Federal Court of Australia

Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005

ORDERS

THE COURT ORDERS THAT:

1.    The applicant shall as soon as possible, and in any event by 29 August 2025, retain a lawyer in Australia to be the lawyer on the record in these proceedings with an address in Australia at which documents can be served and emails received.

2.    The applicant not be permitted to take any further step in these proceedings after 29 August 2025 if the step required by Order 1 has not occurred.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOORE J:

1    The applicant, Michael Wilson & Partners, Ltd (MWP), is a law firm based primarily in Kazakhstan. Mr Michael Earl Wilson of that firm had a falling out with other lawyers of the firm some years ago, including Mr John Forster Emmott who is the respondent to these proceedings. The resulting dispute has led to a very large number of proceedings in Australia and elsewhere, and an extraordinary level of disputation. There have been more than 80 judgments in proceedings brought by MWP against Mr Emmott alone. There are many other proceedings, including against other former lawyers of MWP.

2    These particular proceedings are bankruptcy proceedings. MWP issued a bankruptcy notice to Mr Emmott dated 26 July 2024 and filed a Creditor’s Petition against Mr Emmott on 2 October 2024. In filing the Creditor’s Petition, MWP purported to act on its own behalf and also in various other capacities, including as trustee. Mr Emmott has opposed the Creditor’s Petition on various grounds. I have made an order for separate determination of issues concerning challenges to jurisdiction and to service in advance of the remaining issues, which primarily concern set-off and solvency, on the basis that they are distinct issues. The remaining issues will likely require a detailed consideration of the history of the litigation and other disputes between the parties.

3    The Creditor’s Petition identifies the “law firm” acting for MWP as MWP itself, and the lawyer as Mr Wilson. It is signed by Mr Wilson, who is identified as “Solicitor & Corporate Legal Representative” for MWP. It provides the Kazakhstani email address of Mr Wilson (and also two other email addresses in his office) and identifies the physical address for service as “c/o Law Image Pty., Limited”. Law Image Pty Limited is a legal document management and legal technology company, not a firm of solicitors.

4    To date, Mr Wilson has had carriage of the proceedings on behalf of MWP and has appeared for MWP at all case management hearings. Mr Wilson is a solicitor with a current Australian practising certificate but is based in Kazakhstan. This approach has led to some practical challenges and has been somewhat unsatisfactory (and will be unsatisfactory at the final hearing) for a number of reasons.

5    First, it has meant that case management hearings have been listed at 3:15 pm (because Mr Wilson is in a very different time zone) and Mr Wilson appears by audio visual link. There are occasional transmission problems.

6    Secondly, the hearings to date have not been conducted by Mr Wilson in a manner which is expected of practitioners in this Court or in a manner which is consistent with ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Mr Wilson frequently interrupts me, speaks over the top of me (and his opponent), speaks when he has been asked by me not to speak, and raises numerous argumentative matters that are irrelevant to the efficient preparation of the matter for hearing on the questions for separate determination. Mr Wilson frequently makes observations about what he sees as the underlying merits of the position as between MWP and Mr Emmott, including observations about findings against Mr Emmott by other judges (often in other jurisdictions), that Mr Emmott has been found to be substantially indebted to MWP, that Mr Emmott has no assets left, and that Mr Wilson has been found to be a witness of truth in other jurisdictions. The failure by Mr Wilson to confine his submissions to relevant matters and to conduct the proceedings in an efficient manner has caused case management proceedings to last for an hour or two, when they should be much shorter.

7    Thirdly, Mr Wilson has sent a raft of contentious emails on substantive matters to my Chambers without first seeking the consent of the legal representatives for Mr Emmott for that correspondence, or even notifying them in advance that it is being sent.

8    Fourthly, Mr Wilson is a witness in the proceedings and has been required for cross-examination. That presents difficulties for Mr Wilson continuing to appear for MWP as a result of the operation of r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Conduct Rules). Mr Wilson has now apparently realised that he cannot appear for MWP, and is taking steps to retain a barrister to appear at the hearing of the separate determination.

9    Fifthly, Mr Wilson is not only a witness in the proceedings, but has an interest in the outcome of the proceedings.

10    Sixthly, an issue has arisen recently regarding email communications. Mr Wilson claims that he has not received any emails sent by the solicitor for Mr Emmott, Mr Duggan, since 29 July 2025. That was the date on which Mr Duggan sent a letter to Mr Wilson drawing his attention to the operation of r 27 of the Solicitors’ Conduct Rules and informing him that the matter would be raised with the Court. Mr Duggan has given evidence that other people copied to his emails are receiving them. It is only Mr Wilson (and employees of MWP) who seem unable to receive the emails. That breakdown in email communications is causing challenges for the efficient preparation of the matter, including the preparation of the Courtbook. It is impossible to know on the material before the Court whether emails are not getting through, or what might be causing any such breakdown in email communications: for example, whether some filter on MWP’s email server or at its service provider has identified Mr Duggan as the sender of spam, whether a problem has arisen at some other point of transmission between Sydney and Almaty, or whether the problem is at Mr Duggan’s end, as Mr Wilson suggests. However, the practical reality is that there is no other readily available means by which Mr Duggan can get materials to Mr Wilson, including because Mr Wilson is located in Kazakhstan.

11    Until very recently, the hearing of the issues for separate determination was listed to commence at 10:15 am (AEST) on 20 August 2025. On the morning of 18 August 2025, MWP applied to adjourn that hearing, so as to enable MWP to retain counsel, including so as to accommodate the process of briefing counsel and the preparation of submissions by that counsel. I granted that request for an adjournment the same day. The hearing is now fixed for 25 September 2025.

12    Mr Emmott seeks an order that MWP retain an Australian lawyer with an address in Australia at which documents can be served and emails received. MWP opposes such an order. The basis identified by Mr Wilson for MWP’s opposition is that it will lead to additional costs for MWP.

13    The order sought by Mr Emmott is appropriate and will be made, for the following reasons.

14    First, it is a requirement of the Federal Court Rules 2011 (Cth) (Federal Court Rules). Rule 11.01 relevantly provides as follows:

(1)    An address for service for a party must include the address of a place within Australia at which a document in the proceeding may, during ordinary business hours, be left for the party and to which a document in the proceeding may be posted to the party.

(2)    If a party is represented by a lawyer who has general authority to act for that party, the address for service for the party must be the address of the lawyer.

…

15    The combination of those rules means that the current situation whereby Mr Wilson is acting as the lawyer for MWP, but has nominated the address of a document management company as the physical address for service, is not permissible. The address of Law Image Pty Ltd is not the address of Mr Wilson. It is clearly not “the address of the lawyer” within the meaning of r 11.01(2). That alone is a sufficient basis for the order sought by Mr Emmott.

16    Secondly, as evidenced by his conduct in the proceedings to date, Mr Wilson has an interest and involvement in, and attachment to, the underlying dispute between the parties which is incompatible with his role as an independent and impartial adviser to MWP: Bell Lawyers Pty Limited v Pentelow (2019) 269 CLR 333 at [18] – [19] (Kiefel CJ, Bell, Keane and Gordon JJ). The Court has an inherent jurisdiction to restrain a solicitor from acting when that solicitor lacks the necessary independence or impartiality: Kallinicos v Hunt (2005) 64 NSWLR 561 at [76]ff (Brereton J); Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [39] (Griffiths J). There is debate as to whether the relevant test for restraining a solicitor from acting is whether a fair-minded, reasonably informed member of the public “would” or “might” conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice: Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116 at [113] – [114] (Besanko, Lee and Abraham JJ); Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 at [136] – [142] (Thawley J). The authorities also emphasise that the Court should exercise caution before making an order restraining a solicitor from acting, because it prevents a person from having the lawyer of that person’s choice, and can potentially cause the party to the proceedings to lose the benefit of the investment it has made in the lawyer and the knowledge of the lawyer in question.

17    In the present case, the order sought by Mr Emmott is less draconian than an order preventing Mr Wilson from acting per se. The order sought by Mr Emmott will not prevent Mr Wilson from providing legal services to MWP, and MWP will not be deprived of his knowledge of the disputes with Mr Emmott. However, by requiring another lawyer to be nominated, it will ensure that MWP is represented at least by an independent and impartial representative, and that Mr Emmott and the Court can have the benefit of dealing with such a person.

18    Thirdly, it is not appropriate that the representative of MWP communicate with my Chambers, or conduct matters in Court, in the way that has hitherto occurred. As well as involving conduct that should not be engaged in by any officer of the Court, it is conduct that is inconsistent with ss 37M and 37N of the Federal Court Act.

19    Fourthly, it is not appropriate or acceptable that, in seeking to prepare the present matter for hearing (including serving evidence, responding to requests for documents, serving submissions, finalising the Courtbook, and sending correspondence), the solicitor for Mr Emmott is unable to communicate by email with the legal representative of MWP (regardless of the reason for that), or deliver physical or electronic documents to an Australian address of a lawyer or law firm rather than a document management company.

20    The authorities cited above do not establish a particular test for an order of the kind sought by Mr Emmott, and indeed no particular barrier arises where it is a requirement of the Federal Court Rules. In any event, having regard to the circumstances set out in these reasons, even if it was not required by the Federal Court Rules, I am satisfied that the present case is an appropriate case for the relevant order. The only basis for opposing the order identified by Mr Wilson is one of costs. The relatively minimal prejudice to MWP of having to incur some additional costs is very significantly outweighed by the matters identified above, including the interests of justice in preventing the communication with Chambers, communication with the other party, and conduct of interlocutory matters by a person who lacks independence or impartiality including because the person has an interest in the outcome of the proceedings and is to be a witness who is cross-examined in the proceedings, and as evidenced by his behaviour in the proceedings.

21    In those circumstances, I propose to order that MWP retain as soon as possible, but in any event within seven days, a lawyer in Australia with an address at which documents can be served and emails received, and who will be the lawyer on the record. I also indicate that, unless there is some urgent matter pertaining to the conduct of the proceedings that arises in the meantime, henceforth, there will no longer be the provision of an audio visual link for appearances (as opposed to observation) at any hearings.

Associate:

Dated:    22 August 2025