned in this judgment are exclusive of GST as GST is not chargeable.
29․Refshauge J set out the relevant principles in Andara Homes Pty Ltd v Palm and Jiang [2014] ACTSC 141 at [41]-[51]. I gratefully adopt his Honour’s succinct summary of principle.
30․In this case there is, in my view, a clear case in favour of making such orders.
31․The parties have engaged in a multitude of proceedings in multiple jurisdictions. It is unlikely that any point that could be taken in that litigation has not been taken.
32․In Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998 Stewart J said at [30] of Mr Wilson, the applicant’s solicitor:
These reasons for judgment, as well as many others in this Court and courts abroad, including in the Court of Appeal of England and Wales, have been critical of Mr Wilson's conduct of this and other related cases on behalf of MWP. Mr Wilson is a principal of MWP and apparently has a financial interest in it. He has pursued, and continues to pursue, this and related litigation on MWP 's behalf in an obsessive, unrelenting and burdensome way which is, perhaps, borne of his personal interest in it.
33․That obsessive, unrelenting and burdensome approach to litigation was replicated in the applications decided in MWP Nos. 6, 8, 9 and 10 as is obvious from the observations of Loukas-Karlsson J, some of which I have quoted later in this judgment.
34․One of the purposes of the gross sum costs power is to avoid the expense, delay and aggravation involved in protracted litigation arising out of an assessment of costs, particularly where one party has delayed or failed to comply with court orders (as MWP did with the bank guarantee) and failed to ensure an expeditious and efficient disposal of the litigation (as MWP has by bringing repeated applications with no material change of circumstances).
35․MWP submitted that it was not appropriate for gross sum costs orders to be made as such orders were more appropriately made on assessment before a registrar, rather than by the Court of Appeal constituted by a single judge. It was submitted that MWP should have the opportunity to properly test the amounts sought on an assessment. I accept such matters are to be taken into account, but those are matters necessarily incidental to the exercise of the gross sum costs discretion and I give them little weight in this case given Mr Wilson’s approach to this litigation.
36․MWP submitted that Mr Emmott had never filed and served a compliant bill of costs in relation to any costs order which he had obtained, and had never had his costs assessed, taxed, or adjudicated upon. Whilst that is accurate, his solicitor’s and counsel’s costs agreements and invoices were in evidence and no part of them was the subject of any challenge or submission. And again, whilst such matters are necessarily incidental to the exercise of this gross sum costs discretion, they are not determinative.
37․In my view, gross sum costs orders should be made to save the parties the time, trouble, delay, expense, and aggravation in protracted litigation arising out of taxation of the costs ordered to be paid.
38․The assessment of those sums is more problematic in relation to the costs ordered to be paid on the ordinary basis. But first I shall deal with the costs sought in relation to the two indemnity costs orders.
39․Mr Emmott relied on an affidavit of his solicitor, Mr Duggan. Mr Duggan is highly experienced in complex commercial litigation, has been in practice for 42 years and has regularly acted for parties in various superior courts, including the High Court of Australia, the Federal Court of Australia, and the Supreme Court of New South Wales.
40․He has acted for and advised parties in relation to costs assessments on a number of occasions, however he has not done so in the Australian Capital Territory (ACT).
41․In relation to the two indemnity costs orders, Mr Emmott seeks $44,398.50 for solicitor’s fees (including disbursements) and $29,790.77 for counsel’s fees (including disbursements), making a total of $74,189.27.
42․Mr Duggan annexed to his affidavit copies of his firm’s tax invoices, he described the work undertaken in relation to the matters the subject of the indemnity costs orders, and none of his evidence in that regard was challenged as being unreasonably incurred.
43․That latter fact is important because r 1752(4) of the Rules says:
(4)In assessing costs on an indemnity basis, the registrar—
(a)must allow all costs other than costs unreasonably incurred (with the party paying the costs having the onus of proving that the costs were unreasonably incurred); and
(b)may have regard to any costs agreement between the party to whom the costs are payable and the party’s solicitor.
44․Mr Duggan’s hourly rate charged was that set out in his firm’s costs agreement, a fact I may take into account pursuant to r 1752(4)(b).
45․Mr Emmott conceded that a five percent reduction could be made in relation to the solicitor’s costs consistently with other authorities.
46․In my view the quantum of Mr Emmott’s solicitor’s costs, (including disbursements but excluding counsel’s fees) in relation to the matters the subject of the indemnity costs orders should be allowed, but with a reduction of five percent.
47․In relation to counsel’s fees, counsel charged more than the upper limit set out in the most recent Counsel's Fees Scale (CFS) (excluding GST) for appearances issued by the Court in 2021, but counsel’s hourly rate was within the range suggested.
48․In relation to the appearance fee, the CFS said that a “Taxing Officer still has a discretion to allow a higher or lower fee than is set out herein”, and, as pointed out earlier, I am entitled to take into account counsel’s costs agreement.
49․MWP has not challenged any aspect of counsel’s fees for the matters the subject of the indemnity costs orders, and I would also take into account the greater than usual complexity of the matters at issue, not least because of the need to consider the multitude of proceedings in other jurisdictions.
50․In my view the quantum of counsel’s fee in relation to the matters the subject of the indemnity costs orders should be allowed but with a reduction of five percent. That reduction is made on the basis that counsel’s appearance fee was above the maximum set out in the CFS.
51․One complaint by MWP is that in an application of this sort it is denied the usual opportunity of challenging costs items that it would have in a normal taxation process. It says it did not have the opportunity of seeking various documents and the like in the preparation for these applications given the timetable set.
52․Whilst there is some force in MWP’s submission, I ultimately do not accept it. I do not accept that it could not have undertaken some forensic procedures to challenge some costs items if there were any particularly egregious items if it was desirous of doing so. There is no evidence before me that it tried to seek directions for the taking of the forensic steps it identified to me when a timetable was set for the exchange of evidence and other matters in preparation for the hearing of these applications, and no adjournment application was made to me to allow those steps to be taken.
53․Therefore, I will allow Mr Emmott the total sum of $70,480 (rounded off) as the gross sum to be paid in relation to the indemnity costs orders, being the amounts claimed less five percent.
54․In relation to the costs ordered to be paid on the ordinary basis, being Mr Emmott’s costs of the application for leave to appeal, Mr Emmott’s solicitor/party bill was $20,219.50 for solicitor’s fees and $30,987.50 for counsel’s fees.
55․Mr Duggan provided his and counsel’s costs agreements and invoices.
56․In relation to the amount claimed on the application, Mr Duggan allowed a reduction of 25 percent as his estimate of a reduction which would be made to his fees on taxation, and reduced counsel’s daily appearance fee to the maximum allowable pursuant to the CFS. No reduction was made to counsel’s hourly rate, it being toward the lower end of the allowable range.
57․Mr Duggan’s evidence was that it is common in NSW for a reduction of 25 percent to be made on a party/party assessment of solicitor’s fees. No evidence was given as to the practice in the ACT. Given the relatively modest amounts claimed, I will allow for a reduction of 25 percent in relation to solicitor’s fees.
58․It is also the case that a further reduction of 10 – 15 percent is commonly made to solicitor’s fees when making gross sum costs orders in order to make some allowance for the necessary broad brush approach undertaken, and to be conservative in not over-compensating the moving party who seeks the benefit of such an order. I will allow a further reduction of 10 percent.
59․Counsel’s fees having been reduced to the maximum set in the scale, and given the complexity of the matters in issue in the application for leave to appeal, I will make no further reduction in relation to counsel’s fees.
60․Making those allowances, I would make a gross sum costs order in relation to the costs order I made on 17 April 2024 in the total sum of $43,453, being $13,648 (rounded off) for solicitor fees (including disbursements) and $29,805 for counsel’s fees.
61․Mr Emmott sought an order that the costs be payable forthwith. I decline to make that order. The orders for costs have been made, and I have assessed their quantum. There is no need for the order sought.
The personal costs order
62․Mr Emmott also sought an order that Michael Earl Wilson, MWP’s solicitor, pay the indemnity costs orders personally pursuant to r 1753 and pursuant to the Court’s inherent jurisdiction.
63․Rule 1753 provides:
1753Costs—legal practitioner’s delay etc
(1)This rule applies to a legal practitioner acting for a party to a proceeding if—
(a)the hearing of the proceeding, or an application in the proceeding, did not proceed, and a party to the proceeding incurred costs, because the practitioner—
(i) failed to attend the hearing either personally or by someone on his or her behalf; or
(ii) failed to file a document; or
(iii) failed to deliver a document or thing necessary for use in the hearing; or
(iv) failed to do anything else required to be done under these rules or in accordance with the practice of the court; or
(b)a party to the proceeding incurred costs because of the delay, misconduct or negligence of the practitioner.
(2)The court may order the legal practitioner—
(a)to repay to a party all or part of any costs ordered to be paid by the party to another party because of the practitioner’s conduct; or
(b)to pay the costs incurred by any party because of the practitioner’s conduct.
Note
Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(3)The court may, on its own initiative, order the legal practitioner not to charge the practitioner’s client costs in relation to all or any part of the proceeding if justice requires it.
64․Mr Emmott did not identify which part of the rule he relied on, but I assume it was “misconduct” and “negligence” in r 1753(1)(b).
65․In addition to that power, the Court has inherent jurisdiction which can be exercised in any circumstances where the requirements of justice demand it and which is not restricted to closed and defined categories of cases: Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244; 112 NSWLR 463 (Hartnett) per Bell CJ (Adamson JA and Griffiths AJA agreeing) at 492 [123].
66․In relation to costs, this inherent jurisdiction allows this Court to make orders that a legal representative personally pay the opposing party’s costs directly for unnecessary or wasted costs if it determines that a solicitor has departed from, but should be held to, ethical and honourable behaviour: Hartnett at 494 [123].
67․Two particular matters arising in Hartnett should be noted.
68․First, the inherent jurisdiction identified above is not displaced by rules of court, nor confined by them, provided the exercise of the inherent jurisdiction does not contravene the requirements of the rules of court: Hartnett at 496 [130].
69․Second, one should not lose sight of the fact that Hartnett was a case of a solicitor overcharging his own client and is not a case where party A sought an order requiring the solicitor for party B to pay party A’s costs. Therefore, any statements made in that case must account for the different factual situation involved.
70․One submission advanced by Mr Emmott was to the effect that this jurisdiction was both punitive and compensatory. Whilst strictly correct when speaking of the breadth of the inherent jurisdiction of a superior court over legal practitioners, the submission was overstated in this case because it overlooked the fact that the punitive arm of the jurisdiction is directed to matters of professional misconduct and not to orders for costs of the type sought here.
71․In relation to the inherent jurisdiction regarding costs, Hartnett cited NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 (NHB) at [44], which in turn cited Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [20].
72․In NHB Ward CJ in Eq said:
[46]The relevant principles governing the exercise of the power to make costs orders against legal practitioners were summarised by McColl JA in Lemoto (see at [92]) and by her Honour again in Kelly v Jowett(2009) 76 NSWLR 405; [2009] NSWCA 278 (Kelly) (see at [60]). They were considered more recently in Re Felicity (at [7]–[24] per Basten JA); Nadarajapillai v Naderasa (No 2)[2015] NSWCA 209 (Nadarajapillai) (at [11] per Emmett JA, McColl and Macfarlan JJA agreeing); and Newell; Muriniti v De Costi(2018) 97 NSWLR 398; [2018] NSWCA 49 (Newell) (at [76], per Beazley P, as Her Excellency then was).
[47]Relevantly, those principles include: that the jurisdiction is to be exercised “with care and discretion and only in clear cases” (Lemoto at [92](a); Kelly at [60]; Newell at [76]); that, in considering whether to make a wasted costs order arising out of a lawyer’s conduct of court proceedings, full allowance must be made for the exigencies of acting in that environment and only when, with all allowances made, a legal practitioner’s conduct of court proceedings is quite plainly unjustifiable is it be appropriate to make such an order (Lemoto at [92](d); Ridehalghat 236); … that, in exercising the jurisdiction, consideration is to be taken of the public interest reflected in the legislative provisions, namely, that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their, or their opponent’s, lawyers (Lemoto at [91]; Kelly at [60]; and Ridehalgh at 226); and that the procedure to be followed in determining applications for wasted costs must be fair and “as simple and summary as fairness permits”.
73․Usually a three-stage approach is utilised, namely: first, to ask whether the solicitor acted improperly, unreasonably, or negligently; second, if so, to ask whether that conduct caused the applicant to incur unnecessary costs; and third, if so, is it just to order the solicitor to compensate the applicant for the whole or any part of the relevant costs. See also Brereton JA in Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151 at [22] (Meagher and Leeming JA agreeing).
74․In relation to the first and second steps, Mr Emmott draws attention to observations made by Loukas-Karlsson J in her Honour’s judgments in MWP Nos. 8, 9 and 10. Mr Emmott submitted:
64. In No 8 Loukas-Karlsson J said at [53]:
"None of the material the applicant has advanced before me has persuaded
me that had the material been available to me at the hearing on 21 July
2022 I would have been required to make a different order. Nor, to adopt
the (potentially) lower test, does any of the material amount to a material
change of circumstances. None of the material would alter any of the
findings I made in Wilson (No 6) that led to the order for security for costs
being made."
65. In No 9 Loukas-Karlsson J said at [90]-[102]:
"90. In my view, the applicant should be required to pay the sixth
respondent's costs on an indemnity basis. This is the case for the
following reasons.
91. First, while it could not be said that the applicant had no chance of
success in all of the applications, the applicant's overall conduct has
had the effect of unduly prolonging the proceedings. As I have noted
on previous occasions, the applicant has often attempted to advance
broader arguments related to other litigation. This has included
extensive discussion of proceedings in the United Kingdom, the High
Court, the NSW Supreme Court and Court of Appeal and the Federal
Court.
92. Many of these arguments were wholly irrelevant to the issues before
this Court, which was dealing with what should have been, on each
occasion, a narrow interlocutory issue. In that regard, I note that the
applicant provided thousands of pages of material to the Court, much
of which was not relevant. Similarly, the applicant advanced
submissions that were, at times, unbecoming of an admitted
practitioner who has overarching duties to the Court. I will address
this in more detail below.93. In terms of the issues advanced at the oral hearings, the applicant
also had a significant tendency to seek to re-agitate the same or
similar points, prolonging the proceedings through what were, at thispoint, undoubtedly groundless or irrelevant contentions. For
example, the applicant had advanced submissions at the hearing on
the security for costs application relating to whether the sixth
respondent could appear conditionally. I dealt with this issue in
Wilson (No 6) at [88] effectively finding that that issue was a matter
for the Court of Appeal hearing the ultimate application and that, in
any event, there appeared to be a sound basis for the conditional
appearance in this Court (at least at the interlocutory stage).
Nevertheless, the applicant persisted in advancing similar arguments
at the hearing on costs, indeed arguing that the conditional
appearance was improper and disentitled the sixth respondent to an
order for costs. Such an argument was wholly without merit and
ignored my earlier findings. That the applicant persisted in repeatedly
re-arguing and re-agitating issues, issues that the applicant had not
sought leave to appeal from, demonstrates the applicant's overall
conduct in the proceeding and significantly increased the hearing
time necessary to deal with the issues before the Court.
94. Running repeated and protracted arguments on irrelevant issuessignificantly increased the costs the parties faced in litigating what
was on each occasion a narrow interlocutory question. In that regard
I note the applicant's submission that MWP defended the security for
costs application on a narrow basis, namely that MWP had
significant assets in Australia and was a net creditor. On review of
the transcript of the hearing on 2 May 2022 and 21 July 2022, that
narrow defence could not have been said to be the basis for many of
the applicant's submissions. In my view, it was unreasonable for the
applicant to subject the sixth respondent to the level of costs involved
in what was, on its face, a narrow question.
95. Second, in at least some of the applications it could only be said that
the applicant, (f properly advised, should have realised that there was
no chance of success. The clearest (but not only) example of this is
the applications relating to the notices to produce. As I noted in
Wilson (No 5) the notices to produce sought documents including
documents related to the litigation in the United Kingdom (Category
4) and relating to Federal Court proceedings (Category 7, noting that
NDS 428 of 2020 and NSD 767 of 2021 are Federal Court proceeding numbers) that could not have been relevant to the questions before
this Court: see Wilson (No 5) at [38]. As I outlined at [42]-[46]:The central argument advanced by the applicant as to the
relevance of the documents sought by the notice to
produce was that they are relevant to the question of the
costs estimate underpinning the claim for $22,500 in
security for costs. The notice to produce, however, is far
broader than would be required to answer that question.
The documents sought cover correspondence over a
decade and which, on their face, have no relevance to
this proceeding.
In particular, the notice to produce requires documents
relating to this proceeding or the proceeding below dating
back to 2015 (and in one case 2012). Those documents
could not be sensibly said to be relevant either to the
questions before the Court now, or the questions that will
be before the Court at the hearing of the application for
leave to appeal.
The categories of documents sought in the application are
also extremely vague. Notices to produce impose onerous
obligations on parties and require documents to be
produced relatively quickly. Given those obligations, the
Court expects that notices are carefully drafted to ensure
they are directed to relevant and clearly defined
categories such that parties can comply with their
obligations and so that the Court can determine when a
party has failed to comply with their obligations.
In relation to the question of privilege, I note that Mr
Wilson advanced an argument that in addition to
appearing for the applicant he was appearing qua a
number of other individuals/entities (namely the first to
fifth respondents). I understand that such a claim was
advanced to counter the suggestion by the sixth
respondent that some documents were privileged and
could not be produced.
Without needing to decide whether Mr Wilson has
acquired the rights that he claims or whether any such
acquisition could ever defeat a claim for privilege (both
propositions that appear doubtful to say the least), again
the central issue with the applicant’s suggestion is the
scope of documents that could be relevant to the issue
before me or the issue that will be before the Court when
hearing the substantive leave to appeal application.(emphasis added)
96. Similar points may be made with regard to the applicant’s application
to set aside the security for costs order. The applicant at the hearing
had argued that the judgment of Judge Pelling KC setting aside the
worldwide freezing order meant that there was no basis for the
security for costs order. This submission fundamentally failed to
grapple with the original security for costs judgment, which had
expressly not been based on the existence of any worldwide freezing
order.97․ Third, similar to the behaviour of the applicant in the Federal Court,
the applicant advanced unsubstantiated allegations against the
counsel and solicitors acting for the sixth respondent. Similar to the
approach taken by Stewart J in Wilson (FCA Costs) outlined above, I
will not repeat them in this judgment. Suffice to say that there was no
evidence advanced supporting the various personal attacks made of
counsel and solicitors. The repeated attacks served to needlessly
extend the Court hearing and increase the costs incurred by the sixth respondent. That attacks were repeated after stern warning from the
Court, including over multiple hearing days is unacceptable andunbecoming of an admitted practitioner.
98․ While overall not every argument the applicant advanced was
hopeless, in my view, the significant volume of irrelevant material and
irrelevant submissions and personal attacks and repeated raising of
previously dismissed arguments has led to the sixth respondent
incurring an unnecessary and unreasonable amount of legal
expenses. The applicant’s conduct is such that, in my view, the only appropriate order is one for indemnity costs.99․ In summary, I am satisfied that the features of this case are such that
it was unreasonable for the applicant to have subjected the sixth
respondent to the costs the sixth respondent has had to incur in
prosecuting and defending a series of interlocutory applications.100․ In reaching that conclusion I have noted the comments of Elkaim
J and Hodgson CJ regarding the rarity of an indemnity costs order in
the context of a self-represented party. In that regard, I note that
counsel for the applicant is a currently admitted practitioner in
multiple jurisdictions with significant experience. He is not akin to a
formerly practicing solicitor, but rather runs his own law firm in
Kazakhstan. Indeed, the sixth affidavit of Mr Wilson sworn on 14
September 2022 included the following summary of his experience:… I previously worked with Herbert Smith Freehills and
Baker McKenzie, in Sydney, Australia, as to the latter of
which I was an international equity and capital partner,
and founder of the most successful group of new offices
(five (5) in total), in the entire history of that firm, anywhere in the world.I am an admitted solicitor of the Supreme Courts of New
South Wales and Victoria, Australia and a solicitor of the
Supreme Court of England and Wales.
101․ Plainly Mr Wilson could not be described as the usual self-
represented party. He is a practicing lawyer with significant
experience, on his own evidence.102․ Further, the applicant persisted in running irrelevant arguments
and making personal attacks over multiple hearing days and
following warnings from the bench regarding time estimates. In my
view, the facts of this case can be distinguished from those before
Elkaim J and Hodgson CJ.”
66. And in No 10 Loukas-Karlsson J said at [105]-[111]:
"105. In relation to costs, the sixth respondent sought costs on an
indemnity basis. I dealt with the principles to apply in relation to whether to order indemnity costs in Wilson (No 9). It is worth setting out, in part,
the test outlined in Melbourne City Investments Pty Ltd v Treasury
Wine Estates Ltd (No 2) [2017] FCAFC 116 (Melbourne CityInvestments) at [5]:
... Such circumstances may include where allegations are
made "which ought never to have been made", where the
case is "unduly prolonged by groundless contentions" ...
and where “the applicant, properly advised, should have
known that he had no chance of success” … or “persists
in what should on proper consideration be seen to be a
hopeless case” …
106․ At the hearing of the application, I asked the applicant if there were
any submissions to advance in reply in relation to the question of
indemnity costs (T32.11-12). In reply, counsel for the applicant
repeated the general submissions which I have already rejected in
relation to the basis of the order, the reference to the second
addendum, made allegations of misconduct (which I will not
repeat) and that there was no basis to the order as the applicanthad permanent assets in Australia.
107․ It is apparent, in my view, that the applicant’s application
generally repeated the arguments already advanced in his first
application to set aside the order for security for costs. The
reagitating of those issues, in circumstances where the applicant
had not sought leave to appeal from my earlier judgment, is a
matter that justifies an order for indemnity costs on that
application. Put simply, the applicant, properly advised must have
been aware he had no prospects of success on the application in circumstances where the matters the applicant was relying on had
previously been determined by the Court adversely to theapplicant.
108․ The sixth respondent is entitled to its costs of and incidental to the
hearing of the applicant’s application to set aside the order for
security for costs on an indemnity basis. Similar reasoning applies
in relation to the issue of compliance. That matter was not one the
sixth respondent should have been forced to incur expenses
prosecuting. The correspondence to the applicant had
foreshadowed the matter being raised and had provided a clear
opportunity for the applicant to rectify the situation by making the
requested amendment (or to seek some minor amendment to the
order by consent). The applicant, properly advised, would haveknown there were no prospects of success.
109․ Finally, I again note the applicant’s propensity to advance
personal attacks directed to counsel for the sixth respondent and
the instructing solicitor. Allegations of that kind must not be made
by admitted practitioners against other admitted practitioners
without clear and compelling evidence. No such evidence was
advanced before me. The applicant has been previously warned in
relation to the making such allegations by the Federal Court of
Australia and this Court. That matter forms an independent basis,
in my view, for ordering indemnity costs as allegations were made
“which ought never to have been made”: Melbourne City
Investments at [5]. The sixth respondent should not be put to any
cost in respect to the agitating of those allegations.110․ In that regard I also note the comments of Stewart J in Wilson v
Porter (No 2) at [30]-[31]:
These reasons for judgment, as well as many others in this
Court and courts abroad, including in the Court of Appeal
of England and Wales, have been critical of Mr Wilson’s
conduct of this and other related cases on behalf of MWP.
Mr Wilson is a principal of MWP and apparently has a
financial interest in it. He has pursued, and continues to
pursue, this and related litigation on MWP’s behalf in an
obsessive, unrelenting and burdensome way which is,
perhaps, borne of his personal interest in it. None of thatneed be explored any further, let alone decided, now.
However, a question arises whether in any further
litigation by MWP in Australian courts Mr Wilson should
continue to appear on its behalf, or represent it as a
solicitor, having regard to the principles identified in Bell
Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333
at [19]; Kallinicos v Hunt [2005] NSWSC 1181; 64
NSWLR 561 at [76]; McIlraith v Ilkin (Costs) [2007]
NSWSC 1052 at [25]; Mumbin v Northern Territory (No
2) [2020] FCA 475 at [39]; Dyer v Chrysanthou (No 2)
(Injunction) [2021] FCA 641; 402 ALR 659 at [138] and
Porter v Dyer [2022] FCAFC 116; 402 ALR 659 at [113]-
[114]. See also r 17.1 of the Legal Profession Uniform
Law Australian Solicitors’ Conduct Rules 2015 (NSW)
which requires that a solicitor representing a client in a
matter that is before the court must not act as the mere
mouthpiece of the client and must exercise the forensicjudgments called for during the case independently.
111․ In my view, it may be open at this stage for this Court to
find that Mr Wilson is not in a position to give impartial
and independent advice to the applicant: McIlraith v Ilkin
(Costs) [2007] NSWSC 1052 at [25] and is acting as a
mere mouthpiece for his personal interest and grievance
against the sixth respondent and the legal advisors to the
sixth respondent. As such the power to restrain Mr Wilson
from continuing to act for the applicant may be enlivened
both in terms of the Court’s inherent powers but also from
the operation of rr 17.1 and 27.2 of the Legal Profession
(Solicitors) Conduct Rules 2015 (ACT). In my view, it may
be open to the Court to make an order restraining Mr
Michael Earl Wilson from continuing to act for the
applicant in this proceeding, or in any matter before the
Court. Such an order is, however, an exceptional one and
not one to be made lightly. In circumstances where the
parties did not advance submissions on the question it isnot appropriate at this time to make such an order.
75․Reading those observations, it is apparent that her Honour took the view that Mr Wilson’s overall conduct unduly prolonged the proceedings. Her honour observed that Mr Wilson:
(i) often attempted to advance broader (and irrelevant) arguments related to other litigation;
(ii) tendered thousands of pages of irrelevant documentary evidence, advanced submissions that were, at times, unbecoming of a solicitor;
(iii) exhibited a significant tendency to seek to re-agitate the same or similar points thereby prolonging the proceedings through what were groundless or irrelevant contentions; and
(iv) advanced unsubstantiated allegations against the counsel and solicitors acting for Mr Emmott.
76․Such conduct obviously significantly increased the time, cost and expense incurred by Mr Emmott in the applications concerned, as is apparent from a reading of her Honour’s judgments. Some legitimate points were advanced by Mr Wilson, but those points were minor in terms of the time and cost involved.
77․Mr Wilson submitted that the conduct referred to did not amount to a serious dereliction of duty, gross negligence, misconduct, or negligence necessary to found a costs order. I disagree. The matters described by her Honour and summarised at [74] above meet those descriptions and justify the making of the personal costs order.
78․In my view it is appropriate that Mr Wilson be ordered to pay 80% of the costs incurred. That assessment is necessarily broadly evaluative, but I think reflects both the observations of Loukas-Karlsson J and assessment of the issues as revealed in the balance of the judgments concerned.
79․I shall turn to Mr Wilson’s submissions and why I did not accept them.
80․MWP’s counsel, who also appeared on behalf of Mr Wilson, submitted that these applications should have been made to Loukas-Karlsson J promptly (i.e. soon after the indemnity costs orders were made) and submitted that if I were to proceed to hear the applications, Mr Wilson would not have the opportunity to address his conduct before the relevant judicial officer, and would not have the opportunity to address that conduct in a prompt and orderly fashion. I do not agree.
81․Whilst Loukas-Karlsson J would have the greater background knowledge of the applications concerned, it is well established that personal costs orders should not be threatened or sought at a time when they might be perceived as being made in terrorem, and her Honour’s judgments are more than detailed enough to assess the conduct of Mr Wilson in this case.
82․True it is that, in this case, such a threat might not have given rise to the type of personal interest/duty conflict referred to in Muriniti v Kalil [2022] NSWCA 109 at [46], but nevertheless the threat of making a personal costs order might otherwise affect a solicitor’s proper advancement of his client’s case even where the solicitor is the director and guiding mind of the client as in this case.
83․Mr Wilson had the opportunity to address his conduct in the application before me, and chose not to do so. He swore two affidavits which were read and the exhibits (totalling 456 pages) to those affidavits were tendered but none of that addressed his conduct. Rather, other than a few paragraphs dealing with the gross sum costs application, the balance of the affidavits was taken up repeating arguments made and rejected by Loukas-Karlsson J.
84․MWP submitted in the alternative that I could not make any assessment of Mr Wilson’s conduct without receiving the whole of the evidence before Loukas-Karlsson J and reading the whole of the transcript of evidence and submissions made. MWP submitted that the material before me, in essence the judgments of Loukas-Karlsson J, did not “rise to the threshold of the application”. The submission was encapsulated in the following oral submission by Mr Wilson’s counsel:
Well, quite, but the overarching difficulty is, you don’t have the evidentiary material before you which is sufficient to justify crossing the threshold and making a personal costs order against Mr Wilson. The reliance upon what is said by Loukas-Karlsson J does not rise to the threshold of the application.
85․I understood that submission to convey three things. First, there was no objection to me receiving the judgments of Loukas-Karlsson J. Second, the failure by Mr Emmott to tender before me all of the evidence before Loukas-Karlsson J meant that, in effect, Mr Emmott had failed to prove his case. Third, Mr Emmott’s reliance on the judgments of Loukas-Karlsson J (without the evidence which had been before her Honour) was insufficient for him to prove his case.
86․I do not accept those submissions.
87․First, no authority was cited supporting the submission that all of the evidence before Loukas-Karlsson J would have to be before me.
88․Second, to accept those submissions would make the exercise of the costs jurisdiction in cases like this unworkable and it is contrary to the requirement that the procedure be “as simple and summary as fairness permits”: NHB at [47].
89․That is not to say that Mr Wilson was prevented from tendering some of the evidence or submissions which had been before Loukas-Karlsson J if it was relevant, and, indeed, he did (in the sense of trying to again prove that Mr Emmott was a net debtor of MWP). But Mr Wilson’s submission went further. However, in my view, if the material before me was sufficient to make the order (which in my view it was), even if that material was limited to the judgments of Loukas Karlsson J, then I see no impediment to making the order.
90․At the conclusion of oral argument leave was granted to Mr Wilson to subsequently provide any authorities on the question whether the evidence before me should be the entirety of the evidence admitted on the applications before Loukas-Karlsson J. The leave granted was as follows:
HIS HONOUR: Did you want a few days, Mr Buckland, to have a look to see whether there's any authority saying that, on an application of this sort before me, what should be the evidence that should be led is all the material before Loukas-Karlsson J?
91․What was subsequently provided was something different. An email to my Chambers was received in the following terms:
Pursuant to the leave granted by Curtin AJ to provide further authorities on the question of whether the facts underlying a decision of a Court need to be separately proved, the Appellant provides reference to the following authorities:
1.Ainsworth v Burden [2005] NSWCA 174 at [109] per Hunt AJA (with whom Handley and McColl JJA agreed).
2.Daunt v Daunt [2015] VSCA 58 at [57]-[59].
3.Prothonotary of the Supreme Court of NSW v Sukkar [2007] NSWCA 341 at [9].
4. King v Muriniti [2018] NSWCA 98 at [17]-[26].
92․The submission made in the chapeau to the email was not made orally or in writing in the application before me, no leave was granted to provide submissions raising new points and I dismiss it on that basis.
93․However, I wish to say that the authorities cited do not support the submission. Ainsworth v Burden [2005] NSWCA 174 (Ainsworth), Daunt v Daunt [2015] VSCA 58 (Daunt) and Prothonotary of the Supreme Court of NSW v Sukkar [2007] NSWCA 341 (Sukkar) are not relevant to the issues before me other than they discuss s 91 of the Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic). Those sections are relevantly identical to s 91 of the Evidence Act 2011 (ACT) which is in the following terms:
91Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding.
(2)Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.
94․Ainsworth concerned the admissibility of five judgments of the Licensing Court in a Supreme Court proceeding for defamation. Daunt concerned the admissibility of a determination of the Victorian Civil and Administrative Tribunal (refusing the appellant’s application to declare his mother incapable pursuant to s 43 of the Guardian and Administration Act 1983 (Vic)) in Supreme Court proceedings concerning allegations of undue influence over and unconscionable conduct toward his mother. Sukkar concerned whether the detailed facts found in the Court of Criminal Appeal judgment against the practitioner (convicted of being knowingly concerned in the importation into Australia of narcotic goods) were admissible in proceedings to have practitioner struck off the roll.
95․Of relevance to the issue before me was King v Muriniti [2018] NSWCA 98; 97 NSWLR 991 (King), because it concerned the admissibility of earlier judgments on applications for personal costs orders against practitioners. It does not support the submissions made.
96․King concerned an application for a personal costs order against a solicitor pursuant to s 99 of the Civil Procedure Act 2005 (NSW) (the CPA). Section 99 relevantly said:
99Liability of legal practitioner for unnecessary costs
(1)This section applies if it appears to the court that costs have been incurred:
(a)by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b)improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
(2)After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following:
(a)it may, by order, disallow the whole or any part of the costs in the proceedings:
…
(ii) in the case of a solicitor, as between the solicitor and the client,
(b)it may, by order, direct the legal practitioner:
…
(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,
(c)it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.”
97․In King, Basten JA, with whom Gleeson JA agreed, held that s 91 of the Evidence Act did not apply to applications for orders under s 99 of the CPA. That was because s 91 refers to two proceedings: the original proceedings and the later proceedings in which the earlier decision or findings of fact are sought to be tendered. Basten JA reasoned that an application for a personal costs order against a practitioner is not a separate proceeding. Rather, his Honour held at 1001 [37] that the costs order application against the practitioner is part of the proceedings between the original parties.
98․At 1002 [45] his Honour held:
Given the nature of the jurisdiction conferred by s 99 of the Civil Procedure Act, in my view s 91 of the Evidence Act has no operation. Indeed, it would be a technicality to require one of the parties to proceedings for a third party costs order to tender as evidence the judgment of the court in the substantive proceedings. The judgment does not need to be tendered for the court to take into account and place reliance upon the findings it had made in the substantive proceedings.
99․Basten JA also held at 1001 [40], as I have held, that a practitioner is entitled to give evidence and call evidence and make submissions as to the appropriate inferences to be drawn from the circumstances revealed in the relevant earlier judgment(s).
100․As s 91 of the ACT Evidence Act is identical to s 91 of the NSW Evidence Act, and for the same reasons as expressed by Basten JA, I would hold that s 91 of the Evidence Act 2011 (ACT) does not apply to applications for personal costs orders brought against practitioners under r 1753.
101․In relation to the Court’s inherent jurisdiction, Basten JA held at 1001 [36] that s 91 did “not interfere with the existing disciplinary jurisdiction” of the Court with respect to legal practitioners. I would apply the same reasoning to this Court’s inherent jurisdiction.
102․I note that King was subsequently followed in Muriniti; Newell v Lawcover Insurance Pty Ltd (No 2) [2018] NSWCA 311 at [138], Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 per Bell P at [15] (Gleeson JA and Emmett AJA agreeing) and by Mossop J in Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 7) [2024] ACTSC 15 at [10] (Nova Builders).
103․In Nova Builders Mossop J said at [10]:
Applications for costs orders against non-parties are usually dealt with by the trial judge: Bahai at 1342, 1346; Symphony at 193; Clarence City Council at [114]; Deutsche Bank at [17]. They are summary in nature in the sense that the judge would make an order based on the evidence given and facts found at trial together with an assessment of the behaviour of those involved in the proceedings: Deutsche Bankat [17]. An application for a costs order against a non-party is part of the overall process by which orders are made by the court at the conclusion of the trial and it does not involve some different or separate proceeding: Bahai at 1342, Deutsche Bank at [17], Muriniti at [37], [97]. The justification for adopting a summary procedure is that the non-party had a close connection of some kind with the proceedings: Symphony at 193; Deutsche Bank at [17]. Where that is not the case, then it is less likely to be fair to treat the application as a mere adjunct to the trial of the action in which the target of the costs order is bound by the evidence given at trial and the trial judge’s findings of fact: Symphony at 195, 196; Clarence City Council at [114]; Deutsche Bank at [17]. A non-party is entitled to appear, be heard and adduce evidence in opposition to the making of such an order.
104․Therefore, it is not the case that Mr Emmott was required to prove (before me) all of the facts appearing in the judgments of Loukas-Karlsson J.
105․Mr Wilson next submitted that if I was being asked by Mr Emmott to rely upon Loukas-Karlsson J’s findings (which Mr Emmott made clear in written submissions I was) I needed to “parse carefully the findings and why they were made, the purpose for which they were made”.
106․Mr Wilson submitted that there had been an overlap by Loukas-Karlsson J in the identification of the applicant (MWP) and the conduct of Mr Wilson personally. It was submitted that her Honour did not draw a distinction and say, ‘It is the conduct of Mr Wilson personally that caused these things to happen’. It was submitted that her Honour made findings in relation to the conduct of MWP relevant to the question whether indemnity costs orders should be made, and her Honour was not concerned with whether the conduct of Mr Wilson personally justified a personal costs order.
107․I agree that her Honour was concerned with issues other than personal costs orders, but that does not make her Honour’s findings as to Mr Wilson’s conduct irrelevant. It was Mr Wilson’s conduct in advocating against the indemnity costs orders which were before her Honour (and other orders such as provision of security, the notices to produce etc.) which drew her Honour’s attention and caused her Honour to make the findings her Honour did. And it is those findings which form the basis of Mr Emmott’s personal costs order application.
108․Her Honour’s findings are clear, and MWP and Mr Wilson were at liberty to place before me any evidence or oral or written submissions which were either before Loukas-Karlsson J, or other evidence explaining Mr Wilson’s conduct, but they did not do so. I am not necessarily bound by her Honour’s findings as to Mr Wilson’s conduct, but I would give her Honour’s findings and observations the respect they deserve.
109․Such an approach occurs in other types of applications, such as applications to declare someone a vexatious litigant. In Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12 I said the following at [19]-[20]:
Second, in NSW, there were a number of first instance decisions in which it was held that it was necessary for the court considering an application under the Vexatious Proceedings Act 2008 (NSW) to form its own judgment about each proceeding said to satisfy the definition of “vexatious proceedings”, but that in doing so the court may take into account the findings and views expressed by the judicial officers who resolved each of the proceedings.
Subsequently, in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (Teoh), at [53]-[54], the NSW Court of Appeal held that ordinarily the court that heard and decided the earlier proceedings will have been best placed to determine whether those proceedings were an abuse of process or instituted without reasonable grounds. However, the Court said that the seriousness of the consequences of making a vexatious proceedings order leaves it open to the court hearing an application for the declaration to depart from findings made in earlier proceedings. However, the Court said that in the ordinary course it would require very persuasive material to justify such a departure.
110․I think the same approach applies in an application of this sought and I note that in King Basten JA said at 1000 [33] that the Vexatious Proceedings Act2008 (NSW) provided an example of a statute which was inconsistent with s 91 of the Evidence Act and impliedly constrained its operation. The same applies in the ACT in relation to s 67A of the Supreme Court Act 1933 (ACT).
111․In this case, there being no evidence led by Mr Wilson to counter Loukas-Karlsson J’s findings as to his conduct, and having read her Honour’s judgments and forming the view that the findings were soundly based, I adopt those findings.
112․Mr Wilson submitted I should not exercise my discretion to make the order sought because of the delay in bringing the application and the resultant prejudice caused by that delay. I do not accept that submission. The only alleged prejudice identified was the deleterious effect on witnesses’ memories, but as there were no witnesses as to past contested facts no such prejudice arose.
113․Mr Wilson submitted that Mr Emmott had already been sufficiently compensated for the expense to which it was put in relation to the applications before Loukas-Karlsson J through the grant of the indemnity costs orders. In my view that is no reason not to make the order sought. No authority of which I am aware, and none was cited to me, supports such a submission as a reason not to make a personal costs order. In any event, the making of a costs order does not of itself compensate the other party, only the successful execution of such an order would do so.
114․MWP submitted that the observations made by Loukas-Karlsson J were made in the context of the applications before her Honour, and not in the context of an application for personal costs orders. Whilst the submission is true, that does not mean that certain findings of fact relevant to the applications before Loukas-Karlsson J are not relevant to the application before me. That is particularly so in relation to her Honour’s findings as to Mr Wilson’s conduct. Indeed, I would have thought they were particularly relevant since the conduct of Mr Wilson under present examination was his conduct when appearing before Loukas-Karlsson J.
115․Lastly, Mr Wilson submitted that if I were to make a personal costs order against him, that the order be made on the basis of a joint and several liability together with MWP. The purpose of such an order, Mr Wilson submitted, would be to prevent Mr Emmott recovering the same (or much the same) costs twice.
116․I will not make such an order. No such order was made in any of the costs authorities to which I was directed. In any event, it is plain that Mr Emmott cannot be compensated twice over, and if Mr Emmott attempted to do so, an urgent application could be brought in this court to prevent such occurring.
Costs
117․MWP has failed in its application and should pay the costs of it.
118․Both MWP and Mr Wilson have failed in their opposition to the sixth respondent’s application and should pay the costs. I assess 70 percent of that application to concern MWP and 30 percent to concern Mr Wilson.
Orders
119․I make the following orders:
(1)The applicant’s application filed 8 October 2024 is dismissed.
(2)The applicant is to pay the sixth respondent’s costs of that application.
(3)The indemnity costs orders made by Loukas-Karlsson J on 9 December 2022 and 24 February 2023 are assessed on a gross sum basis in the total sum of $70,480.
(4)The costs order made by Curtin AJ on 17 April 2024 is assessed on a gross sum basis in the sum of $43,453.
(5)Michael Earl Wilson, the applicant’s solicitor, is to pay to the sixth respondent 80 percent of the costs for which the applicant is liable and which are referred to in orders 3 and 4 above.
(6)MWP is to pay 70 percent of the sixth respondent’s costs of the sixth respondent’s application filed 9 September 2024.
(7)Michael Earl Wilson, the applicant’s solicitor is to pay 30 percent of the sixth respondent’s costs of the sixth respondent’s application filed 9 September 2024.
| I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin Associate: Date: 24 January 2025 |
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Amendments
14 March 2025 Omit “21 June 2023” and substitute with “2 February 2024”. Paragraph: [9]
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