Federal Court of Australia

Michael Wilson & Partners, Ltd v Emmott (No 2) [2025] FCA 1185

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 5 September 2025 be dismissed, with costs.

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

REASONS FOR JUDGMENT

MOORE J:

1    On 22 August 2025, I gave judgment and made orders in relation to the representation of the applicant (MWP) in these proceedings: Michael Wilson & Partners, Ltd v Emmott [2025] FCA 1005 (my previous judgment). These reasons need to be read with my previous judgment. I ordered that:

(a)    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; and

(b)    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,

(the Orders).

2    I gave a number of reasons for the Orders.

3    MWP has not complied with Order 1. No lawyer in Australia has become the lawyer on the record. I am not aware of MWP taking any steps to appeal the orders, and correspondence received from MWP suggests that it has not.

4    Instead, and contrary to Order 2, on 18 September 2025, MWP filed an interlocutory application dated 5 September 2025, together with two supporting affidavits of Mr Wilson. Some written submissions were later filed on 22 September 2025. The written submissions are not signed by any person, but purport to be from MWP.

5    The interlocutory application seeks the following relief (reproduced from the application):

(a)    to rescind, set aside and/or vary the order of Moore J of 20.08.25, the judgment of Moore J at [2025] FCA 1005 of 22.08.25, the further order of Moore J of 22.08.25, the determinations made therein with retrospective force and effect, in accordance with Rules 17.01(1), 39.05, and the inherent jurisdiction of the Court;

(b)    to recall, reconvene and reopen the hearing of 20.08.25;

(c)    to require the Respondent to file and serve an application, a draft of the order sought, evidence and submissions relied upon in seeking orders to require MWP to retain an Australian lawyer, for such lawyer to go on the record, with an address in Australia, in place of Mr Wilson as MWP’s Solicitor, Corporate Legal Representative, and its attorney; and

(d)    such further orders and directions as the Court sees fit.

6    MWP also seeks that the hearing fixed for 25 September 2025 be converted into an oral hearing of MWP’s interlocutory application, and that Mr Wilson be permitted to appear on video from Kazakhstan for that purpose. In my previous judgment at [21], I indicated that online appearances would no longer be permitted:

…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.

7    As noted above, the filing of the interlocutory application, supporting affidavits and submissions are themselves the taking of steps in the proceedings in breach of Order 2 made on 22 August 2025. Nevertheless, given that MWP is seeking to impugn the making of that very order, I have decided that I will not prevent MWP from being heard and will consider MWP’s interlocutory application. However, I decline to permit Mr Wilson to appear from Kazakhstan on video for the purpose of making oral submissions, having regard to: (a) the matters set out in my previous judgment; (b) that the Court ordinarily conducts proceedings in person and is not obliged to permit practitioners to appear by audio visual link from other countries; and (c) that MWP has taken the opportunity to set out its position and make submissions in writing at some length. I have therefore determined the interlocutory application on the basis of the written materials.

8    In addition to the materials identified above, the Court also received brief written submissions from Mr Emmott and an affidavit of Mr Duggan. The written submissions say that the two affidavits of Mr Wilson should be rejected. However, I will admit them, but only for the purpose of MWP’s interlocutory application to set aside the orders in my previous judgment.

9    The applicable principles on an application to set aside an interlocutory order were conveniently summarised in Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121 at [26] (Jagot J):

The question whether the interlocutory orders should now be varied in light of the true factual position has to be determined by reference to the relevant principles. Those principles were not in dispute.

•    A court has jurisdiction to vary or set aside any interlocutory order but the re-litigation of issues already decided, even on an interlocutory basis, is undesirable having regard to the need for finality (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46).

•    The “overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case” (Brimaud at 46).

•    The interests of justice should be assessed having regard to the nature of the interlocutory order in question. Interlocutory orders that are merely procedural or made by consent without any contest are different from substantive orders made after a contested hearing and intended to operate until the final hearing. In the latter case the general rule is that there must be a material change in circumstances or the discovery of new material which could not reasonably have been put before the court on the earlier application (Brimaud at 46).

•    There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49], namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

...one or more of the following factors has occurred or is satisfied:

(a)    there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made...;

(b)    there has been a material change in the circumstances since those orders were made;

(c)    there are exceptional circumstances which warrant re-consideration of the matter...; and

(d)    as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter...

10    In the present case, the submissions of MWP do not identify any material change of circumstances. With one exception, they do not suggest that there is new material or new evidence which was not available previously (the one exception is that MWP seeks to rely on further analysis about the cause of the email difficulties). The submissions do not seek to demonstrate exceptional circumstances.

11    More generally, the submissions do not engage with most of the reasons given in my previous judgment for the making of the Orders. For example, they do not discuss the application of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) at all. They say nothing about the conduct outlined in my previous judgment, or the position of Mr Wilson.

12    The nature of the submissions advanced by MWP may be gleaned from the following extract:

8. The Directions Order and the Further Order were based upon PJD-1, which was only lodged on 19.08.25, and which the Judgment Debtor had no leave to file and serve.

9. As set out and explained in MEW-4 and MEW-5, there is now no doubt that PJD-1 is and was always materially false, misleading and inaccurate, and should never have been made sworn, filed and served.

10. As MWP has now shown and proven through the careful, detailed and technical investigation and work of its IT specialists and experts in relation to the email log exhibited to PJD-1, as explained and set out in MEW-4 and MEW-5, it can now be very clearly seen that there is and never was any doubt that the outbound email problems of Mr Duggan since 29.07.25 were always at his end and his fault, so that PJD-1 should never have been drafted, made, filed and served, as it was.

11. More particularly, Mr Duggan never had any basis for his false and misleading assertion, as set out in paragraph 8 of PJD-1 that MWP had somehow and allegedly “blocked his emails”, when it never had and never would, and where the email log Mr Duggan exhibited showed on its face that his email server had failed to connect to MWP’s server, and he was required to “try again”.

12. As set out and explained in MEW-4 and MEW-5, MWP and its IT specialists and experts explained the very real and serious problems since 29.07.25 with his outbound email and system to Mr Duggan, but he has entirely failed to even reply, let alone to engage and take any steps to fix, cure and remedy the same, as he is and always was obliged to do, including as a solicitor and officer of the Court.

13. As also explained in MEW-5, and as the record shows and proves, since 2016, when required by the former ad-hoc arbitral tribunal to bring and commence the Temujin Partnership inspection, disclosure, inquiry, account and proprietary tracing proceedings in Australia because of the Judgment Debtor’s cynical and deliberate destruction of the hard-disc drive of his MWP laptop computer in the middle of the night on 30.06.06 at the offices of the Temujin Partnership, destruction of much other documents and data, refusal to allow inspection and failure to provide disclosure, as required by the Tribunal’s procedural orders, failure to bring witnesses and refusal to allow joinder, all for no good and proper reason, as MWP has proven to the satisfaction of the EWCA by its judgment of 31.01.18 at [2018] EWCA Civ 51, and the judgment/order of Lords Reed, Hodge and Lloyd-Jones in the UKSC of 31.07.18, with costs in favour of MWP, as reciprocally recognised in Australia on 02.02.24 by the judgment/order of SDR P. Clayton, MWP has always used Messrs Law Image P/L of 50 Pit Street in Sydney as its address for service, and also more generally as its local agent, so that there is and never was any merit in the suggestion and submission that MWP has failed to maintain an address for service in the jurisdiction and/or that MWP has refused to allow Messrs Law Image P/L to accept service on its behalf, as the Judgment Debtor falsely contended at the hearing on 20.08.25, and as was wrongly set out in PJD-1. Having failed to even transmit and send any emails to MWP from 29.07.25, Mr Duggan also failed to provide and serve the same on MWP at Messrs Law Image P/L, which speaks volumes.

14. As the Court is also aware and explained in MEW-4 and MEW-5, Mr Wilson of MWP is not only the solicitor and corporate legal representative of MWP, but also acts for, represents and appears in the name of and for and on behalf of MWP in these proceedings pursuant to a power of attorney under which he is duly authorised to act on behalf of MWP. In such circumstances, MWP is in effect self-represented and chooses to be so, and which has served MWP very well and worked very successfully for MWP.

15. In such circumstances, it is and always was entirely improper and wrong for Messrs Duggan and Baird to suggest that MWP could not continue to do so and that it was not entitled to do so, and further that MWP must appoint solicitors and the like, especially where the Judgment Debtor refuses and has failed to pay his HCA judgment debts to MWP and owes MWP tens of millions of dollars, being MWP’s judgment debtor and debtor in all jurisdictions for decades, as the record now shows and proves, and as is explained in detail in MEW-4 and MEW-5. Since 17.06.22, the Judgment Debtor has been unable to show and prove he is owed any monies, and on the contrary, HHJ Pelling KC in the EWHC, as upheld by Popplewell LJ in the EWCA and as recognised by SDR P. Clayton in the NSWSC, have found and held that the Judgment Debtor owes MWP very significant monies and not the other way around. Seeking to force and cause MWP to incur the very substantial further time and material cost of instructing counsel and solicitors in such circumstances is and was unjust, unfair and had no proper basis, given enormous sums of final and binding judgment debts owed by the Judgment Debtor to MWP. Quite clearly, seeking to exclude Mr Wilson was entirely tactical and a yet further effort by the Judgment Debtor to try to stop MWP enforcing its HCA judgment debts, and to once again waste MWP’s time, monies and costs, and to delay his inevitable fate, like that of all of hits Temujin Partners since early 09.05 to date, Messrs Nicholls and Slater in this Court, and of Mr Sinclair, his Sokol Partner and funder, before him in all of the UK, NZ, the Bahamas and Arizona, the USA.

16. In the UK and the BVI, as well as in New Zealand, the Judgment Debtor acts and appears for himself, and is only at the present time in Australia that he purports to be represented by Messrs Baird and Duggan, although in truth and reality they are his “partners” and “fellow stakeholders” being entirely contingent and to whom there is no evidence he has ever made any payments, so that they are “interested parties”, with a self-confessed vested interest in the outcome and in seeking to extort, gouge and extract monies from MWP. It cannot be fairly and properly said that Messrs Baird and Duggan are, in reality, acting merely as counsel and solicitors in the traditional sense at all. In similar circumstances, on 18.06.24, as explained in MEW-4 and MEW-5, all of the Judgment Debtor’s alleged arbitration liability and quantum phase costs were all disallowed, because with similar arrangements in place, as those with Messrs Baird and Duggan, despite giving personal undertakings to the Court and MWP, the Judgment Debtor was utterly unable and entirely failed to even begin to establish and prove his alleged costs and to have the same taxed, assessed and certified, requiring him to pay back to MWP >£717,000, with interest, from 2010 at 8% per annum, requiring a total payment to MWP of >£3m, which he has defaulted in paying.

17. As the record shows and proves, MWP has always cooperated with the Court and complied with its orders, filing and serving its evidence in time, and by taking the labouring oar with respect to the court books. It is the Judgment Debtor who has failed to comply with his disclosure obligations, including under the Notice to Produce, and has concealed the truth and reality of his connections to, assets in, business in and financing in and from Australia. The Judgment Debtor does not live and work in the UK, has no right to do so, and equally at present has no right to live and work in Kazakhstan, based on the evidence before the Court. There is no doubt that Australia has bankruptcy jurisdiction over him, and has always had. It was the Judgment Debtor who chose to invoke the special leave jurisdiction of the High Court of Australia, but simply does not want to pay, having lost. The Judgment Debtor has long had solicitors on the record for him, appearing in all of the NSWSC (CLD and Equity Divisions), the NSWCA, the HCA, the FCA, as well as the ACTSC and the ACTCA.

18. In addition, as mentioned and briefly explained above, and as the record shows and proves, in the period leading up to the hearing on 20.08.25, and the judgment and the Further Order, no application was ever filed by the Judgment Debtor, no filing fee paid by the Judgment Debtor, no application approved, stamped and sealed by the Court, no application served on MWP, no application listed to be heard by and that was before the Court on 20.08.25, all as required by the law and rules.

19. Accordingly, and with great respect it is clear that the judgment and Further Order are misconceived and in material error, based as they were on cynically, deliberately and knowingly false evidence of Mr Duggan as set out in PJD-1, which never had any proper basis in fact and in law and false and misleading submissions by Mr Baird on 20.08.25 who even wrongly went so far as to suggest, without any foundation or basis that MWP had, somehow and allegedly deliberately “blocked” Mr Duggan’s emails commencing 29.07.25, when it never had, indeed, Mr Duggan had failed to ever even transmit his emails after 29.07.25 to MWP, because his email system and server failed to establish a connection with that of MWP, though MWP’s systems and servers are of the highest quality and have always been working normally throughout, as explained in MEW-5, Mr Duggan has clearly received all of MWP’s messages with no problem.

20. Accordingly, the judgment and Further Order should never have been made and are and always were in material and very serious breach of MWP’s rights, since no application was ever filed by the Judgment Debtor, no filing fee paid by the Judgment Debtor, no application approved, stamped and sealed by the Court, no application served on MWP, no application listed to be heard, no application was before the Court on 20.08.25, and which are required by the law and rules, so that MWP had ample opportunity to address and deal with the same, to file and serve its reply and answer, and to make its submissions.

13    The submissions and the supporting evidence (and other unilateral emails sent without consent to my chambers) have focussed heavily on who should be blamed for the email problems between Mr Duggan and Mr Wilson. However, this misses the point. In my previous judgment (at [10], [19]), I made it clear that it matters not who is to blame for the email difficulties. The mere existence of those difficulties (whoever is to blame) was one reason for the Orders. The submissions about the responsibility for the email difficulties, or the evidence about the same, do not provide any reason to vary the Orders.

14    For completeness, I do not accept that it has been demonstrated that Mr Duggan is responsible for the email communication difficulties, and I find that it is unclear who or what is responsible for the difficulty (if any difficulty exists). MWP has likewise failed to establish that Mr Duggan has given evidence cynically, deliberately, or knowing it to be false. The submission that Mr Baird has made improper submissions is likewise not established.

15    To the extent that the submissions assert that Mr Emmott should have been required (and should now be required) to file an interlocutory application, I do not accept this submission. Whilst significant interlocutory relief ordinarily should be sought by an interlocutory application supported by evidence, there are many interlocutory orders that are, for example, made as a result of orders proposed by parties in short minutes of order provided prior to a case management hearing. The Court has discretion to make orders sought in that way. Mr Emmott provided advance notice of the order which he would seek at the case management hearing. Not only did MWP have advance notice of the order, but Mr Wilson made submissions opposing the order, primarily on the basis that Mr Emmott was to blame for the email difficulties and that to impose a requirement to instruct Australian solicitors would impose an unnecessary cost on MWP. I do not consider that the absence of a formal interlocutory application is a compelling reason for setting aside the Orders. I also note that MWP, having now taken a further month to make submissions, has not addressed other matters relied upon in making the Orders, including the application of the Federal Court Rules. I have concluded that the Federal Court Rules operate to prevent MWP from continuing to appear via Mr Wilson. The Court could also act on its own motion in that regard. MWP has therefore not identified any prejudice in a practical sense flowing from the alleged informality of the process for making the Orders.

16    To the extent that the submissions rely upon a previous practice of Mr Wilson being permitted to appear on behalf of MWP, this is no reason to vary the Orders. On the contrary, the submission that “MWP is in effect self-represented and chooses to be so” reinforces the basis for the Orders. Pursuant to r 4.01 of the Federal Court Rules, corporate parties cannot be self-represented. However, the fact that MWP asserts that Mr Wilson’s representation is “self-representation” merely reinforces the concern about lack of impartiality referred to in my previous judgment. It also does not address the problem arising under the Federal Court Rules referred to in my previous judgment.

17    To the extent that MWP suggests that the Orders are a tactical step to waste MWP’s time and money, that does not adequately reflect the basis on which the Orders were made.

18    To the extent that MWP relies upon the merits of the underlying dispute, those matters are irrelevant to the making of the Orders.

19    It follows from the matters discussed above that it is not in the interests of justice to set aside or vary the Orders, and no proper basis for setting aside or varying the Orders has been demonstrated.

20    MWP’s interlocutory application should be dismissed, with costs.

Associate:

Dated:    24 September 2025