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

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

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

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

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

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