Michael Wilson & Partners Ltd v Emmott (No 4)

1. [1]

   THE COURT: Michael Wilson & Partners Ltd (MWP) is a company incorporated in the British Virgin Islands. Mr Michael Earl Wilson is a solicitor, with an entitlement to practise in New South Wales, although he resides in Kazakhstan. For many years, there has been litigation between MWP and the respondent, Mr John Forster Emmott. It is unnecessary to summarise that litigation, and to do so would substantially add to the length of these reasons to no useful end.

2. [2]

   MWP brought four applications which are before the Court as presently constituted. Two are applications to review interlocutory decisions of Judges of Appeal ordering modest amounts of security for costs against MWP in respect of appeals or applications for leave to appeal which MWP has brought from orders made in separate proceedings in the Equity and Common Law Divisions of this Court. The other two are applications by MWP to adjourn MWP’s own applications for review. In each case – save for an aspect of further written submissions concerning a complaint about a failure of one judge to recuse himself, which is addressed at the conclusion of these reasons – Mr Wilson appeared for MWP.

3. [3]

   We dismissed the adjournment applications at the hearing on 20 June 2025 indicating that we would give reasons later; our reasons are at [14]-[25] below. We proceeded to hear the applications for review of the decisions to order security for costs. Unfortunately, it was necessary for the Court to obtain and supply to the parties a copy of the transcript of the application for security for costs before McHugh JA because it had not been tendered at the hearing before us and there was a dispute about what the judge had disclosed and whether Mr Wilson on behalf of MWP had made an application for recusal which was refused. Although this Court made directions for the swift exchange of submissions, MWP did not comply with them, and when submissions were supplied, they gave rise to a very serious issue. All this has delayed delivering judgment.

4. [4]

   The most recent aspects of the litigation, which give rise to the four applications made to this Court, may be summarised as follows. They derive from orders made by the Supreme Court in its Equity Division, constituted by Hammerschlag CJ in Eq, and its Common Law Division, constituted by Schmidt AJ.

5. [5]

   MWP sought an account of benefits received by Mr Emmott as a partner of “the Temujin Partnership”. On 26 August 2024, that claim was set down for trial in the Equity Division, over the opposition of MWP, on 18 November 2024. MWP sought leave to appeal from that decision, but its application was dismissed: Michael Wilson & Partners v Emmott [2024] NSWCA 269. MWP made various attempts to vacate that hearing. They failed. On 13 November 2024, MWP filed a motion seeking to vacate the hearing, which was made returnable on the first day of the trial. That application, and a further application made on that day, were refused after argument (MWP being represented by senior counsel who seems to have been retained only to appear on the applications, rather than the final hearing), for reasons that were given shortly thereafter: Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott – Final [2024] NSWSC 1489. Hammerschlag CJ in Eq wrote at [72]-[78]:

6. [6]

   Substantively, Hammerschlag CJ in Eq proceeded to dismiss MWP’s partnership claim, giving reasons for doing so at [79]-[90]. Judgment was entered in favour of Mr Emmott.

7. [7]

   MWP seeks leave to appeal, to the extent leave is necessary, from each of the refusals to grant an adjournment on 18 November 2024, as well as from the dismissal of its claim. Its summons was filed on 19 February 2025.

8. [8]

   Mr Emmott promptly sought security for the costs. There was a hearing which commenced on 31 March 2025 but was extended to 14 April 2025 “to allow MWP to put on evidence in support of its claim that it had assets in Australia” (see Basten AJA’s reasons at [20]). On 15 April 2025, Basten AJA ordered that MWP provide security for Mr Emmott’s costs, in the amount of $15,000, within 28 days, and stayed the proceedings until that security has been paid: Michael Wilson & Partners Ltd v Emmott (No 3) [2025] NSWCA 74.

9. [9]

   The first and second applications before this Court are MWP’s application for review, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW), of the order for security for costs made by Basten AJA, and MWP’s application to adjourn the hearing of that application for review. Both are motions in proceeding 2024/449432.

10. [10]

    Separately from the above, on 2 February 2024, a Registrar made orders registering some judgments MWP had obtained overseas. Schmidt AJ made orders on Mr Emmott’s application on 10 October 2024 and 12 November 2024 setting aside some of the orders recognised by the Registrar, and staying the proceedings: Michael Wilson & Partners Limited v Emmott [2024] NSWSC 1258 and Michael Wilson & Partners Limited v Emmott (No 2) [2024] NSWSC 1435. There is a dispute between the parties as to the precise effect of what both the Registrar and her Honour did, and nothing in these reasons should be taken to express a view on any aspect of that dispute. MWP sought leave to appeal, by summons filed on 20 January 2025. There is a question whether MWP needs an extension of time, and once again it is unnecessary and inappropriate to express a view on that issue.

11. [11]

    On 18 February 2025, Mr Emmott filed a notice of motion seeking security for costs, and following a hearing on 10 March 2025, on 14 March 2025 McHugh JA ordered that security in the amount of $20,000 be lodged within 14 days, with the proceedings being stayed until that occurred: Michael Wilson & Partners, Limited v John Forster Emmott [2025] NSWCA 37.

12. [12]

    The third and fourth applications before this Court are MWP’s application for review, pursuant to s 46(4) of the Supreme Court Act, of the order for security for costs made by McHugh JA, and MWP’s application to adjourn the hearing of that application for review. Both are motions filed in proceeding 2024/416114.

13. [13]

    MWP read no fewer than ten affidavits in support of the applications before the Court. All were made by Mr Wilson. There was some overlap. Much of what was said turned out to be controversial. Hundreds of pages of documents were tendered. However to anticipate what follows, three important things were absent:

    1. (1)

       Despite the applications being about security for costs of appellate proceedings brought by a British Virgin Islands company whose solicitor was based in Kazakhstan, and despite important aspects of the reasoning of both judges addressing the difficulties of enforcing any adverse costs order against assets in Australia, there was no clear evidence of any such assets.

    2. (2)

       Despite Mr Wilson’s repeated submission that both appeals had strong prospects of success, neither the evidence which had been before each of Hammerschlag CJ in Eq or Schmidt AJ nor any submissions in support of those appeals was placed before the Court.

    3. (3)

       Despite the first ground of review of the orders made by McHugh JA being a claim that he should have recused himself, there were no reasons for any refusal to recuse, nor indeed the transcript of what had occurred. At the end of the hearing on 20 June 2025, there was a large dispute about what McHugh JA had disclosed and whether Mr Wilson had made an application that his Honour should recuse himself.

The applications to vacate its own application to review the orders for security for costs

1. [14]

   As had occurred at first instance before Hammerschlag CJ in Eq, on 2 June 2025 MWP applied to vacate its own applications for review of the security for costs orders made by Basten AJA and McHugh JA. MWP claimed that it had very strong prospects of obtaining relief at a two day hearing, set down in London on 5 and 6 August 2024, as a result of which the position that Mr Emmott owed millions of pounds to MWP would be made clear. Mr Wilson said this was “directly relevant to the issue of security for costs because when we have the declaration, which we’re confident of getting shortly after 6 August, [be]cause the evidence is overwhelming, it will be clear that, that that is the case” (Tcpt 20 June 2025, T6.31-34).

2. [15]

   Both substantive proceedings in this Court (appealing or seeking leave to appeal from the orders made by Hammerschlag CJ in Eq and Schmidt AJ) were themselves stayed by reason of MWP’s failure to provide security. One of the curiosities of this litigation is that on the one hand MWP has failed to provide security thereby causing its own appeals to be stayed, while on the other hand MWP has sought to review the orders for security for costs but did not wish its review applications to proceed on the allocated hearing date.

3. [16]

   We mention this because a question arose whether the effect of the extant stay following upon the failure to provide security had any impact on the motions presently before the Court. After hearing from the parties, we were of the view that the stays conditionally ordered by each of McHugh JA and Basten AJA could not have the effect of denying the party directly affected by those orders its statutory entitlement to seek review under s 46(4) of the Supreme Court Act. Any other conclusion would permit the order made by the Court constituted by a single Judge of Appeal to frustrate the right of review conferred by statute. Another way of putting this is that it could not be correct that a party, in order to avail itself of a right of review of an order that it pay security for costs, must first comply with that order before it can be reviewed. There is some similarity with the point made by Basten JA in Mohareb v Palmer (No 3) [2021] NSWCA 39 at [11], in the context of an order under the Vexatious Proceedings Act 2008 (NSW):

4. [17]

   Finally, incidental to that entitlement is that party’s entitlement, in an appropriate case, to seek relief to adjourn the hearing of its application for review.

5. [18]

   After hearing from the parties on that point, we advised the parties that we were of that view: Tcpt 20 June 2025, T13.38-45.

6. [19]

   We proceeded to complete the hearing of MWP’s applications to adjourn the hearing of its review applications. We made orders dismissing those applications shortly following argument at the hearing, indicating that we would provide reasons in due course. Our reasons are as follows.

7. [20]

   First, it is (to put it mildly) far from self-evident that MWP’s complete success following a two day hearing before an English court is assured. The fact that the matter is listed with an estimate for two days suggests some measure of complexity and contestability. The pleadings or other process, evidence and submissions before the English court were not before this Court, even if it were (which we very much doubt) appropriate for this Court to predict the outcome of the litigation in the English court.

8. [21]

   Secondly, we fail to see how an order made by, or reasons for judgment given by, the English court, will materially bear upon the strength or otherwise of the applications to review orders for security for costs in pending appeals brought by MWP.

9. [22]

   Thirdly, acceding to the applications would inevitably cause delay and increase costs, contrary to the duties imposed on the Court by s 56 of the Civil Procedure Act 2005 (NSW).

10. [23]

    Fourthly, we bear in mind how low the stakes are. The applications sought to be vacated are MWP’s own applications to review decisions of two Judges of Appeal to order modest amounts of security for costs of MWP’s applications for leave to appeal from separate judgments of the Common Law Division and the Equity Division of this Court. Section 60 of the Civil Procedure Act has particular relevance to all four applications brought by MWP, and especially its doubly adjectival applications to vacate the hearing of its applications to review orders to provide security for costs. This Court is obliged to implement its practice and procedure with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. The importance and complexity of applications to review orders for security for costs is relatively trivial. The amount of litigants’ resources being spent and court time being consumed to challenge the obligation to provide small amounts of security, which will only not be returned to MWP in the event that an adverse costs order is made against it, is grossly disproportionate. Mr Wilson has read no fewer than ten affidavits in support of the applications, and most are long (they comprise 142, 48, 55, 32, 19, 122, 24, 89, 32 and 19 paragraphs) because Mr Wilson seems unable to write directly when a more prolix alternative is available (examples are given below).

11. [24]

    Fifthly, MWP is subject to a duty to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) of the Civil Procedure Act. The real issues are whether the decisions of Schmidt AJ and Hammerschlag CJ in Eq are attended by appellable error. That is well removed from the orders of security for costs, and still further removed from the question when its applications to review the orders of security for costs should be heard.

12. [25]

    For those reasons we dismissed the notices of motion both filed on 2 June 2025 to vacate the hearing, and proceeded to hear the applications for review. Mr Baird flagged an intention to seek a special costs order, and the directions below will permit that application to be made.

The applications to review the orders for security

1. [26]

   Although the order made by McHugh JA preceded that made by Basten AJA by around one month, there was considerable overlap in the issues, and much of the oral submissions addressed the issues common to both decisions collectively (including Mr Emmott’s alleged indebtedness and MWP’s readily realisable assets in Australia). In what follows we shall to the extent possible adopt the same course. We shall then turn to the reasons of Basten AJA, because the application to review McHugh JA’s order for security gave rise to separate issues and the need for supplementary submissions after the hearing.

2. [27]

   An application under s 46(4) is not an appeal. It has been generally accepted that the applicant for review must show that, in the decision sought to be reviewed, there has been a material error of law or fact, or a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: McGinn v Cranbrook School [2016] NSWCA 226 at [1], [4] and [42]; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [4] and [6]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [22].

3. [28]

   A series of decisions has noted the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal’s order set aside: see without being exhaustive Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]; Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14]; Lo v Iverarch [2009] NSWCA 92 at [29]; Collier v Lancer [2013] NSWCA 185 at [20] and Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67 at [20].

4. [29]

   The decisions to order security for costs are discretionary, and matters of practice and procedure. The principles governing review and the heavy burden upon applicants in such cases in the authorities summarised above loom large in connection with the review of orders for security for costs.

5. [30]

   MWP is a company incorporated in the British Virgin Islands, and is a prime candidate for an order for security for costs. Indeed, as Mr Wilson acknowledged during the hearing, MWP has in the past regularly provided security for costs.

6. [31]

   At least some of the underlying decisions which are the subject of the application for leave to appeal are discretionary decisions of practice and procedure (notably, the two decisions by Hammerschlag CJ in Eq to decline to vacate the hearing). It is self-evident that those decisions involve no question of principle or public importance, which would mean that the Court will not ordinarily grant leave absent a strong case.

7. [32]

   Nonetheless, Mr Wilson maintained that MWP had a very strong case. The short answer to that is that although the assertion was advanced forcefully and repeatedly, he did not explain why it was so clear that each of Schmidt AJ and Hammerschlag CJ in Eq had fallen into error. It was difficult to do so, because the written submissions and appeal books which would assist in establishing MWP’s case were not before us. Despite the hearing taking a full day, in which Mr Wilson addressed for the large majority of the time, his oral submissions did not attend to this. Indeed, 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.

8. [33]

   Squarely relevant to each application for security for costs was the extent to which Mr Emmott could readily enforce any costs order in his favour against assets of MWP in Australia. Despite the volume of material supplied, there was no documentary evidence addressed to this issue.

9. [34]

   Mr Wilson said, repeatedly, that MWP had long banked with an Australian bank (St George), but did not provide any evidence of the current balance. Indeed, and notwithstanding the criticisms by McHugh JA and Basten AJA of the evidence said to support the existence of MWP’s assets, and the supply of voluminous evidence which had not been before either McHugh JA or Basten AJA, the evidence did not include the bank statement. It did not even include testimonial evidence of the balance. Instead, we received the same financial statements of MWP which were summarised by McHugh JA at [23]-[25] and Basten AJA at [32]-[34] of their reasons.

10. [35]

    This was squarely and repeatedly raised with Mr Wilson during the hearing. Mr Wilson maintained that MWP should not have to provide security because Mr Emmott owed it large amounts of money, leading to the following exchanges. First, at Tcpt 20 June 2025 T36.5-25:

11. [36]

    After further submissions, Mr Wilson was again invited to direct the Court to the evidence which established assets in Australia (Tcpt 20 June 2025, T38.16-19), whereupon he took the Court to the IFRS financial statements which had been tendered before each of McHugh JA and Basten AJA, following which there was this exchange (Tcpt 20 June 2025, T40.22-37):

12. [37]

    Mr Wilson then moved to a different topic. He was accorded a further opportunity after the luncheon adjournment to identify up-to-date evidence of Australian bank accounts, and he attempted to do so (Tcpt 20 June 2025, T42-46). But there is, so far as we can see, no up-to-date evidence of what amount of money, if any, MWP has in any Australian bank account in its name.

13. [38]

    Mr Wilson maintained at some length that MWP owned many judgment debts, which were recognised and enforceable in this jurisdiction. Let that be assumed, favourably to MWP. The fact that MWP owns those assets does not answer the issue presented by Mr Emmott’s applications for security for costs, which is whether MWP has assets against which any costs order could readily be enforced.

14. [39]

    The evidence fails to establish that MWP owns any readily realisable assets in Australia in 2025. However, it does establish that MWP has a large secured debt to its lender.

15. [40]

    The restrained conclusions of McHugh JA at [24] that “there is doubt whether it has assets within the jurisdiction, or otherwise, easily and conveniently available to satisfy a costs order” and of Basten AJA at [35] that “there is reason to believe that, if unsuccessful in obtaining leave, MWP will be unable to pay the costs of the respondent” and “it has no assets in Australia against which an order could be enforced” are unassailable. On the evidence before this Court, they are plainly correct. Even if there is (as Mr Wilson repeatedly said during his address) significant money in an Australian bank account, there is at least a question whether it is subject to an existing security, and in the event that an adverse costs order is made and is enforceable, there must be a risk that MWP will transfer all such funds outside Australia.

16. [41]

    If there were any error in the decisions made by McHugh JA and Basten AJA to order security for costs, then this Court would re-exercise the discretion, based on the evidence before it. Enough has been said already to establish that even if there were error, this is a plain case for an order for security in at least the amounts ordered by their Honours. MWP is an overseas company which has not supplied up-to-date evidence of any assets owned by it in Australia, which on the evidence has granted security over all of its assets, and which has repeatedly brought applications in this Court seeking to appeal from a wide range of orders, none of which have on the material before us been shown to be anything more than reasonably arguable. It is palpably obvious that MWP ought to be ordered to supply security for costs against the possibility that some or all of its appeals fail. Indeed, in light of the time and resources spent on the applications for review, and the manner in which MWP at least when represented by Mr Wilson conducts litigation, it is more than possible that we would order larger amounts of security for Mr Emmott’s costs.

17. [42]

    In short, even if error had been established requiring this Court to re-exercise the discretion, we would have ordered security, and it would not have been in a lesser amount.

18. [43]

    Even though nothing turns on it, we shall address the individual grounds of review, although we shall do so relatively concisely:

    1. (1)

       Paragraph 8(a) complains that Basten AJA failed to “record, recite and accept the fact that there are very many judgments, rulings, orders, default and final costs certificates in favour of MWP”. They are not directly relevant to whether an overseas company should be permitted to appeal without providing security for costs. The same paragraph complains that the evidence “proves beyond all doubt that not only does MWP have assets in Australian, but has very significant assets in Australia since it is trite law and accounting that, of course, receivables comprise assets”. But the relevant question, which was the question posed by Basten AJA, is whether there are Australian assets against which a costs order could be enforced.

    2. (2)

       Paragraph 8(b) maintains that it was trite law that MWP has an appeal as of right. But [37] and [38] of Basten AJA’s reasons distinguished the interlocutory orders refusing to vacate the hearing, from which an appeal lies with leave, from the final orders made by Hammerschlag CJ in Eq. In any event, if there were an appeal as of right, that would not greatly alter the exercise of discretion concerning an order for security for costs.

    3. (3)

       Paragraph 8(c) complains that Basten AJA erred in failing to accept that based on the IFRS Financial Statements and various judgment debts, MWP was in good financial standing, has a strong financial position and significant assets in the jurisdiction. This is addressed above.

    4. (4)

       Paragraph 8(d) reiterates the point that MWP owned receivables, as well as other assets said to be in Australia. As noted above, Mr Wilson was unable to point to evidence establishing Australian assets against which a costs order could be executed.

    5. (5)

       Paragraph 8(e) complains that Basten AJA failed to accept and find that Mr Emmott is impecunious. This is not relevant. It also complains that he has no liability for costs. He has an Australian solicitor and counsel, and MWP has not established that they are not entitled to be paid, at least contingently.

    6. (6)

       Paragraphs 8(f), (g) and (h) complain about his Honour setting aside a notice to produce. It appears that the notice was not tendered before us. But (as was raised with Mr Wilson at Tcpt 20 June 2025, T29.21) it is difficult to see how this could materially bear upon the order the subject of review.

    7. (7)

       Paragraph 8(i) complains that Basten AJA “erred in failing to find and accept that it could never be just, fair, equitable or right to require MWP to provide security in favour of the Respondent in circumstances where MWP is the very clear overall winner in the Emmott and Temujin Partnership fraud litigation”. This is not how the discretion to order security for costs is exercised.

    8. (8)

       Paragraph 8(j) complains that Basten AJA erred in failing to find that “MWP’s appeal has substantial merit, involves points of importance and principle, has utility and good prospects of success …”. This has been addressed above.

    9. (9)

       Paragraph 8(k) complains that Basten AJA was wrong to find that Mr Wilson’s medical evidence was “repetitive, unfocused and hard to assess”. That evidence was not before the Court, and so it is impossible to assess whether Basten AJA’s characterisation was wrong.

    10. (10)

        Paragraphs 8(m), (n) and (q) reiterate complaints about the failure to find MWP owns substantial assets in Australia, which are answered by what has already been said.

    11. (11)

        Paragraph 8(o) asserts that “Basten AJA is wrongly and myopically focused in arguing the Respondent’s case for him and for no good and proper reason, without properly, justly and fairly considering the overall truth and reality between the parties”. We note that an application that Basten AJA recuse himself was made, and refused (see Michael Wilson & Partners Ltd v John Forster Emmott (No 2) [2025] NSWCA 59), and was not challenged as part of this review. Otherwise, passing over its discourtesy, a ground which appeals to “overall truth and reality” is not a valid mode of legal submission.

    12. (12)

        Paragraphs 8(l) and (p) complain that Basten AJA erred in failing to find that by a series of assignments Mr Emmott is a judgment debtor of MWP. Even if that were made out, which is contentious, that is no answer to a claim for security for costs, bearing in mind the entitlement of Mr Emmott’s law firm to the benefit of such a costs order.

    13. (13)

        Paragraph 8(r) is conclusionary, paragraph 8(s) complains about a separate order made by Basten AJA, paragraph 8(t) complains about costs, while the final and 21st ground of review purported to reserve the right to “supplement, vary and amend this Notice”.

19. [44]

    The application to review the orders made by McHugh JA attracted no fewer than 25 grounds. Many overlapped with those summarised above, especially concerning what was to be inferred from the IFRS financial statements and the absence of evidence of Australian assets against which a costs order could be enforced. Some of the grounds were near equivalents. For example, ground 8(c) of the motion to review McHugh JA’s orders resembled 8(a) of the motion to review Basten AJA’s order. Those grounds were, respectively:

20. [45]

    Similarly, ground 8(m) of the motion to review McHugh JA’s orders resembled 8(i) of the motion to review Basten AJA’s order. Those happen to be two of the most verbose grounds. The grounds in all occupied nearly six pages (in the case of the application to review orders made by Basten AJA) and slightly more than six pages (in the case of McHugh JA).

21. [46]

    Some of the grounds challenged rulings on evidence, which were not sought to be developed during the hearing. One was a complaint about whether an extension of time was required, but that did not materially affect the discretion.

22. [47]

    Three classes of grounds deserve separate mention. Paragraph 8(r) complains of a failure to find that Mr Emmott misled Schmidt AJ. That is a serious finding, not lightly to be made on an interlocutory application such as this. In any event, the materials on which that conclusion was said to rest were not before this Court.

23. [48]

    Paragraph 8(b) complains that on 14 March 2025, when the matter was listed for judgment, “MWP connected in time by Cisco Webex” but was “left waiting online and never allowed into the hearing”. It was also said that “a prior version of the judgment of 14.03.25 was handed down and provided to the Respondent, but the same has not been provided to MWP, in breach of its rights”. This was not developed by Mr Wilson in the hearing, and was raised by the Court in the afternoon as to whether it was pressed. Mr Wilson did not abandon it. There is nothing in the point. MWP was free to attend in Sydney by local practitioner to receive judgment. MWP was also perfectly entitled not to attend and have the judgment emailed to its lawyers. If there was a technological difficulty at the time judgment was delivered, nothing turns on it. It is not suggested that Mr Wilson did not rapidly receive by email a copy of the judgment. The judgment posted on CaseLaw records that it was amended on the day it was handed down, with the annotation “14 March 2025 – ‘Parties’/‘Representation’ – correction”. That annotation does not identify what the amendment in fact was, but whatever it was, it is plain that it was not material to the order made.

24. [49]

    Much more serious than the foregoing was the first ground of review of McHugh JA’s decision. That ground was as follows:

25. [50]

    Nothing need be said about the aspect of this ground that McHugh JA should have recused himself because, without more, his father had at some time acted as a mediator (we note it is not suggested that there was any sharing of confidential information, which would have been the subject of a mediation agreement). The other bases of this ground are conceivably relevant.

26. [51]

    Despite the volume of material supplied by MWP, the transcript of what occurred before McHugh JA had not been provided. That led to an exchange at the end of the hearing which, despite its length, should be reproduced in full:

27. [52]

    The essential points are that Mr Wilson was put squarely on notice of Mr Baird’s recollection that after McHugh JA had raised his own former involvement in having been briefed to appear for MWP, and disclosed some involvement of his wife, there had been an adjournment following which Mr Wilson advised he would not press an application for recusal. That of course is consistent with the absence of any reasons from McHugh JA explaining why he had rejected Mr Wilson’s application. Mr Wilson was also on notice of the Court’s view that bringing an application that a judge failed to recuse himself for apprehended bias was a very serious thing, and that if it turned out that Mr Baird’s recollection was correct, that would be an end of the matter.

28. [53]

    At the conclusion of the hearing on 20 June 2025, the Court ordered:

29. [54]

    The transcript was obtained and supplied to the parties on 23 June 2025.

30. [55]

    Mr Baird’s recollection was correct.

31. [56]

    The transcript of the hearing before McHugh JA on 10 March 2025 records the following, at the outset of the hearing, which, in light of its importance, warrants reproduction in full:

32. [57]

    It is clear beyond argument that Mr Wilson in an informed way, after an adjournment, confirmed that MWP had no application to make based upon McHugh JA having been retained many years ago, or on the current involvement of his Honour’s wife in other proceedings.

33. [58]

    Mr Emmott made those points succinctly in submissions supplied in accordance with the Court’s direction. His submissions were emailed to the Court at 1.24pm on Tuesday 24 June 2025 by Mr Emmott’s solicitor, copying in Mr Wilson and “Yermek Aubakirov”, both of whom had email addresses ending “@mwp.kz”. His submissions concluded:

34. [59]

    Mr Emmott’s submissions also stated that the application for review “ought accordingly to 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”.

35. [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.

36. [61]

    MWP’s submissions were not signed, but they conclude as follows:

37. [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.

38. [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.

39. [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.

40. [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.

41. [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.

42. [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.

Orders and conclusion

1. [68]

   For those reasons, MWP’s motions filed on 28 March and 30 April 2025 should be dismissed. We note that each of those proceedings is presently stayed, in light of the failure by MWP to provide the security ordered. There is no reason why costs should not follow the event.

2. [69]

   The outstanding issues concern Mr Emmott’s application for a special costs order, an opportunity for an explanation from Mr Thomas, and an opportunity for Mr Wilson to explain why the papers should not be referred to the Legal Services Commissioner. The directions below address those issues.

3. [70]

   The Court’s orders, in each of proceedings 2024/416114 and 2024/449432, are as follows:

Email Correspondence with Mr Wilson after Judgment Reserved

1. [71]

   Judgment was reserved on 20 June 2025, subject to leave granted to supply by email to the Associate to Leeming JA submissions not exceeding five pages, within three working days after the parties’ receipt of the transcript of proceedings before McHugh JA, confined to paragraph 8(a) of the notice of motion which was that McHugh JA should have but failed to recuse himself.

2. [72]

   On the morning of 23 June 2025, the Associate to Leeming JA sent both parties a copy of the transcript of the proceedings before McHugh JA on 10 March 2025.

3. [73]

   On 23 June 2025 at 11.39am, Mr Wilson sent the Associate the following email:

4. [74]

   The Associate responded to Mr Wilson on 24 June 2025 at 12.12pm as follows, attaching the transcript from 14 March 2025:

5. [75]

   On the same day, at 1.24pm, the respondent sent the following email to the Associate, attaching submissions:

6. [76]

   On 25 June 2025 at 10.52pm, Mr Wilson sent the Associate the following email:

7. [77]

   The Associate responded the following day at 11.40am as follows:

8. [78]

   Mr Wilson responded that day at 5.33pm:

9. [79]

   The next day, 27 June 2025 at 10.51pm, Mr Wilson sent a further email to the Associate, attaching written submissions:

10. [80]

    On 1 July 2025 at 10.56pm, Mr Wilson sent the following email to the Associate:

11. [81]

    The Associate confirmed receipt at 4.13pm on 2 July 2025. At 5.45pm on the same day, the Tipstaff sent the following email:

12. [82]

    On 3 July 2025, at 11.19pm, Mr Wilson sent the Tipstaff the below, attaching a transcript in respect of a decision of McHugh JA in relation to a notice to produce:

13. [83]

    At 3.04pm on 7 July 2025, Mr Wilson sent the below, attaching a certified copy of the McHugh JA judgment and his previous email: