FEDERAL COURT OF AUSTRALIA

Michael Wilson & Partners Ltd v Cronan [2025] FCA 1588

ORDERS

THE COURT ORDERS THAT:

1.    Mr Michael Earl Wilson be restrained from acting for the applicant in this proceeding.

2.    Mr Michael Earl Wilson be restrained from acting for the applicant in any proceeding in this Court, either in the name of Michael Wilson & Partners Ltd or in the name of any other person against Mr Jason Porter or Mr Richard Moretti and relating to or in any way connected with the bankrupt estate of Mr David Slater, without first obtaining the leave of this Court.

3.    Within 21 days of the date of these orders:

(a)    the applicant provide security for the respondents’ costs of this proceeding in the sum of $225,000, by paying that sum into Court; and

(b)    the applicant pay to the third and fourth respondents the amount of $74,984 due under orders made by this Court and the High Court of Australia.

4.    The proceeding be stayed pending the provision of both of the amounts stated in orders [3(a) and (b)].

5.    The respondents’ amended interlocutory application filed on 20 June 2024 otherwise be dismissed.

6.    The applicant pay the respondents’ costs of that application with such costs to be quantified on a lump sum basis by a Registrar acting as a referee after receiving written submissions and any affidavit from each of the parties in accordance with a timetable to be set by the Registrar.

7.    Subject to further order, the question whether the Registrar’s report as referee should be adopted will be considered by Goodman J on the papers that were before the Registrar acting as referee without the filing of any additional papers.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    INTRODUCTION

1    These reasons for judgment deal with an interlocutory application brought by the respondents – Mr Jason Cronan, Mr Terry Van Der Velde, Mr Jason Porter and Mr Richard Moretti – for a suite of orders against the applicant (MWP) and MWP’s solicitor, Mr Michael Wilson.

2    For the reasons developed below, I have concluded that:

(1)    Mr Wilson should be restrained from representing MWP: (a) in this proceeding; and (b) in any future proceeding against Mr Porter and Mr Moretti concerning the bankrupt estate of Mr David Slater, without the prior leave of the Court;

(2)    MWP should: (a) pay to Mr Porter and Mr Moretti costs it has previously been ordered to pay by this Court and the High Court of Australia; (b) provide security for the respondents’ costs of this proceeding, with the present proceeding stayed until such payments have been made; and

(3)    the interlocutory application should otherwise be dismissed.

A.1    Overview of MWP’s claims in this proceeding

3    It is convenient to commence with a broad overview of the claims brought by MWP in this proceeding. Those claims are as follows.

4    MWP is a company incorporated in the British Virgin Islands, which carries on a business as a law firm and business consultancy in the Commonwealth of Independent States, from offices in Kazakhstan, Azerbaijan, Kyrgyzstan and Uzbekistan.

5    Each of the respondents was, at all material times, a natural person and an Australian insolvency practitioner.

6    Commencing in around 2005, Mr Robert Nicholls, Mr Slater and Mr John Emmott each engaged in certain misconduct as against MWP, including breaches of contract, breaches of fiduciary duty, the theft of large sums of money and the diversion of assets, projects and mature and ripe business opportunities, which MWP had initiated, designed, invested and financed.

7    MWP in due course became a judgment creditor of each of Mr Nicholls and Mr Slater.

8    As to Mr Nicholls:

(1)    prior to 16 February 2015, it was agreed between MWP and each of Mr Cronan and Mr Van der Velde that:

(a)    Mr Cronan and Mr Van der Velde would accept appointment as trustees of the bankrupt estate of Mr Nicholls;

(b)    MWP would provide funding to Mr Cronan and Mr Van der Velde for part of their fees and disbursements of acting in that capacity;

(c)    any such funding would be repaid from future assets and realisations in the administration of the bankrupt estate of Mr Nicholls, prior to any distribution to unsecured creditors;

(d)    that funding would be treated as a cost, charge and expense of the administration for the purposes of s 109 of the Bankruptcy Act 1966 (Cth) and, thus, as an expense falling with s 109(a) of that Act;

(2)    on or around 16 February 2015, Mr Cronan and Mr Van der Velde were appointed as trustees of the bankrupt estate of Mr Nicholls, upon their nomination by MWP as the petitioning and funding creditor;

(3)    during the period from 16 February 2015 until 2021, Mr Cronan and Mr Van der Velde acted in that capacity;

(4)    during that period, MWP provided funding to Mr Cronan and Mr Van der Velde and incurred other expenses with respect to the bankrupt estate of Mr Nicholls and is entitled to priority with respect to such funding and expenses; and

(5)    Mr Cronan and Mr Van der Velde failed properly to administer the bankrupt estate of Mr Nicholls in many ways, and in so doing acted: (a) negligently; (b) in contravention of their equitable and common law duties; (c) in contravention of duties they owed under s 19 of the Bankruptcy Act; and (d) in breach of contract.

9    As to Mr Slater:

(1)    prior to 9 February 2016, it was agreed between MWP and Ms Julie Palmer, a United Kingdom based insolvency practitioner, that:

(a)    Ms Palmer would accept appointment as trustee of the bankrupt estate of Mr Slater;

(b)    MWP would provide funding to Ms Palmer for part of her fees and disbursements of acting in that capacity;

(c)    any such funding would be repaid from future assets and realisations in the administration of the bankrupt estate of Mr Slater, prior to any distribution to unsecured creditors;

(2)    on 9 February 2016, Ms Palmer was appointed in the United Kingdom as the trustee of the bankrupt estate of Mr Slater upon the nomination by MWP as the funding and petitioning creditor;

(3)    prior to 16 August 2016, it was agreed between MWP and each of Mr Porter and Mr Moretti that:

(a)    Mr Porter and Mr Moretti would accept appointment as local representatives of Ms Palmer in relation to the bankrupt estate of Mr Slater;

(b)    MWP would provide funding to Mr Porter and Mr Moretti for part of their fees and disbursements of acting in that capacity;

(c)    any such funding would be repaid from future assets and realisations in the administration of the bankrupt estate of Mr Slater, prior to any distribution to unsecured creditors;

(d)    such funding would be treated as: (a) a cost, charge and expense of the administration for the purposes of s 109 of the Bankruptcy Act, and thus as an expense falling with s 109(a) of that Act; or (b) an expense of the bankruptcy, falling with rule 6.224 of the Insolvency Rules 1986 (UK);

(4)    on 16 August 2016, Justice Gleeson (then of this Court) made orders, inter alia:

(a)    entrusting the administration and realisation of all of Mr Slater’s assets located in Australia to Mr Porter and Mr Moretti;

(b)    that all powers normally available to a trustee in bankruptcy appointed under the provisions of the Bankruptcy Act be made available to Mr Porter and Mr Moretti;

(c)    that the costs of the proceeding before her Honour be costs in and of the bankruptcy of Mr Slater and accorded the same priority as costs of proceedings incurred by a trustee in bankruptcy appointed under the Bankruptcy Act;

(5)    from 16 August 2016 until 25 June 2021, Mr Porter and Mr Moretti acted in the capacity of local representatives of Ms Palmer;

(6)    during that period MWP provided funding to Mr Porter and Mr Moretti and incurred other expenses with respect to the bankrupt estate of Mr Slater and is entitled to priority with respect to such funding and expenses; and

(7)    Mr Porter and Mr Moretti failed properly to administer the bankrupt estate of Mr Slater in many ways, and in so doing acted: (a) negligently; (b) in contravention of their equitable and common law duties; (c) in contravention of duties they owed under s 19 of the Bankruptcy Act; and (d) in breach of contract.

10    MWP also pleads that:

[The respondents] have wrongfully and fraudulently conspired and colluded with Emmott to injure and damage MWP, and to cause it to have to suffer and incur large costs, this has included (without limitation) by seeking, applying for and obtaining documents and data they were not entitled to, breaching the implied Harman undertaking and breaching their contracts with and fiduciary, contractual and statutory duties to MWP, as a judgment and funding creditor, who caused and financed their appointment, and with whom they had agreed to co-operate from 2005, and 2006, respectively.

11    Finally, MWP pleads that by reason of the various contraventions and breaches earlier mentioned, and the conspiracy to injure and the collusion referred to in the previous paragraph, it has suffered loss and damage.

12    In his first affidavit read on this application, Mr Wilson provided the following summary:

28.     To cut a long story short, MWP was entitled to as a judgment creditor with a worldwide freezing order registered on the title to the Mossman (sic) and Canberra properties to simply enforce against the same itself. Instead, the Respondents ruined everything and created a complete mess through their breaches of duty, negligence and incompetence. In the case of the Nicholls estate and Nicholls house in Mossman (sic), Messrs Cronan and van der Velde lost an application by F.M. Nicholls, the former wife of the deceased, to adjust the equity in her favour, leaving the estate of Nicholls with only 25%. Further, they took no steps to gather and realise all of the other assets of the estate. A similar story occurred in relation to the Slater estate. MWP began enforcing directly against the Canberra property after obtaining judgment in the NSWSC in November 2022 and May 2023, when it recognised its NSW judgments and orders in the ACT. Once again, MWP could have simply enforced directly against the Canberra house, however, after Mr Slater was bankrupted in December 2015, MWP had to appoint Ms Palmer as the trustee, and she had to appoint Messrs Porter and Moretti as her local representatives. Ms Palmer applied to go on the title, but was thwarted by the misconduct of Messrs Porter and Moretti and Ms Farmer as their lawyer. By way of example only, again, all funded by MWP, Ms Palmer applied to the ALTO to go on title, when everything was ready and finished, she discovered that behind her back Messrs Porter and Moretti had already gone on title in breach of duty. They also made a total mess of dealing with the property, firstly by failing to rent it out, even though MWP funded repairs to the property and appliances to the property to make it attractive to tenants, and secondly by failing to sell it at good price, clear off EFM and Westpac as cheaply as possible, wrongly lifting MWP’s worldwide freezing order and the like. The net position is that due to the breaches and defaults of the Respondents, enormous time and costs have been wasted and nothing of value achieved, yet they have purported to incur and have charged enormous fees and costs, including in relation to the Mossman (sic) and Canberra houses – Ms Farmer also wrongly lifted MWP’s WWFO in the NSWSC, whereas it was only necessary to vary the same to allow Ms Palmer to go on title at the ALTO and to sell and realise the Canberra house. Messrs Porter and Moretti also wrongly failed to pay back MWP’s funding as the priority cost and funding of the estate out of the proceeds of sale, as they were obliged to do. They also wrongly applied to Markovic J and then on appeal to Stewart J to take all of the net proceeds of sale for themselves, when by the OECD Model Law and the relevant law they should simply have remitted the net proceeds to Ms Palmer as the trustee to deal with the same. Messrs Porter and Moretti acted wrongly and in breach by so applying and taking all of the net proceeds themselves.

29.     Further, all of the Respondents and especially Ms Farmer have wrongly conspired and colluded against MWP with Mr Emmott, including through Messrs Duggan and Baird. This included a false and improper security for costs application before Stewart J based upon the former worldwide freezing and related orders against MWP, in which they obtained from Mr Emmott and recycled an affidavit of his solicitor, Mr Duggan of 12.08.21, taken from the ACT proceedings in breach of the ACTSC Rules, the implied Harman Undertaking and without consent of MWP. With effect from 17.06.22, all such orders against MWP have been set aside with costs, including indemnity costs, and damages awarded in favour of MWP, because MWP has proven that Mr Emmott, an NSW solicitor, acted in breach of the fundamental duties of the utmost good faith and of full and frank disclosure throughout, which MWP exposed, and as a result of which MWP is entitled to its damages from 03.03.07 to date.

13    I pause to note that neither Ms Farmer of Mills Oakley (who acts for the respondents in this proceeding and for Mr Porter and Mr Moretti in the other proceedings later discussed) nor any other legal representative of the respondents is a respondent to this proceeding; and the allegations made by Mr Wilson on behalf of MWP against her and other legal representatives of the respondents in affidavits, correspondence and submissions – which are discussed later in these reasons – are strenuously denied. The wanton manner in which such allegations have been cast is central to much of the present application.

A.2    The interlocutory application

14    By an amended interlocutory application, the respondents seek orders to the following effect:

(1)    an order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that Mr Wilson be restrained from acting for MWP in this proceeding;

(2)    an order pursuant to s 37AO(2)(a) of the FCA Act that the proceeding be dismissed;

(3)    further or in the alternative, an order pursuant to s 37AO(2)(a) of the FCA Act that this proceeding be stayed as against Mr Porter and Mr Moretti;

(4)    further or in the alternative:

(a)    an order pursuant to s 37AO(2)(c) of the FCA Act that, within 14 days, MWP pay to Mr Porter and Mr Moretti the amount of $74,984, being the total of the amounts outstanding pursuant to the costs orders made against MWP in proceedings numbered NSD428/2020 and NSD767/2021 in this Court and in High Court of Australia proceeding S68/2022; and

(b)    an order pursuant to s 37AO(2)(c) or s 56(1) of the FCA Act, or s 1335 of the Corporations Act 2001 (Cth), that, within 14 days, MWP provide security for the respondents’ costs in the sum of $239,500, by paying that sum into Court

(together, “security”);

(5)    the proceeding be stayed pending the provision of the security;

(6)    an order pursuant to s 56(4) that, if security is not provided strictly within 14 days then the proceeding be dismissed; and

(7)    an order pursuant to s 37AO(2)(b) of the FCA Act that MWP – whether by itself, or by its servants and agents – be prohibited from instituting any proceeding in this Court, or filing any application or originating process in any existing proceedings in this Court, either in its own name or in the name of any other person against Mr Porter and Mr Moretti, and relating to or in any way connected with the bankrupt estate of Mr Slater, without first obtaining leave of this Court.

15    The respondents also seek costs.

16    Before considering the various orders sought by the respondents, it is necessary to set out, in some detail, the background.

B.    BACKGROUND

17    On this application, the respondents read two affidavits affirmed by Ms Farmer and tendered the exhibits thereto, together with a transcript of a hearing before Judicial Registrar Morgan. MWP read three affidavits of Mr Wilson and tendered the exhibits thereto. A chronological bundle of documents in the various exhibits and other documents runs to more than 3,000 pages.

18    From that evidence, the matters salient to the present application are as set out below.

19    As noted above, on 16 August 2016, on the application of Ms Palmer and pursuant to orders of Justice Gleeson, Mr Porter and Mr Moretti were appointed as the Australian representatives of the bankrupt estate of Mr Slater.

20    Orders 3 to 5 of the orders made by Justice Gleeson provided as follows:

3.    Pursuant to s 6 and article 21(1)(e) of the Model Law, the administration and realisation of all of the assets of David Ross Slater located in Australia be entrusted to Jason Lloyd Porter and Richard Moretti of SV Partners Insolvency (NSW) Pty Ltd, of Level 7, 151 Castlereagh Street, Sydney in the state of New South Wales, as the local representatives of the applicant (“Australian representatives”).

4.    Pursuant to s 6 of the Act and article 21(1)(g) of the Model Law, subject to the provisions of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), all powers normally available to a trustee in bankruptcy appointed under the provisions of the Bankruptcy Act be made available to the Australian representatives.

5.    The costs of this proceeding be costs in and of the bankruptcy of Mr Slater and accorded the same priority as costs of proceedings incurred by a trustee in bankruptcy appointed under the Bankruptcy Act.

21    Her Honour’s reasons for making those orders were published as Palmer (Trustee), in the matter of Slater (Bankrupt) (No 2) [2016] FCA 960.

22    On 15 April 2020, Mr Porter and Mr Moretti commenced proceeding NSD428/2020 in this Court, seeking relief which included (as written):

1.    An order pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) and cl1(g) of Article 21 of the Model Law on Cross Border Insolvency of the United Nations Commission on International Trade La, alternatively the general law, that the Applicants are entitled to be paid from funds under their control as local representatives of Julie A Palmer as trustee of the estate of David Ross Slater, a Bankrupt the sum of $134,485.44 in payment of the costs, charges and expenses of the administration of their appointment, and that such be paid as a priority payment in accordance with s 109 of the Bankruptcy Act 1966 (Cth) as if the funds recovered by the Applicants were assets of a regulated debtor’s estate under the Bankruptcy Act 1966 (Cth).

2.    An order pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) and cl1(g) of Article 21 of the Model Law on Cross Border Insolvency of the United Nations Commission on International Trade La, alternatively the general law, that the Applicants would be justified in paying to Michael Wilson & Partners Limited the sum of $18,815.00 and £10,000.00, as a priority payment in accordance with section 109(10) of the Bankruptcy Act 1966 (Cth) as if the funds recovered by the Applicants were assets of a regulated debtor’s estate under the Bankruptcy Act 1966 (Cth)

3.    An order that the Applicants Costs of this application be paid as a priority payment in accordance with section 109(1) of the Bankruptcy Act 1966 Cth as if the funds recovered by the Applicants were assets of a regulated debtor’s estate under the Bankruptcy Act 1966 (Cth).

4.    An order that the Australian Representatives be released and discharged from all liability in respect of any act done or default made by the Australian Representatives in the administration of the trusteeship of the bankrupt estate of David Ross Slater.

23    On 7 May 2020, proceeding NSD428/2020 came before Justice Markovic for a first case management hearing. On that day MWP sought, and was granted, leave pursuant to r 2.03 of the Federal Court (Bankruptcy) Rules 2016 (Cth), to be heard in the proceeding without becoming a party to it. Orders were also made, inter alia, for: MWP to file and serve by 28 May 2020 any interlocutory application setting out the relief it sought and any affidavits in support; the filing of submissions; and for a final hearing in the proceeding to occur on 21 July 2020 with an estimate of one day.

24    MWP failed to file an interlocutory application by 28 May 2020.

25    On 18 June 2020, Justice Markovic conducted a further case management hearing. Her Honour extended the time by which MWP could file its interlocutory application and affidavits in support to 2 July 2020. Mr Porter and Mr Moretti were required to file and serve any affidavits in reply, their submissions in support of their application and their submissions in reply to any submissions filed by MWP by 10 July 2020 and MWP was to file and serve any submissions in reply by 17 July 2020.

26    MWP did not file its interlocutory application by 2 July 2020.

27    On 14 July 2020, MWP provided an interlocutory application to Mr Porter and Mr Moretti. An affidavit of Mr Wilson sworn on 14 July 2020 was also provided.

28    On 20 July 2020: (1) Mr Porter swore an affidavit said to be in response to the interlocutory application served by MWP and the affidavit of Mr Wilson; and (2) an outline of submissions was served on behalf of Mr Porter and Mr Moretti. Those submissions responded to the material served by MWP on 14 July 2020; and (3) MWP filed its interlocutory application (20 July 2020 application) and Mr Wilson’s affidavit.

29    The 20 July 2020 application sought:

1.    On the facts and grounds set out in the supporting affidavit of M. E. Wilson of 14th July 2020, MWP applies for and seeks all of the following relief:

1.1     that MWP should be granted an extension of time within which it is required to file and serve this Application, its evidence in support and related submissions, as set out in paragraphs 1, 3, 4 and 5 of the Order of Markovic J of 18th June 2020 and, accordingly, that the timetable as set out in such Order should also be reset and revised for the reasons outlined and provided;

1.2     that the Local Representative, and the Trustee, must forthwith reimburse and pay back to MWP, with interest, all monies advanced by MWP and all fees, costs and expenses howsoever, suffered, incurred, paid and/or financed by MWP, whether directly or indirectly, as to both the Property in particular, and the Estate in general, and howsoever arising in relation to this bankruptcy, in accordance with the prior agreements, arrangements and understandings reached and in place between MWP, the Trustee and the Local Representatives, and all others involved;

1.3     that, acting in conjunction with MWP as the principal creditor, the Local Representatives and the Trustee must promptly take steps to deal with EFM, and seek to make them liable for all delays, fees and costs, suffered and incurred, including in damages for the reduced sale value of, and resulting net proceeds realised from the Property;

1.4    that, acting in conjunction with MWP as the principal creditor, the Local Representatives and the Trustee must exercise, use and apply their statutory powers so as to identify, locate, secure, gather and bring in, and trace into all of the other assets of the Estate, and promptly take steps to obtain ownership, possession, custody and control of the same, realise and bring all such to account and to cash;

1.5    that, acting in conjunction with MWP as the principal creditor, the Local Representatives and the Trustee will co-operate with MWP in support of its appeal before the Court of Appeal of the NSW Supreme Court, comprising Appeal Nos. 2019/103863 & 2019/170998, and also in the related substantive proceedings No. 2016/34380, when the appeal is successful, and also in relation to the first set of proceedings out of which the US$14m judgment debts arose;

1.6    the Local Representative, together with the Trustee must adjudicate upon and certify all of MWP's judgment debts, including the costs relating to the reciprocal recognition and bankruptcy in England and Australia, whether presently certified and uncertified;

1.7    the Local Representatives, together with the Trustee must promptly disclose and provide to MWP copies of all correspondence and documents passing between them and the Bankrupt, Ms D. M. Lighezollo, EFM, Effective Recoveries, Rothwells, Ms Rothwell, Mr McKay, Mr Emmott and/or others on their behalf, and whether directly or indirectly;

1.8    the Local Representatives, together with the Trustee must promptly disclose and provide to MWP copies of all engagement letters, invoices, fee notes, contracts and related correspondence with the various consultants and agents they have used as to their agreed terms and conditions giving rise to their fees and costs, including those of Mr Golledge, and which are not fully and properly disclosed in JLP-1;

1.9    the fees and costs of the Local Representatives in seeking to and registering a Caveat over the Property, in seeking to register title in their own name, in wrongly causing the entire freezing order of MWP to be entirely cancelled and lifted, and in subsequently rectifying such errors, shall be disallowed as costs of the Estate;

1.10    the assesment (sic) and taxation of all of the fees and costs of the Local Representatives, as well as those also of MWP itself, in accordance with Division 40.2 of the Federal Court Rules 2011; and

1.11    that the Local Representatives, together with the Trustee, should not be discharged and released, but instead must continue in office and fulfil all of their duties, liabilities and obligations.

2.    The Court give directions.

3.    Costs in the Bankruptcy.

4.    Such further or other orders as the Court, sees fit and deems necessary.

30    On 21 July 2020, Justice Markovic commenced the final hearing in proceeding NSD428/2020. Mr Golledge of senior counsel appeared on behalf of Mr Porter and Mr Moretti. Mr Wilson appeared on behalf of MWP.

31    On that day her Honour dismissed both: an application by MWP for an adjournment (on the basis that it needed time to consider and obtain advice concerning Mr Porter’s affidavit of 20 July 2020 and the submissions on behalf of Mr Porter and Mr Moretti of the same date); and the 20 July 2020 application.

32    Her Honour published her reasons for doing so: Porter, in the matter of Slater [2020] FCA 1133. Those reasons for judgment include:

6    I turn first to MWP’s application for an adjournment. As I have already noted, MWP submits that it ought to be entitled to an adjournment in order to consider the Porter Affidavit and to obtain advice from an Australian bankruptcy lawyer in relation to the Reply Submissions which respond to the MWP Application. MWP says it has not had sufficient time to do so.

7    I note here that Mr Wilson, who I understand to be a principal of MWP, appears on behalf of MWP in this proceeding. Mr Wilson is located in Kazakhstan which creates some timing difficulties in that, as I understand it, Kazakhstan is approximately four hours behind Australian Eastern Standard Time. But, putting that to one side, I do not propose to accede to the application for adjournment made by MWP this morning. The purpose for that adjournment is said to be to enable MWP to consider the evidence in reply, which the applicants may seek to read in response to the MWP Application, and to obtain legal advice.

8    As to the latter, in my view MWP has had sufficient time to obtain legal advice from an Australian bankruptcy lawyer. As I have said, this proceeding was commenced by the filing of an application on 15 April 2020. The evidence before me establishes that it was sent by email to Mr Wilson on 14 April 2020. MWP was granted leave to be heard on the application on 7 May 2020. That is, MWP has had approximately three months’ notice of the proceeding and, in my view, has had sufficient time to obtain legal advice. As to the former, the material was served yesterday because the material to which it responds was also served late. That is, that material was served, as I have already said, some 12 days late and provided to the applicants on 14 July 2020.

…

12    However, Ms Palmer is not a party to this proceeding and no application has been made to join her. Further, the MWP Application does not set out what power this Court has to make a number of the orders sought, nor were there any submissions filed by MWP to explain how it is that it is entitled to some of the relief sought.

…

14    Mr Golledge SC, who appears for the applicants, submits that should the Court be minded not to permit MWP to proceed with its application there is a way forward that would preserve its right to bring whatever proceeding it wishes in relation to the administration of Mr Slater’s estate by the Australian representatives and/or Ms Palmer, the UK trustee. That is, that the applicants be permitted to proceed with their substantive application today in which they seek orders for payment and quantification of their remuneration and for their retirement, but that, in effect, MWP’s right to bring any application of the nature I have described be preserved.

15    The applicants also seek an order that they be released and discharged from all liability in respect of any act done or default made by them in the administration of Mr Slater’s estate. As Mr Golledge SC candidly submits, in order to preserve the rights of MWP to bring any such application, then any ruling on that order would have to be deferred to another day, or, subject to submissions made, the application insofar as it seeks that order would have to be refused. Proceeding in that way would leave the way open for MWP to apply for the orders it seeks in the MWP Application in the future in a proceeding properly constituted.

33    The transcript of that hearing includes:

MR WILSON: Yes, the objections are extraordinary. I mean, Mr Golledge is the usual abusive self. The affidavit is very carefully drawn and cites and carefully exhibits relevant – all relevant documents proving the facts to which it attests. The index is detailed, paginated. The documents are cross-referred in each relevant paragraph. And so his broad objections are just nonsense. He just – I mean, in essence, what he’s trying to do is reject our entire evidence, whereas if one looks at Mr Porter’s affidavit, it’s far inferior quality. It has far fewer documents supporting it. Mr Golledge’s only motive is to try and exclude the entire evidence so we’ve got no evidence to rely upon.

HER HONOUR: Well, I - - -

MR WILSON: He has gone grossly over the top, as usual. As with the freezing order lifting application when we lifted our entire freezing order, he has got no sense of relevance.

HER HONOUR: Well, I don’t think that matter – that’s relevant to what I’m currently dealing with, Mr Wilson. What I’m currently asked to do is to rule on objections to your affidavit. There are two ways. Mr Golledge has suggested two ways.

MR WILSON: Yes. I object to his suggestion.

HER HONOUR: Which suggestion do you object to? The section – treating it pursuant to section 136?

MR WILSON: Yes. We have to deal with each and every objection.

HER HONOUR: All right. Well, we will deal with each and every objection. All right. Well, we will start with paragraphs 6, 7 and 8 and Mr Golledge says that they are irrelevant or not relevant. What do you say in answer to that? What issue are they relevant to?

MR WILSON: Well, he has not described why they’re not relevant. I mean, why is it - - -

HER HONOUR: They are not relevant to the issue. The issue - - -

MR WILSON: I mean, it’s just utter nonsense. Utter nonsense.

HER HONOUR: Mr - - -

MR WILSON: If you look at Mr Porter’s affidavit - - -

HER HONOUR: We’re not looking at Mr Porter’s affidavit.

MR WILSON: - - - he – no. Just listen to me. Stop butting in. If you look at Mr Porter’s affidavit, he quite rightly describes his background and I’m simply describing my background in the same manner. So how on earth he can object to these facts escapes me. It’s just ridiculous. Mr Porter affirms in his affidavit that he’s a member of various insolvency associates, explains where he has worked and that’s exactly what this affidavit does in paragraph 6 to 8 and these are objective facts that are ascertainable by the public record.

…

MR WILSON: Paragraph 13 is factually accurate. The worldwide assets of the - - -

HER HONOUR: So you don’t object to it?

MR WILSON: Of Mr Slater vested in the trustee by English law and by the orders and judgments of July and August ‘16 of Gleeson J. The local representative acts on her behalf - - -

HER HONOUR: Do you object to the evidence or not?

MR WILSON: - - - in Australia.

HER HONOUR: Do you object?

MR WILSON: Yes. I do.

HER HONOUR: Well, what do you object to?

MR WILSON: It’s inaccurate.

HER HONOUR: Well, no. It says, “I am not a party to proceeding number 82 of 2015 in the ACT Supreme Court”, and here’s a document.

MR WILSON: Which is – that’s my document, actually, that I exhibited. It’s in my exhibit already and it’s just – it’s legally incorrect because, by English law, the assets and the estate vested automatically in the trustee and, by the order of Gleeson, Mr Porter is acting on behalf of the trustee in Australia.

HER HONOUR: All right. I’m going to allow the evidence. I will allow paragraph 13. Paragraph 14.

MR WILSON: So you didn’t listen to me.

HER HONOUR: I did listen to you. If you wish to tell me – to make that submission to me and to make a submission as to why you think Mr Slater is a party to a proceeding in which he’s not named and what the relevance of that is to the overall - - -

MR WILSON: No. What are you talking about? Look at the document. He is named as a party. He is the second judgment debtor. What are you talking about? Look at the document.

HER HONOUR: Please don’t speak to me like that, Mr Wilson.

MR WILSON: Well, please don’t make inaccurate statements.

…

HER HONOUR: Now I’ve assumed that there’s to be no cross-examination today and no party was given notice that they were required for cross-examination.

MR GOLLEDGE: We gave no notice of cross-examination, your Honour.

HER HONOUR: Right.

MR GOLLEDGE: And have received none.

HER HONOUR: All right. Mr Wilson, in that case, my assumption is correct. I think that finalises the evidence. So I would invite you to make your submissions.

MR WILSON: Well, I would like to cross-examine Mr Porter. I assumed he would be in attendance today. I think last time you ordered that the witness should be attending – in attendance.

HER HONOUR: I’m not sure I did order that. I think what I ordered was that notice be given. So the order that I made on 18 June was that the parties were to notify each other whether any deponents of affidavits are required for its cross-examination and, if so, the estimated length of cross-examination and that was to be by 17 July 2020 and I’m – I apprehend that didn’t happen, given Mr Golledge’s statement a few minutes ago. Mr Porter is not here. I don’t see him sitting in the room with Mr Golledge and Ms Farmer.

MR WILSON: Why not?

HER HONOUR: Because, Mr Wilson, I would assume no notice was given to Mr – to Ms Farmer that any of the witnesses, and the only witness relied on is Mr Porter, is required by – for cross-examination. There’s a reason why these orders are made, Mr Wilson. They allow for the efficient disposal of proceedings before the court.

MR WILSON: Really? That’s news to me, your Honour.

HER HONOUR: They allow – and they allow for proper - - -

MR WILSON: It’s news to me. Thank you for educating me.

HER HONOUR: Well, for proper time to be allocated to a hearing and for the matter to run smoothly, particularly, in circumstances where the parties are operating electronically in the way that the parties have to at the moment and the court needs to also. So that notice, not having been given, Mr Porter is not here.

MR WILSON: I’m sure he can come quickly. He’s just down the road.

HER HONOUR: Mr Golledge.

MR GOLLEDGE: Your Honour, Mr Wilson is a solicitor of many years experience, according to his own affidavit. He well understood the effect of your Honour’s orders and their – and the reasons for making them. Now, I – Mr Porter is not here. Even if – and we could contact him for certain. I would be entitled to conference Mr Porter about cross-examination. If cross-examination was now to be allowed and your Honour directed Mr Porter to present himself, this case will not finish today.

HER HONOUR: No. I accept that, Mr Golledge.

MR WILSON: Mr Porter has been present at all other hearings, including before Hammerschlag in the freezing order madness. His words to me was he always attends all hearings and, indeed, he was present before Hammerschlag in April and May 2019.

HER HONOUR: Well, it’s 21 July 2020 and Mr Porter’s not here and no notice - - -

MR WILSON: Well, where is he?

HER HONOUR: Well, Mr Wilson, no notice - - -

MR WILSON: Well, why doesn’t Mr Golledge explain where he is.

HER HONOUR: No notice was given that Mr Porter was required for cross-examination in accordance with the order made by the court on 18 June. How do you explain that?

MR WILSON: Where is Mr Porter?

HER HONOUR: No. Mr Wilson, you don’t answer a question with a question. I’ve asked why no notice was given and there’s a second question, what – if you were to cross-examine – if you now propose to cross-examine Mr Porter, what the estimated length of that cross-examination is.

…

HER HONOUR: If that’s the state of the evidence, why isn’t that a matter for submissions?

MR WILSON: Because significant costs are – have been incurred and claimed - - -

HER HONOUR: But how am I assisted - - -

MR WILSON: - - - which take - - -

HER HONOUR: How am I assisted as the person who needs to determine the - - -

MR WILSON: Because - - -

HER HONOUR: You haven’t let me finish my sentence.

…

MR WILSON: Please let me make my submissions. Mr Golledge has a vested financial interest, because his costs – his own personal costs form part of this claim, and what has happened here, astonishingly, is we identified this property and secured in in 2005 and what’s going on here is Mr Porter and his lawyers want to take the entire net proceeds for themselves, where we don’t even get bag. Our cash funding advanced out of our own pocket, and Mr Porter and their three partners have taken no steps to realise any other assets whatsoever.

All they have done is take into their ownership, wrongly, a house that we identified that we had already secured without their involvement, and they’ve just sold it at a massive cost and want to take all the proceeds, leaving we the judgment creditor owed 14 million with nothing, and Mr Porter needs to be cross-examined on his actions and role in this period. In contrast, on the Nicholls estate we were able to sell a house for 4.3 million, and there was ample proceeds to pay all the costs, plus to give some distribution to creditors.

The injustice here is rife. We did all the work to locate the property, we froze it, we found the agents, we paid the costs of refurbishment to allow it to be tenanted, we paid some of the cost towards the sale, we paid for Mr Porter to be appointed. We did a lot of work for that, and the proposition today that Mr Golledge is putting to you is that MWP should not even get its own money back, let alone any distribution.

HER HONOUR: Well, those are all matters for submission, Mr Wilson. What’s been put against you is that orders were made by the court that – in June that were detailed orders going to preparation of this matter for hearing. On the basis of those orders, the matter was set down for a – with an estimate for one day of hearing, that an experienced solicitor, like yourself, would know that orders of the court are not made – should be followed and that consideration should have been given to whether cross-examination was required, and that to allow the matter to go off today would be contrary to the overarching purpose of the civil – the running of civil cases in this court, and contrary to section 37M of the Federal Court of Australia Act, which, in effect, provides for the just and efficient disposal of matters before the court. Those are the submissions that have been put, and you have not responded.

MR WILSON: But you’re losing focus. You’re losing focus entirely. The main purpose of this local representation and the main purpose of these proceedings that we commenced in the Federal Court was to gather in the assets and realise the assets to the benefit of creditors. It’s not about simply getting Mr Porter paid in full and Mr Golledge paid in full. The overarching objective of these proceedings is to make sure the assets of the estate are gathered and realised, and as much distribution as possible is made to creditors.

HER HONOUR: Mr Wilson, the only proceeding - - -

MR WILSON: Mr Golledges’ submissions are outrageous. I mean, the delay in this matter is entirely at their door. They spent six months, seven months, at massive, massive cost bringing this application and then they seek to compel us in a very short time period to deal with significant evidence and a second affidavit only filed today, and an exhibit only filed today. We are not litigation lawyers. I’m a commercial corporate lawyer. We’re not litigators in Sydney. In this case, we are an interested creditor who caused this insolvency, who financed all the costs of it and has offered funding. Even today. I had discussions yesterday with Mr Hook. I’m still waiting for the up-to-date cost position of SV Partners with a view to possible further funding, and all that’s going on here is Mr Golledge is trying to ramrod through his own costs.

HER HONOUR: Mr Wilson, this – the application before me is a fresh proceeding in which Mr Porter and Mr Moretti seek specific orders. It is not a proceeding dealing with the whole of – with all of the issues that you raise. It’s a proceeding in which they seek an order for payment of their remuneration and costs in a certain amount and for – an order for their retirement and, if appropriate, release. That is what is before me today. They are the only issues that I am here to determine.

MR WILSON: You’ve lost sight of what this is all about, because the order of Gleeson appointed them generally as local representatives.

…

MR WILSON: Well, Mr Golledge entirely overlooks the fact that we have financed the estate massively. There would be no – he would have no client but for my bearing the costs entirely - - -

HER HONOUR: Mr Wilson.

MR WILSON: - - - of appointing the trustee and financing the trustee.

HER HONOUR: Mr Wilson, those submissions are not appropriate.

MR WILSON: And of getting the local representatives appointed.

HER HONOUR: Mr Wilson.

MR WILSON: It’s outrageous. We have financed this estate massively.

HER HONOUR: Mr Wilson.

MR WILSON: And Mr Golledge, how dare he – we’re the ones that found the house, how dare he suggest that we have done anything other than add value to this estate.

HER HONOUR: Mr Wilson.

MR WILSON: It’s preposterous. That’s typical of the whole problem of this trustee

- - -

HER HONOUR: Mr Wilson, your submissions are completely inappropriate. I’m going to - - -

MR WILSON: No, they’re not.

HER HONOUR: - - - put over any application for costs can be made on the next occasion. Now, the other thing is, Mr Wilson, you’re – Michael Wilson & Partners, I don’t think, ever complied with my order that written submissions be provided. I think in light of the fact that you propose to address for up to three hours I’m going to make a further order requiring you to put on your written submissions.

…

MR WILSON: If the hearing is going to be on the 25th, we would like until the – Friday the 21st to do our submissions, please.

HER HONOUR: I’m not going to give you till Friday the 21st. You will have to put them on a week before as I’ve said.

MR WILSON: Why?

HER HONOUR: To give everybody, including myself, and the applicants an opportunity to have a look at them and consider them before we come back on the 25th. That’s four weeks away, Mr Wilson.

MR WILSON: Less. Today is the 21st.

HER HONOUR: All right. Well, you can keep arguing with me, but that’s the order I’m going to make. All right. All right, if there’s nothing further, I will make the orders now. In matter number NSD428/2020 the court makes the following orders: …

(emphasis added)

34    As to the underlined passages in the previous paragraph, Mr Wilson’s evidence on this application is that “if the transcripts are read as the whole, there is no doubt that I was courteous to the Court, unfortunately, however, the Court itself often did not let me finish my sentence of (sic) make the points I was trying and entitled to make as MWP’s solicitor and legal representative”. That submission is not consistent with the transcript.

35    Her Honour also acceded to an application by MWP to allow it to cross-examine Mr Porter. This necessitated an adjournment of the hearing to enable the cross-examination to proceed. Her Honour adjourned the proceeding for further hearing on 25 August 2020.

36    On 13 August 2020, Mr Porter and Mr Moretti filed an amended application in proceeding NSD428/2020 (13 August 2020 application).

37    On 25 August 2020, the hearing in proceeding NSD428/2020 continued (day 2). Again, Mr Golledge appeared on behalf of Mr Porter and Mr Moretti; and Mr Wilson appeared on behalf of MWP. Mr Wilson sought an adjournment on the basis that MWP wished to brief counsel but had not been able to do so. Her Honour acceded to the application, made orders for the filing of submissions, and noted that any further application for an adjournment be supported by affidavit evidence. Her Honour made the following orders:

1.    Adjourn the matter for further hearing to 16 October 2020 at 10.15 am (AEST).

2.    Extend the time by which Michael Wilson & Partners, Limited (MWP) is to file and serve its submissions, not exceeding 10 pages in length, in response to the relief sought by the applicants to 5.00 pm (AEST) on 7 October 2020.

3.    The applicants are to file and serve their submissions, not exceeding three pages in length, in support of the application for their costs of the proceeding to be paid by MWP by 7 October 2020.

4.    MWP is to file and serve its submissions, not exceeding three pages in length, in response to the submissions filed by the applicants pursuant to Order 3 above by 14 October 2020.

5.    Costs of today and of any costs occasioned by the adjournment granted on the application of MWP are reserved.

(emphasis in original)

38    The transcript of that hearing includes:

MR WILSON: Yes. As I have said, I want to instruct counsel so there is an equality of arms. I don’t know why, but Mr Porter chose to instruct senior counsel. In my view, a matter of this nature - - -

HER HONOUR: Well, that’s a matter for – Mr Wilson, that is a matter for Mr Porter and his instructions. You’ve made that submission already.

MR WILSON: Well, your Honour, with great respect I have had numerous hearings lately, in a variety of courts. Including Australia, to the Bahamas, to New Zealand, and in England, where judges have been very critical if junior counsel are not used as opposed to senior counsel, where it is appropriate. And so much so that in fact, Senior Master Gordon-Saker in the English Senior Costs Office disallowed the cost of senior counsel, because he said there was just no need to engage senior counsel in - - -

HER HONOUR: All right. Well, that is not a matter that is relevant to what I’m now determining, Mr Wilson. I will ask you to stay on the issue, please.

…

MR WILSON: Yes. And as to the funds, I mean the deposit – the house was worth 1.2 million. Because of the incompetence and the delay of Mr Golledge and his clients, it wasn’t sold until the market had crashed and realised a price lower than $1 million. And further, it was always agreed that the EFM - - -

HER HONOUR: I don’t think that’s relevant. I don’t think that is relevant to the examination.

39    On 7 October 2020, Mr Wilson sent an email to the Associate to Justice Markovic concerning the inability of counsel retained by MWP to finalise submissions.

40    On 14 October 2020, Mr Wilson sent a lengthy letter by email to the Associate to Justice Markovic which set out in some detail assertions as to the merits of various proceedings; and foreshadowed another application for an adjournment.

41    On 15 October 2020, Mr Wilson sent a lengthy email addressing contentious matters to Ms Farmer and others and copied that email to the Associate to Justice Markovic. Mr Wilson maintains on this application “there was nothing wrong with MWP so copying in the Court”.

42    On 16 October 2020, MWP filed another application in proceeding NSD428/2020 (16 October 2020 application), seeking, inter alia:

1    an order that these proceedings be adjourned and stayed, pending the final outcome of the following proceedings:

1.1    those currently before the Equity Division of the Supreme Court of New South Wales, claim No.2016/34380, which is presently on appeal to its Court of Appeal, in appeal Nos. 2019/103863 and 2019/170998, and any further appeal; and

1.2    those currently before the Supreme Court of the Australian Capital Territory in claim Nos.082 SC82 and 336 of 2015 and 402 of 2017, and any further appeal.

43    The affidavit of Mr Wilson in support of that application included:

79.    The fourth last sentence onwards in paragraph 10 in page 3 is not correct, since MWP has very considerable assets in Australia, including its interests in the estate, although Mr Golledge is doing all that he can to take all monies for himself and Ms Farmer, and also as the owner of 67% of the Temujin Partnership, which banks, trades, holds assets, accounts and carries on business in Australia through no less than 7 corporations and 3 trusts, and the assets of which are summarised above, and have been proven and admitted. As the trustee and the Local Representatives already know, I am an Australian, an NSW and Victorian solicitor, and MWP also banks in Australia and has considerable other assets. The last sentence of paragraph 10 simply beggar belief and show Mr Golledges’s true personal colours and hubris. It was agreed with the Trustee and the Local Representatives to remove EFM/Effective Recoveries and their baseless caveat, and to make them responsible for costs, but this was never done, through no fault of MWP, indeed MWP is itself now bringing them to account in Canberra, single-handedly. MWP has and has always had a world-wide freezing and disclosure order in its favour since October 2006 securing its judgment debts, and although the same was registered against the title to the Canberra property that was not strictly necessary. As set out in my first affidavit, it was MWP that obtained the order of Stevenson J allowing the transfer of the title into the name of the Trustee, and no Local Representative, and further MWP completed and sent all necessary forms promptly to Australia, whenever requested, and on no less than 3 occasions. The real problem is and has always been with the local representatives, their lawyers and their failure to do their job properly and act in the best interests of the estate and all creditors to whom they have fiduciary duties, especially MWP as the principal and petitioning judgment creditor, who funded and caused their appointment and did so much to help.

80.    In relation to paragraph 11, as noted and explained above, there is no right of set off and no such can be granted or allowed, including because of the prior ranking KHI security rights and interests. The errors, negligence and extravagant conduct are those of the Local Representatives and their lawyers Messrs Golledge and Farmer, as particularised in my first Affidavit and the exhibit in support. Mr Golledges’s submissions in paragraph 11 bear little resemblance to reality, and reflect his on-going quest to take all available cash for himself, Ms Farmer and the Local Representatives leaving nothing for MWP and the other creditors, and which reflects the very bad job they have done.

(emphasis added)

44    On 16 October 2020, Justice Markovic continued the hearing in NSD428/2020 (day 3). Again, Mr Porter and Mr Moretti were represented by Mr Golledge and MWP was represented by Mr Wilson (despite the purpose of the adjournment on 25 August 2020 being to afford MWP the opportunity to retain counsel). Mr Wilson sought a further adjournment based upon the 16 October 2020 application, which was refused.

45    During that hearing, the following exchanges occurred:

MR GOLLEDGE: - - - your Honour, was just taken to that and in particular the final paragraph in terms of – your Honour, could I just make an observation because we’re at this page – Mr Porter’s evidence read, on the main application, explains the funding position in the estate and to the extent that Mr Wilson appears to have made a submission that there is evidence of the provision by him of significant funding to the Australian trustees. The evidence doesn’t support that, your Honour. And my – apart from the payment of some money to Ms Palmer which was then, used to defray some expenses about 7 or 8 thousand dollars in the Australian estate – that is the limit of NWP’s (sic) contribution to the costs and expenses of what has gone on in Australia. He has made ….

MR WILSON: It’s not .....

HER HONOUR: Mr Wilson. Mr Wilson, you will have an opportunity to reply. I would ask that you not interrupt Mr Golledge while he’s addressing the court.

…

MR GOLLEDGE: That’s the name of Mr Thomas’ chambers. Of evidence of his retainer, either in a costs agreement or in some other evidence of that retainer for the purpose of these proceedings. And, your Honour, there is a refusal, or at least a – yes. So a refusal to provide that information, or that document. Now, why is that relevant. Well, it probably - - -

MR WILSON: Well, it’s privileged.

MR GOLLEDGE: - - - it’s probably - - -

HER HONOUR: Mr Wilson, you will have an opportunity to respond. Please do not interrupt while Mr Golledge is addressing the court. Nobody interrupted you.

…

MR GOLLEDGE: There is no absolute, unconditional obligation. And as your – and there’s certainly nothing either in the Act or in the law that has developed around trustee’s obligations that would require an Australian bankruptcy trustee to carry out lengthy investigations, examinations, issue notices under the Act to obtain information where there is no funding to do. There is nothing in the Act that requires – that imposes such an unconditional obligation. And the evidence before your Honour is that – there are – there is already a substantial deficit in this estate. Taking into account in the way that Mr Porter has described in his evidence the – the delays and costs have been brought about since his appointment primarily as a result of MWP’s actions - - -

MR WILSON: Nonsense. It’s EFM.

HER HONOUR: Mr Wilson - - -

MR WILSON: What are you talking about?

HER HONOUR: Mr Wilson - - -

MR WILSON: What are you talking about?

HER HONOUR: Mr Wilson, I’m not going to ask you again - - -

MR WILSON: It’s just disgusting.

HER HONOUR: There is no – you will have a right of reply.

MR WILSON: Just a - - -

HER HONOUR: I’ve already asked you twice.

MR WILSON: - - - fantasy world.

HER HONOUR: Please do not cut across Mr Golledge while he’s making submissions.

MR WILSON: I’m not going to let - - -

HER HONOUR: Please pay him the same courtesy that he paid you.

MR WILSON: I’m not going to suffer his abuse, your Honour.

HER HONOUR: Mr Wilson, Mr Golledge is making submissions. I’ve asked you on a number of occasions not to interrupt him. I’m going to ask you again not to interrupt. You will be given a right of reply. Mr Golledge.

…

MR WILSON: And therefore the parties are quite capable of agreeing (a) a split of the existing cash, of course we understand Mr Golledge wants to get some of his fees paid in this farm (sic), of course we understand.

HER HONOUR: Mr Wilson, that’s not an appropriate submission to make.

(emphasis added)

46    As to:

(1)    the statements in the transcript from her Honour:

(a)    Mr Wilson. Mr Wilson, you will have an opportunity to reply. I would ask that you not interrupt Mr Golledge while he’s addressing the court;

(b)    Mr Wilson, you will have an opportunity to respond. Please do not interrupt while Mr Golledge is addressing the court. Nobody interrupted you;

(c)    Mr Wilson, Mr Golledge is making submissions. I’ve asked you on a number of occasions not to interrupt him. I’m going to ask you again not to interrupt. You will be given a right of reply.

Mr Wilson asserts that his microphone was inadvertently left switched on; and

(2)    Mr Wilson’s assertion that Mr Golledge “[wanted] to get some of his fees paid in this farm (sic)”, to which her Honour responded “Mr Wilson, that’s not an appropriate submission to make”, Mr Wilson’s evidence is that there must have been a mis-recording.

47    On 16 October 2020, Justice Markovic made the following orders:

1.    The interim application filed on 16 October 2020 by Michael Wilson & Partners, Limited (MWP) is dismissed.

2.    The application for an adjournment of the further hearing made on 16 October 2020 by MWP is refused.

3.    MWP to pay the applicants’ costs of its interim application filed on 16 October 2020 and its application for an adjournment of the further hearing made on 16 October 2020.

4.    Adjourn the matter for further hearing to 19 October 2020 at 10.00 am (AEDT).

(emphasis in original)

48    Her Honour published her reasons for doing so: Porter, in the matter of Slater (No 2) [2020] FCA 1547. Those reasons included:

15    MWP relied on the Wilson Affidavit. That affidavit comprises 87 closely typed paragraphs, some of which comprise evidence and other parts of which would better be categorised as submissions. It is prolix, in parts argumentative in tone and includes material not relevant to the relief sought in the Interim Application or the adjournment application. Notwithstanding that and in the interests of dealing with MWP’s applications as expeditiously as possible, the Australian Representatives did not make any objections to the Wilson Affidavit save to note that they would make submissions as to the weight to be given to the evidence.

16    The exhibit to the Wilson Affidavit comprises 244 pages. Again, it was difficult to see how all of the material in it was relevant to the applications before me.

49    On 19 October 2020, the hearing in proceeding NSD428/2020 continued (day 4). Again, Mr Porter and Mr Moretti were represented by Mr Golledge; and MWP was represented by Mr Wilson. During the hearing, the following exchanges occurred:

HER HONOUR: Could you let Mr Porter finish his answer please, Mr Wilson. Please, do not interrupt the witness. …

…

MR WILSON: … So given the evidence of the trustee at paragraph 19 of a sworn affidavit, which you haven’t contradicted in either of your first two affidavits, why did you prepare this transmission into your own names?---That’s how the law in Australia works, and that’s why we were appointed as the representative of ..... – of the UK trustee.

Is that correct?--- - - - and those were - - - Let’s go to - - -

HER HONOUR: Let Mr Porter finish, please.

…

HER HONOUR: Well, no, Mr Wilson, you need to let the witness complete his evidence before you ask the next question and not interrupt. Mr Porter, have you completed your answer?---Yes, yes, your Honour.

…

HER HONOUR: Well, cross-examiners need to use the time that’s allocated by the court efficiently. The court - - -

MR WILSON: Well, I understand efficiency, but - - -

HER HONOUR: This matter has already taken up - - -

MR WILSON: But the overriding objective is justice and fairness.

HER HONOUR: Yes.

MR WILSON: Efficiency is a subservient factor to those overriding objectives.

HER HONOUR: And justice and fairness has been given to MWP. This matter has, so far – so far there have been two adjournments on the application of MWP. This matter has, so far, taken up almost three days of the court’s resources. Now, I will hear from Mr Golledge about timing, but the court – I will not be allocating a further full day to this matter. Mr Golledge.

MR GOLLEDGE: Your Honour, I don’t know what to say. Any competent, efficient cross-examiner would have dealt with those four issues well within the time available. Now, it has now run out. The natural consequence ought to be that’s the end of the case and we move to submissions. That’s my application.

HER HONOUR: Right. Mr Wilson, what do you say to that?

MR WILSON: Mr Golledge wishes to bury the dead bodies, your Honour, and doesn’t want the truth of the matter to come out. That’s what he’s scared of, and that’s why in the evidence he fails to engage on the real issues in this case, and the real issues I’ve highlighted this morning. And Mr Golledge’s slur, of course, is typical of his …..

HER HONOUR: Mr Wilson, it’s not appropriate to level personal criticisms at advocates.

MR WILSON: Dear Judge, Mr Golledge said a:

…competent … cross-examiner –

who does he think he is? He is slurring me and MWP before the court, and you’re letting him getting away with it. You didn’t chastise him for saying that, did you?

HER HONOUR: Well, I haven’t dealt with that submission yet; I’m hearing you.

MR WILSON: But why didn’t you stop him saying that, as you’re trying to stop me just now?

HER HONOUR: Mr Wilson, this is my courtroom. Do you wish to say anything further?

(emphasis added)

50    As to the underlined passages in the previous paragraph, Mr Wilson’s evidence is that he let Mr Porter finish. The transcript suggests otherwise.

51    On 23 October 2020, Mr Wilson sent an email to Ms Farmer, which was copied to the Associate to Justice Markovic:

Further to your email, MWP objects to the same, since it would appear clear you have acted, and are acting in breach of the Porter “purdew” through completion.

Please now provide to MWP, and by return, all of the correspondence and documents required by the Notice to Produce served on you in April 2019, that you failed to comply with, and also which we re-sent to you earlier this week.

52    Again, Mr Wilson maintains on this application that there was nothing wrong with MWP copying in the Court.

53    On 26 October 2020, the hearing in proceeding NSD428/2020 resumed (day 5). Again, Mr Golledge represented Mr Porter and Mr Moretti; and Mr Wilson represented MWP.

54    The transcript of that hearing includes:

MR WILSON: I will just say – I will just say, your Honour, there is an empty room. I don’t see why Mr Porter can’t sit there.

HER HONOUR: Well, he can sit - - -

MR WILSON: I can – I can see it is the bottom left hand corner of the screen.

HER HONOUR: Yes, I can see an empty room too but in circumstances where I – what I wish to do, Mr Wilson, is to deal with this hearing as efficiently as possible and in circumstances where I can see the whole of the room, that is, the camera is placed in such a position that I’m able to see both Mr Golledge and Ms Farmer, who is instructing him. And if Mr Porter where (sic) to join, Mr Porter, who I assume would sit in the chair that’s a little bit pushed out, there is no reason why Mr Porter can’t sit in that room. I simply wish to get on with the cross-examination.

MR WILSON: Well, your Honour, he may be prompted by facial expressions, by nudges under the table, by notes being passed, we don’t see - - -

HER HONOUR: Mr – well, I – I – it’s improper to suggest that. I can see and I – I can watch and if we were in a court room setting, Mr Wilson, Mr Porter would be sitting in this room, I would be able to see him and I would be able to see counsel and solicitors or parties who appeared, all sitting in one room.

…

MR GOLLEGE: … Firstly, it’s inconsistent with Mr Porter’s evidence as to the steps that he would take as a trustee of 20 years’ experience, for the realisation that properties - - -

MR WILSON: He’s not the trustee. He’s a local representative.

HER HONOUR: Mr Wilson, Mr Golledge did not interrupt you whilst making submissions, I would ask that you not interrupt him.

…

MR GOLLEDGE: … Now such an arrangement does not offend the indemnity principle. If your Honour needs authority for that can I refer your Honour to two decisions of appellate court. First, the New South Wales Court of Appeal in the matter of Wentworth v Rogers [2006] NSWCA 145 - - -

MR WILSON: MWP hasn’t been provided with this authority, your Honour, ahead of the hearing – I don’t know why not – by Mr Golledge.

HER HONOUR: Mr Wilson, could you please let Mr Golledge complete his submissions uninterrupted. Yes, Mr Golledge, Wentworth v Rogers.

MR WILSON: Normally, counsel circulate to the other side before the hearing authorities on which they want to rely and we took trouble yesterday to refer him to the Re Eastwood case and got nothing in reply and he’s trying to address you on this without our seeing the authority.

HER HONOUR: Mr Wilson – Mr Wilson, Mr Golledge is going to complete his submissions. Yes, Mr Golledge what’s the other authority.

(emphasis added)

55    The transcript also records the following submission from Mr Wilson:

But instead, Mr Golledge chose to spend six months, from October 2019 to April 2020 bringing this application. Six months, your Honour. And then tries to shoehorn these proceedings into a ridiculously tight timetable, to rubber stamp him taking all the money. So if one stands back, your Honour, this is an appalling example of a local representative trustee in Australia, acting badly. They have – Mr Golledge deliberately breached MWPs freezing order by discharging it entirely, to MWPs entire prejudice. We worked so hard to get a worldwide freezing order, and to maintain it from 2006 to date. And despite being told by affidavit evidence, despite being told in conference calls and correspondence, despite notice of motions filed – all of which are ignored – Mr Golledge and Ms Farmer deliberately damaged MWP by cancelling our worldwide freezing order.

(emphasis added)

56    In his affidavit evidence on this application:

(1)    Mr Wilson doubled down on his allegation of coaching of Mr Porter, stating that “there is no doubt that Messrs Farmer, Golledge and her firm (sic) had coached Mr Porter prior to his giving evidence”; and

(2)    as to Justice Markovic’s statements: “Mr Wilson, Mr Golledge did not interrupt you whilst making submissions, I would ask that you not interrupt him… Mr Wilson, could you please let Mr Golledge complete his submissions uninterrupted… Mr Wilson – Mr Wilson, Mr Golledge is going to complete his submissions”, Mr Wilson contends that the record shows and proves, that he was interrupted many times by the Court itself and also by Mr Golledge, and that Mr Golledge completed his submissions. He also suggests that his microphone may not have been muted.

57    At the conclusion of the hearing on 26 October 2020, Justice Markovic reserved judgment.

58    On 25 June 2021, her Honour:

(1)    made declarations that:

1.    Pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) (CBI Act) and Art 21(1)(g) of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law), the applicants are entitled to be paid from funds under their control as local representatives of Julie Palmer as trustee of the estate of David Ross Slater (Trustee), a bankrupt, the sum of $128,221.44 in payment of the costs, charges and expenses of the administration of their appointment, such sum to be paid as a priority payment in accordance with s 109 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) as if the funds recovered by the applicants were assets of a regulated debtor’s estate under the Bankruptcy Act.

2.    Pursuant to s 6 of the CBI Act and Art 21(1)(g) of the Model Law, the applicants are justified in paying to [MWP] the sum of $18,815 as a priority payment in accordance with s 109(10) of the Bankruptcy Act as if the funds recovered by the applicants were assets of a regulated debtor’s estate under the Bankruptcy Act.

(emphasis in original); and

(2)    ordered that:

3.    The costs payable by MWP to the applicants pursuant to Order 3 of the Orders made on 16 October 2020 are payable on a lump sum basis in the amount of $9,125 excluding GST.

4.     MWP pay the applicants’ costs of this proceeding on a lump sum basis from 7 May 2020 onwards in the amount of $39,568.05 excluding GST.

5.     The amount payable by the applicants to MWP pursuant to Order 2 above be set off against the costs awarded on a lump sum basis in favour of the applicants pursuant to Orders 3 and 4 above.

6.     The applicants be discharged from their appointment as the local representatives of the Trustee.

59    The net amount payable by MWP to Mr Porter and Mr Moretti pursuant to her Honour’s orders was $29,878.05 ($9,125.00 plus $39,568.05 less $18,815.00).

60    Her Honour published her reasons for making the declarations and orders set out above: Porter, in the matter of Slater (No 3) [2021] FCA 688. Those reasons included:

18    MWP relied on the First Wilson Affidavit, the Second Wilson Affidavit and an affidavit sworn by Mr Wilson on 25 October 2020 (Third Wilson Affidavit), the exhibits thereto and two “tender bundles”, the first comprising 20 pages and the second comprising 244 pages. The affidavits relied on by MWP were for the most part not in admissible form, included material which could only be taken to be read as a submission, were in parts argumentative and included evidence which was either not relevant or, at best, peripherally relevant to the matters in issue. Objections made by the Australian Representatives to the First Wilson Affidavit were considered and the subject of rulings. However, in the interests of efficiency in the conduct of the hearing, the Australian Representatives did not press specific objections to the Second Wilson Affidavit and the Third Wilson Affidavit. Those affidavits were read and admitted into evidence subject to submissions to be made as to the weight to be afforded to their content.

…

133    The history of the proceeding is set out in detail at [5]-[16] above. First, having sought and been granted leave to be heard MWP first sought to broaden the proceeding to an action for damages against the Australian Representatives and the Trustee, who is not a party. MWP was refused leave to rely on the MWP Application; secondly, MWP failed to comply with Court timetables; thirdly, MWP sought and was granted an adjournment in order to retain legal counsel. But, on the next occasion that the matter was before the Court MWP did not appear by counsel or a solicitor. Mr Wilson continued to appear for MWP; fourthly, on that occasion MWP once again sought a stay of the proceeding or in the alternative an adjournment. Both applications were refused; and fifthly MWP was granted leave to cross-examine Mr Porter over the course of four hours, after which, on the fourth day of hearing, the matter concluded.

134    MWP was entitled and was granted leave to appear as an interested party and to make submissions in relation to the relief sought by the Australian Representatives. However, much of the material it relied on was irrelevant to the matters in issue and, as I have already observed, argumentative and indeed inflammatory. In his cross-examination of Mr Porter, Mr Wilson traversed matters that had little relevance to the matters in issue. Combined with that was MWP’s failure to comply with orders made by the Court and its applications for adjournment. A combination of those factors meant that there were undoubtedly additional costs incurred by the Australian Representatives. In the circumstances, those costs should be borne by MWP.

…    

141    I turn then to the quantum claimed by the Australian Representatives. Ms Farmer has prepared a costs summary in accordance with the requirements of the Costs Practice Note setting out the costs incurred by the Australian Representatives and the amount sought. MWP raises a number of matters in relation to the costs summary and the quantum claimed that do not rise beyond mere assertion. MWP does not rely on any admissible evidence, for example from a costs assessor or similarly qualified person, in relation to the percentage discount applied to estimate an amount equating to party/party costs that would likely be recovered, the hourly rates of the solicitors working on the matter or the tasks undertaken. MWP’s reliance on the absence of evidence proving the contents of the National Guide is also misplaced. The National Guide is a publicly available document. It is not necessary for the Australian Representatives to put it into evidence.

(bold emphasis in original; underline emphasis added)

61    An aspect of her Honour’s reasons of particular relevance to the present proceeding is set out at [112] to [113]:

112    It is next necessary to consider whether an order releasing the Australian Representatives from all liability in respect of any acts done or default by them in the administration should be made. As set out at [12] above, on 21 July 2020 I refused leave to MWP to rely on the MWP Application. At the time the Australian Representatives submitted that, in order to preserve the rights of MWP to bring a claim for the relief that was foreshadowed in that application, any ruling on an order of this nature would have to be deferred or, subject to submissions made, be refused. In that way it would be open to MWP to apply for the relief it sought in the MWP Application in the future in a proceeding properly constituted: see Porter (No 1) at [14]-[15].

113    Despite the passing of time, the circumstances have not changed. MWP may wish to bring an application against the Trustee and/or the Australian Representatives in relation to the administration of Mr Slater’s estate. It should not be precluded from doing so by the making of the orders sought by the Australian Representatives in this proceeding. While I acknowledge and understand the Australian Representatives’ desire for such an order I do not intend to accede to it.

62    Thus, her Honour declined to release Mr Porter and Mr Moretti from all liability with respect to the administration of the bankrupt estate of Mr Slater. Her Honour left open the possibility of MWP making a claim against Mr Porter and Mr Moretti. Of course, the present proceeding includes that claim.

63    In late July 2021, MWP commenced proceeding NSD767/2021 in this Court, seeking an extension of time until 4 October 2021 in which to file a notice of leave to appeal from the orders made by Justice Markovic on 25 June 2021. On 30 July 2021, MWP filed an affidavit of Mr Wilson in support.

64    Proceeding NSD767/2021 was allocated to the docket of Justice Stewart.

65    On 22 October 2021, Mr Wilson sent an email to the Associate to Justice Stewart:

We enclose the Appellant’s revised draft of the Short Minutes of Order, following on various exchanges with the Respondent’s earlier this week.

Since this is, of course, the Appellant’s appeal, and the Appellant has carriage of the draft Order, we do not know why the Respondents have sought to prepare and circulate competing drafts, which conduct is most unhelpful, regrettable and unfortunate. Such typified their egregious non-performance as the former local representatives of the Trustee (Ms Palmer, who is copied) since MWP achieved reciprocal recognition of the Trustee and the Bankruptcy of Slater in August 2016, which it funded and arranged for the benefit of itself, as the principal judgment and petitioning creditor, and all other creditors.

His Honour will note from the enclosed that MWP has also now successfully caveated one of the other many assets of the Bankrupt in Australia, on 15.10.21, at its costs for the benefit of all creditors. There are a multitude of other assets in Australia (including seven Australian corporations and trusts in NSW and Victoria) procured through the fraud the bankrupt was found to have committed, with others, MWP is also now focused on securing, bringing to cash and realising, since Messrs Ernst & Young, LLP vouched and certified such assets at a value in excess of US$69m (admitted into evidence by the NSW CofA in 08.20), as such assets were found by the judgments of Einstein J in the NSW SC, upheld by the HCA on 01.12.11, and the NSW SC CofA in 2012/2013 (as recognised in the ACT and the UK), and an arbitral Tribunal in the UK from 2006-2013, and admitted.

We have also lodged the same through the portal.

(emphasis added)

66    There was no prior agreement of, or advance notice to Ms Farmer, concerning the sending of this email to the Associate to Justice Stewart (or indeed, to the sending of similar emails).

67    On 25 October 2021, Justice Stewart made the following case management orders:

1.    By 22 November 2021, the applicant file and serve:

(a)    an application for leave to appeal conditional on leave being required (Leave Application) and any amended draft notice of appeal; and

(b)    submissions in support of its application for an extension of time filed on 26 July 2021 (Extension Application) and its Leave Application.

2.    By 6 December 2021, the respondents file and serve their submissions in response to the Extension and Leave Applications, and file and serve any interlocutory application seeking security for costs (Security for Costs Application) and submissions in support of the Security for Costs Application.

3.    By 20 December 2021, the applicant file and serve any evidence and submissions in response to any Security for Costs Application, and any submissions in reply to the respondents’ submissions on the Extension and Leave Applications.

4.    By 14 January 2022, the respondents file and serve any submissions in reply on the Security for Costs Application.

…

7.    List the Extension Application, Leave Application and the Security for Costs Application for hearing on a date in February 2022 which date will be fixed after the Full Court list for February 2022 has been published.

(emphasis in original)

68    The hearing in proceeding NSD767/2021 was originally scheduled for 22 February 2022, but was later changed to 1 April 2022.

69    Also on 25 October 2021, Mr Wilson sent an email to the Associate to Justice Stewart which was copied to, inter alia, Ms Farmer, Mr Cronan, Mr Porter and Mr Moretti:

Thank you for your email, please would HH be so kind as to provide us with the citations to all of the authorities referred to during Friday’s directions hearings since, unfortunately the other side did not provide us with the same prior to the hearing, or subsequently despite our requests, so that we were taken by surprise and disadvantaged.

MWP will also be applying to preserve and secure the Macquarie Bank deposit monies and/or for an accounting and disclosure as to what happened to the same, including MWP’s funding that was undertaken to be reimbursed with interest accrued immediately upon the sale in 2019 (secured in favour of KHI), and for preservation and disclosure of all data and documents as to the Local Representative’s role from inception to date, when acting for the Trustees, since we note that no mention of the same is made in the Orders, despite our draft dealing with the same.

70    The Associate to Justice Stewart replied:

The authorities referred to at Friday’s case management can be found in the transcript of proceedings. A transcript may be ordered through Auscript at the following link: Federal Court Transcripts (auscript.com).

71    On 26 November 2021, Justice Stewart made the following orders:

1.    The time by which the applicant is to file and serve:

(a)    an application for leave to appeal conditional on leave being required (Leave Application) and any amended draft notice of appeal; and

(b)    submissions in support of its application for an extension of time filed on 26 July 2021 (Extension Application) and its Leave Application,

be extended to 24 December 2021.

2.    The time by which the respondents are to file and serve:

(a)    their submissions in response to the Extension and Leave Applications;

(b)    any interlocutory application seeking security for costs (Security for Costs Application); and

(c)    their submissions in support of the Security for Costs Application,

be extended to 3 February 2022.

3.    The time by which the applicant is to file and serve:

(a)    any evidence and submissions in response to any Security for Costs Application; and

(b)    any submissions in reply to the respondents’ submissions on the Extension and Leave Applications,

be extended to 11 February 2022.

4.    The time by which the respondents are to file and serve and submissions in reply to the Security for Costs Application be extended to 18 February 2022.

5.    The time by which the parties are to file and serve lists of authorities to be relied on at the hearing of the three applications and provide those authorities to the Associate of Stewart J be extended to 18 February 2022.

6.    The applicant pay the costs of today’s hearing.

(emphasis in original)

72    On 23 December 2021, MWP lodged for filing an application for leave to appeal and an amended draft notice of appeal, together with an affidavit of Mr Wilson and written submissions.

73    On 3 February 2022, Ms Farmer wrote to Mr Wilson seeking payment, by 17 February 2022, of the amount of $29,878.05 due to Mr Porter and Mr Moretti pursuant to the 25 June 2021 orders made by Justice Markovic.

74    On 14 February 2022, Mr Porter and Mr Moretti filed and served an application in proceeding NSD767/2021 seeking security for costs in the event that an extension of time and leave to appeal was granted.

75    On 23 February 2022, Mr Wilson sent an email to the Associate to Justice Stewart (which was copied to, inter alia, Mills Oakley):

Further to our prior email, enclosing MWP’s Reply Submissions, as attached, in further support of our Leave Application, and which has been e-filed, and sealed, we write to advise HH that MWP only received the Respondent’s SFC application, and related documents on 14.02.22 (as per the email enclosed), whereas the same should have been filed and served on 03.02.22, as the Respondent’s had from 24.12.21 to work on the same.

MWP, and its counsel team are working on our evidence and submissions, in answer, which we will complete, file and serve asap, however unfortunately a threshold and very significant issue has arisen as to apparent impropriety by the Respondent’s (sic), which we have raised with them, but as to which we have still not yet received any answer, regrettably. In short it would appear that the English CPR, CCG and implied Harman undertaking and MWP’s rights have been materially breached by the Respondents, who appear to be co-operating and colluding in a manner adverse to MWP, with MWP’s judgment debtor (who owes MWP ≥US$100m), as to which MWP’s rights are reserved.

We shall keep you and HH appraised of progress. We apologise for any slight delay, however as you know, our Mr Wilson has been indisposed.

(italic and underline emphasis in original; bold emphasis added)

76    The Associate to Justice Stewart responded:

Thank you for your email notifying Chambers of the explanation for the late compliance with the date fixed by Order 3 of the Orders made on 26 November 2021.

With regard to the balance of your email, I would invite you to read the Guide to communications with Chambers staff. In particular, I draw attention to paragraphs 2.1(b), 2.4, 3.4, 3.6, 3.7 and section 4.

The contents of the balance of your email are controversial in that it contains allegations about the conduct of the respondents. There is no request for the matter to be listed for case management to ventilate the issues you raise and nor is there an application, ex parte or otherwise, for relief. In the circumstances, his Honour regards your communication as inappropriate and unnecessarily burdensome and has not had regard to it.

You may wish to notify Chambers when documents have been filed late. However, please do not notify Chambers of any new allegations against the respondents (or, indeed, any other person) or other contentious matters. If there are matters in contention that require the attention of the Court then a listing should be sought. Correspondence with Chambers is not the proper medium for airing inter-party grievances.

(bold emphasis in original; italic emphasis added. The underlined text in the original provided a hyperlink to the Guide)

77    The paragraphs of the Guide to communications with Chambers staff referred to in the Associate’s email are as follows:

2.1     The guiding principle for any communications with chambers staff is set out in paragraphs 15.1 and 15.2 of the Central Practice Note, which provides that all communications with chambers staff should:

…

(b)     unless in the nature of an ex parte application, should:

(i)     only occur where it is necessary and appropriate to do so;

(ii)     be uncontroversial; and

(iii)     be “open” (ie. communicated to all parties to the litigation).

…

2.4     Where contact with chambers is necessary and appropriate, the Court encourages parties to, having first appropriately discussed and attempted to resolve the matter between them, communicate any outstanding issues to chambers in a timely manner, so as to avoid disruption or delay to the case management process.

…

3.4     Communications with a judge's associate should generally be confined to matters concerning procedural, administrative or practical matters that are not controversial.

…

3.6     Whilst the below is a non-exhaustive and illustrative list, and may depend on the relevant circumstances, communications regarding administrative and procedural matters which may be uncontroversial include:

(a)     providing consent orders for the judge's consideration and approval;

(b)     providing chambers with agreed dates about when legal counsel for all parties are mutually available;

(c)     clarifying that you cannot attend court for a listed hearing due to a serious personal circumstance (such as a serious illness);

(d)     explaining that there will be an unavoidable and unexpected delay in your attendance at a hearing in court;

(e)     in relation to an upcoming trial:

(i)     arrangements for the display of physical exhibits (especially if they are large and bulky) in the courtroom;

(ii)     arrangements for video or sound recordings to be played;

(iii)     arrangements for approved video or telephone conference links (noting that whether or not video or telephone conference links are appropriate of themselves may be matters of controversy);

(iv)     arrangements for court attendees who have special needs (eg. a witness who has a hearing impairment and requires an interpreter or a hearing loop);

(v)     arrangements regarding bundles of authorities for trial;

(vi)     arrangements for leaving the parties' court books and files in the courtroom overnight;

(f)     communicating with chambers in accordance with an order/direction from the Court to do so.

3.7     Communications (including emails) containing allegations or matters of substance should not be forwarded to chambers without the parties' collective agreement (save for ex parte applications). If an unresolved issue arises between the parties (and they agree in advance that the court's involvement is needed and the manner and nature in which the Court should be advised), it would be uncontroversial if one party sends an email to chambers on behalf of the parties (and copied to all parties) explaining the factual circumstances and requesting a listing. It is generally not appropriate for that email to stray into argument or submissions unless all parties have agreed in advance that all competing views should be (briefly and accurately) clarified to the Court.

…

4.     Inappropriate communications with Chambers

4.1     Whilst the below is a non-exhaustive and illustrative list, and may depend on the relevant circumstances, communications with chambers which are, or may be, inappropriate include:

(a)     attempting to contact a judge directly about a matter for which the judge is responsible outside of a court hearing, or otherwise attempting to gain an unfair advantage or inappropriately influence the conduct of the proceeding;

(b)     seeking advice on matters relating to the Court's rules or whether a certain court document will be accepted for filing. Such enquiries should be directed to registry staff, noting that court staff cannot provide legal advice. The guide to communications with Registry staff can be found here;

(c)     approaching chambers for allocation or duty judge rostering information or making decisions to approach chambers for a duty matter based on a specific judges' rostering arrangements. The relevant duty judge information is posted daily on the Court's website. The court also has specific arrangements in place for expediting matters (see the Central Practice Note) and specific list arrangements for various types of matters including, admiralty matters, corporations list matters and insurance list matters.

(d)     unilateral communications, other than in relation to ex parte and urgent originating applications, particularly in relation to substantive issues in the litigation;

(e)     irrelevant or unnecessarily burdensome communications, for example, copying chambers into email correspondence between the parties which does not require the Court's knowledge or involvement;

(f)     communications that are scandalous or vexatious;

(g)     sending to chambers, or copying chambers into, emails that disclose “without prejudice” communications (see also section 5 of the Guide to Communications with Registry Staff); and

(h)     approaching chambers directly about the timing of the delivery of a reserved judgment. Any enquiries about reserved judgments are best directed to the Law Society or Bar Association in the relevant State or Territory or to the chambers of the Chief Justice (see the Central Practice Note paragraph 16.2).

4.2     Parties should bear in mind that, in certain circumstances, inappropriate conduct towards the court which disrupts the court from carrying out the administration of justice may constitute a contempt of court (see Parts 5 – 8 of the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF)).

(bold and italic emphasis in original; underline emphasis added)

78    Paragraphs 15.1 and 15.2 of the Central Practice Note provide:

15.1     At all times, parties are expected to communicate courteously with each other, the Court and all Court staff.

15.2     In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.

79    On 1 April 2022, Justice Stewart heard MWP’s applications for an extension of time and for leave to appeal; and the security for costs application filed on behalf of Mr Porter and Mr Moretti.

80    MWP was represented by Mr Bennett AC QC in person at the hearing and by Mr Wilson via audio-visual link. Mr Porter and Mr Moretti were represented by Mr Golledge and by Ms Bailey of counsel.

81    During the course of his Honour delivering a judgment at the conclusion of the hearing, Mr Wilson interrupted and the following exchange occurred:

MR WILSON: But there’s been no decision on the issue of the security for costs. Ridiculous. The issue hasn’t even been dealt with.

HIS HONOUR: Mr Wilson, I’ve made a ruling on that. If you continue in the way in which - - -

MR WILSON: There is no event.

HIS HONOUR: Mr Wilson, if you continue in the way in which you’re going now, you will be in contempt of the court.

MR WILSON: Well, you’re just shutting me out.

HIS HONOUR: Your client is well represented here.

MR WILSON: You shut me out earlier - - -

HIS HONOUR: Mr Wilson - - -

MR WILSON: - - - and now you’re shutting me out again.

HIS HONOUR: Just silence that person, please. Mr Wilson, your client is well represented in this court by one of the most senior, respected, knowledgeable and experienced barristers in Australia. Doesn’t need you to intervene from Almaty. Returning to where I was before I was so rudely interrupted.

82    In his affidavit evidence on this application Mr Wilson suggested that “perhaps, again, my microphone was not muted”. This suggestion provides no excuse for the conduct recorded in the transcript.

83    The orders made by Justice Stewart on 1 April 2022 were as follows:

1.    The application for an extension of time be dismissed.

2.    Leave to appeal be refused.

3.    The respondents’ application for security for costs be dismissed.

4.    The proceeding be dismissed with costs, such costs to include all the costs of the proceeding.

5.    The respondents’ costs be quantified on a lump sum basis.

6.    On or before 21 April 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).

7.    On or before 5 May 2022, the applicant file and serve any affdavit (sic) constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

8.    On or before 12 May 2022, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

9.    The quantification of the lump sum be referred to a Registrar of the Court for determination.

(emphasis in original)

84    His Honour’s extempore reasons for making those orders were published as Michael Wilson & Partners Ltd v Porter [2022] FCA 336. It is necessary to quote at some length from his Honour’s reasons for judgment:

8    There were a number of delays in the proceeding below which the primary judge found were solely caused by MWP’s involvement which added considerably to the length of the hearing. Her Honour said that the proceeding, which was characterised as concerning an application for directions as to the distribution of funds under the respondents’ control and approval of their remuneration, should ordinarily have been disposed of within a short timeframe. MWP was represented in the proceeding below by Michael Wilson. Mr Wilson is a director of the company (and presumably the person from whom MWP takes its name) and a solicitor on the roll of solicitors of the Supreme Court of New South Wales. He is resident in Almaty, Kazakhstan.

9    Her Honour found that MWP failed to comply with court timetables, sought and was granted an adjournment in order to retain counsel or a solicitor (other than Mr Wilson) but failed to do so, cross-examined at length traversing matters that had little relevance to the matters in issue, and filed and sought to rely on prolix material much of which was irrelevant to the matters in issue and which was argumentative and inflammatory. All of those matters contributed to the length and complexity of the proceeding.

…

16    On 26 July 2021 at 11:57 pm AEST, MWP lodged an application for an extension of time under r 36.05 to file a notice of appeal, and a draft notice of appeal. The application was accepted for filing and stamped as such on 30 July 2021. However, because it was lodged electronically after 4:30 pm on a business day it is taken to have been filed on the next business day, which in this case was 27 July 2021: r 2.25(3)(b). On that basis, only an extension of one day would be required. Mr Wilson, however, sought an extension of time until 4 October 2021, i.e., a period of more than two months. He said in his affidavit that the reason for seeking such an extension was because he is based abroad and that due to the on-going COVID-19 pandemic it had not been possible for him to travel to Australia as he had intended. Since his application was accompanied by a draft notice of appeal, it is inexplicable why he did not seek only a one day extension, or simply delete the word “draft” from the draft notice of appeal and lodge it for filing some eight hours earlier.

17    At the first case management hearing, the question of whether leave to appeal was required was raised. That led to MWP eventually filing an application for leave to appeal on 23 December 2021.

…

53    As against the fact that there is little at stake in the appeal, consideration is required to be given to what the appeal would entail. As occurred below, MWP is responsible for very considerable delay in the application for leave to appeal being ready for hearing and coming before the Court. Moreover, it has filed prolix, argumentative, and substantially irrelevant material in support of the application for an extension of time and for leave to appeal, and in opposition to the respondents’ conditional security for costs application. It has filed four affidavits by Mr Wilson which, with annexures or exhibits, amount to nearly 600 pages in total. None of that material is identified as having been part of the record below and much of it clearly was not – Mr Wilson seems to labour under the elementary misapprehension that the leave to appeal application and the prospective appeal provide the opportunity for re-litigating the same issues on a fresh corpus of evidence.

54    Mr Wilson has also burdened my Chambers from time to time with argumentative and prolix correspondence, even after it has been pointed out to him that such conduct is inappropriate and he has been told to desist from it. Many of the documents that have been filed are not on the proper form. MWP’s list of authorities extends to 44 items, only seven of which were referred to in submissions, many of which have little or no bearing on the issues, and its bundle of authorities is a staggering 1,166 pages. None of the case authorities in the bundle is in the form required by the Lists of Authorities and Citations Practice Note (GPN-AUTH), i.e., an authorised series of reports (if available) or another series of reports (if the case has not been reported in an authorised series). Frustratingly, the principal cases that were referred to in argument are not on the list.

55    The relevance of the matters documented in the preceding two paragraphs is that I can have no confidence that any appeal will be run narrowly and efficiently and in accordance with the Court’s Rules and Practice Notes. The appeal is likely to be burdensome and difficult. I am fortified in that view by comments of Peter Jackson LJ in MWP v Emmott 2019 EWCA at [70] about another part of the overall dispute about which this proceeding is only a very small part as discussed at [7] above:

Any court in this jurisdiction that has to consider this dispute in future would do well to remember that the overriding objective in civil proceedings includes a duty on the court to save expense, deal with the case expeditiously and fairly, and allot to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; further, that the parties have a duty to help the court to achieve this. This pathological litigation has already consumed far too great a share of the court’s resources and if it continues judges will doubtless be astute to allow the parties only an appropriate allotment of court time.

(emphasis added)

85    Later that day, Mr Wilson sent an email to the Associate to Justice Stewart (which was copied to, inter alia, Mills Oakley):

Thank you for your email.

Please advise from whom we can urgently source and obtain a Transcript at the FCA as we shall be taking the matter forward, and appealing and seeking to rescind the same, which with respect, we regard as obviously wrong, since MWP has proven in Australia and the UK, and such has been found and admitted that this dispute is all about the Temujin Partnership and its ≥US$76m of assets in Australia, including through ≥8 Australian corporations and ≥5 trusts, as the NSWCA so recently concurred on 17.12.21.

As HH knows, in this Estate MWP has certified, final, binding priority costs which comprise judgment debts of ≥US$1750,000 through our Default and Final Costs Certificates, and which are not subservient to the alleged costs of the Respondents.

(emphasis added)

86    On 4 April 2022, Mr Wilson sent a further email to the Associate to Justice Stewart (which was copied to, inter alia, Mills Oakley):

Further to our prior email, please note that we have already ordered a Transcript, accordingly, we do not need to trouble you further, in that regard.

We note that, as we advised the Court in writing well in advance of the hearing, and as is clear from MWP’s Skeleton, Mr Wilson of MWP appeared in order to deal with the misconceived and erroneous SFC application (which is clear on the law and evidence), as well as all related costs issues, and that Mr Bennett AO QC was not instructed in that regard, nevertheless, and despite the same, most unfortunately and regrettably HH refused to let Mr Wilson address the Court, and deal with important issues relating to the same.

It is not correct that MWP has not suffered substantial prejudice, as a judgment creditor with certified, final and binding priority judgment debts and costs of the Estate, in addition to its funding, and contrary to the assertion of HH, it is not correct that MWP’s Authorities Bundle did not comply with the rules.

The Respondents have acted in material and ongoing breach of the CPR, CCG and implied Harman undertaking, being in possession of documents to which they are not entitled, and which they were not entitled to have and deploy, so that a Notice to Produce was entirely justified, in order to prove the same.

MWP has proven, and it has been admitted there are copious assets of ≥US$69m held in, managed and controlled through the jurisdiction, including of the Bankrupt’s Estate, and that MWP has substantial assets in the jurisdiction, and has always had, and which issues are res-judicata through judgments comprising part of the law of Australia, by which this Court is bound.

MWP’s position and rights are fully reserved, and in all respects, given what so most unfortunately transpired which arose, in a manner exhibiting apparent and apprehended bias. MWP was entitled to a fair and just hearing of the issues, but was shut out.

(italic emphasis in original; bold emphasis added)

87    On or about 29 April 2022, MWP served by email on Mills Oakley (as well as Mr Porter and Mr Moretti) an unsealed application for special leave to appeal to the High Court of Australia from the 1 April 2022 orders (29 April 2022 special leave application).

88    On 9 May 2022, MWP filed an interlocutory application, dated 5 May 2022, in proceeding NSD767/2021 (9 May 2022 application), seeking the following orders:

1.    The Appellant/Applicant/Participant applies for an extension of time under rule 36.05 of and to the deadlines as currently set out in the Order of Justice A. Stewart of 1 April 2022 (the “Order”), and also applies for the timetable as set out in the Order to be vacated, varied and/or amended.

2.    The Order shall be rescinded, set aside and varied because, in breach of the ACTSC Rules, the CPR, the CCG, the implied Harman undertaking and related law, the Respondents improperly sought, obtained and purported to put in evidence and documents before this Court that they are and were not entitled to ever have received, or to have in their possession, custody and control, and which they had no rights to so use and deploy, acting improperly together with the lawyers for Mr Emmott, one of the Temujin Partners of the Bankrupt in a manner adverse to the Appellant/Applicant and the best interests of the Estate;

3.    Orders 5-9 shall be rescinded, set-aside and varied because no proper or valid application was ever made, filed and served, with evidence in support, listed and heard on notice seeking a gross sum costs orders and, accordingly the Applicant was denied proper, fair and due process and equal treatment, and was deprived of the opportunity to properly respond, deal with the same, and to be heard.

4.    Given that permission to appeal was not granted and the appeal did not proceed further, the SFC Application was not called, considered and heard, and MWP was not allowed to call its Notice to Produce and to present its evidence and submissions, accordingly, there was no proper basis to ever have granted or allowed, in principle, subject to assessment, and whether on a gross sum, or other basis, any fees and costs of the SFC Application, without MWP having a chance to put and present its case. Accordingly, the relevant orders should be rescinded and set-aside, and declared void ab-intio (sic);

5.    The grounds and evidence in support of the application will be set out in the fifth affidavit of M.E. Wilson, which will be filed and served, subsequently.

6.    Costs in the Appeal/Application.

7.    Liberty to apply.

(emphasis in original)

89    On 11 May 2022, MWP commenced a proceeding (numbered S68/2022) in the High Court of Australia (High Court of Australia proceeding) against Mr Porter, Mr Moretti and this Court (as the third defendant) and its judges for the following relief (as written):

1.    To the extent necessary, a declaration that the Federal Court lacked jurisdiction to hear and determine the application by the defendants for their costs of administration and realisation of assets of a bankrupt’s estate in Australia.

2.    A writ of certiorari issue directed to the third defendant to quash the decisions of the Federal Court of Australia made (a) on 25 June 2021 in proceedings NSD 428 of 2020; and; and (b) made on 1 April 2022 in proceedings NSD 767 of 2021.

3.    If necessary, a writ of mandamus compelling Stewart J of the Federal Court of Australia, as the third defendant, to determine the matter according to the law.

4.    To the extent necessary, an extension of time within which to bring this application.

90    This proceeding replaced the special leave application.

91    On 3 June 2022, the 9 May 2022 application was listed before Justice Stewart. Mr Wilson appeared for MWP and sought, orally, a stay of the costs order made on 1 April 2022. That application was refused.

92    His Honour made the following orders:

1.    In respect of the orders made on 1 April 2022:

(a)    Orders 7 and 8 be vacated; and

(b)    Order 9 be stayed pending the determination of the applicant’s application in proceeding S68/2022 in the High Court of Australia.

2.    The applicant’s interlocutory application filed on 6 May 2022 be listed for hearing on 13 or 15 July 2022, the date to be confirmed following the applicant, before 5:00 pm on 6 June 2022, notifying the Associate to Stewart J which of those two dates is preferable.

3.    The applicant file and serve submissions of no more than five pages on or before 6 July 2022.

4.    The respondents file and serve submissions of no more than five pages on or before 11 July 2022.

5.    The applicant’s oral application to stay Order 4 of the orders made on 1 April 2022 be dismissed, the reasons for which dismissal are recorded in the transcript which is authorised to be released to the parties upon request.

93    On 6 June 2022, Mr Wilson sent an email to the Court requesting that the proceeding be listed at 2:00pm on 15 July 2022. That request was acceded to.

94    On 15 July 2022, Justice Stewart heard MWP’s application to adjourn the hearing of the 9 May 2022 application. Mr Wilson represented MWP; and Mr Golledge and Ms Bailey represented Mr Porter and Mr Moretti.

95    At the conclusion of that hearing, Justice Stewart made the following orders:

1.    The applicant’s application to adjourn the hearing of the interlocutory application listed for today be refused.

2.    The applicant file and serve any supplementary written submissions (limited to five pages) dealing with the applicable legal principles to the interlocutory application by 25 July 2022.

3.    The respondents file and serve any written submissions (limited to three pages) in response by 29 July 2022.

4.    Judgment be thereafter reserved.

96    During the course of that hearing, the following exchange occurred:

MR WILSON: And at paragraph 2, she recites how an application made to vacate a listing based on unavailability of counsel – and this is in the headnote 3. She refers to the factors relevant to vacating and relisting and the overarching test is that the applicant in this case MWP has to satisfy the court the hearing should be vacated. Of course, what we have in this case is unchallenged evidence of medical nonavailability which is a clearly force majeure fact that’s through no fault of MWP. She then goes on about other factors that may militate against it, one of which is delay. Well, in this case, there was no delay. On the very day we discovered that Mr Thomas wasn’t available, we informed the court. The court requested that day - - -

HIS HONOUR: Mr Wilson, I’m sorry to - - -

MR WILSON: - - - a evidence from the barrister which was provided on 11 May – 11 July promptly and then recited in the affidavit of 14 July.

HIS HONOUR: Mr Wilson, you seem to - - -

MR WILSON: She also states whether delay – what delay will - - -

HIS HONOUR: Mr Wilson, you seem to be arguing against an order that I’ve already made, which is that we don’t adjourn - - -

MR WILSON: I’m not, your Honour.

HIS HONOUR: Which is that we don’t adjourn - - -

MR WILSON: I’m not. I’m asking - - -

HIS HONOUR: Mr Wilson.

MR WILSON: I’m asking for time - - -

HIS HONOUR: Just let me finish speaking. Let me finish - - -

MR WILSON: - - - to deal with the submissions on the authority that I’ve only - - -

HIS HONOUR: Mr Wilson.

MR WILSON: - - - just received, your Honour. You might recall you shut me out at the hearing itself three times.

HIS HONOUR: Mr Wilson, it’s going to be helpful to me if you address things that are actually relevant and before me. And what is not before me currently is any application for an adjournment, because I’ve dismissed that. What is before me now is your interlocutory application to set aside - - -

MR WILSON: I’m now applying, your Honour - - -

HIS HONOUR: - - - to set aside – you’re interrupting me – to set aside previous orders made by me. It will assist me if you have anything to say on that subject in support of your interlocutory application.

(emphasis added)

97    In his affidavit evidence on this application Mr Wilson stated with respect to the above passage “no context is provided, and obviously given my knowledge of this litigation, I was fully aware of what was or was not relevant, and when dealing with courts and judges one can never be sure, because there is a high level of inconsistency, much to MWP’s regret”.

98    On 3 August 2022, Justice Stewart made the following orders:

1.    The applicant’s interlocutory application dated 5 May 2022 be dismissed.

2.    Orders 7 and 8 of 1 April 2022, which were vacated by order 1(a) on 3 June 2022, be reinstated as follows:

(a)     within 14 days of these orders, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

(b)     within 7 days of service of any affidavit by the applicant, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

3.     Within seven days of these orders, the respondents file and serve written submissions of no more than two pages in support of any order that they seek in relation to the costs of the interlocutory application referred to in order 1.

4.     Within seven days of service on it of the submissions referred to in order 3, the applicant file and serve written submissions of no more than three pages in support of any order that it seeks in relation to the costs of the interlocutory application referred to in order 1 and in response to the respondents’ submissions.

5.     Within seven days of service on them of the submissions referred to in order 4, the respondents file and serve written submissions of no more than two pages in reply.

6.     The costs of the interlocutory application referred to in order 1 be determined on the papers.

99    His Honour published his reasons for doing so: Michael Wilson & Partners Ltd v Porter (No 2) [2022] FCA 901. Again, it is necessary to quote at some length from his Honour’s reasons for judgment:

12    The interlocutory application, which was filed on 6 May 2022, first came before me for case management on 3 June 2022. I was anxious to bring the matter on for hearing quickly, particularly in view of its restricted nature and the considerable delay generally in the proceedings between MWP and the respondents, much of which arose because of the manner in which MWP – and Mr Wilson in particular – conducted the case, as explained in my previous reasons at [8]-[9] and [16]-[17]. I proposed to hear it on 10 June 2022. Mr Wilson resisted that course saying that he had medical issues which meant that he was “not able to work normally until after 30 June” and that he was instructing “leading counsel” in the case. He did not have counsel’s availability during the case management hearing.

13     In the event, I gave Mr Wilson a choice of two dates in the middle of July and a few days in which to indicate which of those dates was suitable. On 6 June 2022, MWP advised that the date of 15 July 2022 was suitable so the hearing was listed for that day. I also directed that MWP file and serve submissions of no more than five pages on or before 6 July 2022.

14    No submissions were filed by MWP on 6 July 2022. Rather, very early on 8 July 2022 submissions of some seven pages were filed. They were signed by Mr Wilson as director of MWP, and not by “leading counsel” as had been indicated, or indeed by any barrister.

15     Much later on 8 July 2022, Mr Wilson, by email to my chambers, requested an adjournment of the 15 July hearing on the basis that “our counsel” had been diagnosed with Covid-19 and was required to isolate until at least the end of the following week, ie, Friday one week later which was the designated day for the hearing. It later emerged that the barrister in question is a junior barrister and not a silk as I had understood the reference to “leading counsel” to mean. The respondents indicated that they opposed the adjournment application. My chambers advised the parties that the adjournment application would be dealt with on 15 July when the matter was called.

16     When the matter was called on 15 July 2022, the respondents did not oppose me granting Mr Wilson leave to appear on MWP’s behalf and to do so by audio-video link. I granted him that leave. After hearing submissions from him and from senior counsel on behalf of the respondents, I dismissed the adjournment application and said that I would give my reasons later. These are my reasons, although it should be noted that I in any event gave Mr Wilson another 10 days to file further written submissions which he did. Those are also not signed by counsel, but rather by Mr Wilson (or possibly some other officer) on behalf of MWP.

17    First, the application is not a difficult or involved one, and should by its nature be dealt with quickly. It had been considerably delayed by or at the instance of MWP. The respondents are prejudiced by the matter being drawn out further at inevitable extra cost and, if successful, on being kept from what they are owed. As I will get to, an application of this nature has to be brought within a narrow exception to the principle of finality. So long as it remains undetermined, the finality of the orders previously made and now challenged in the application is undermined and cast in doubt. Hence the inherent urgency in the matter.

18     Secondly, Mr Wilson, a solicitor with rights of appearance in this Court, was available to appear on behalf of MWP. He signed and, on the face of it, prepared the written submissions – in form, style and substance they have no hallmarks of having been prepared by a barrister. Although he had apparently briefed counsel to appear, Mr Wilson unusually did not brief counsel to prepare submissions. Also, he had known since 7 July 2022 that his counsel of choice was not available so he had had plenty of time to prepare to appear himself if he was not able to brief another barrister.

19     Thirdly, Mr Wilson is intimately familiar with the matter. In this regard, as mentioned, he appeared for MWP before Markovic J in the five-day hearing which led to the judgment in respect of which leave to appeal was sought. Mr Wilson has also deposed seven affidavits in the proceeding before me and had proposed to address me on the security for costs application that was before me on 1 April 2022. Indeed, also as mentioned, MWP’s principal complaint said to justify revisiting the orders made on that day is that I did not give Mr Wilson an opportunity to address me when he was ready and able to do so. It would be a matter of some irony if, on that complaint, Mr Wilson was not in a position to address me on the application to revisit the orders.

…

Discussion

42    It is convenient to deal with the lump-sum costs orders first. There is no basis at all on which they can or should be reconsidered. First, that is not a matter on which it was said that Mr Wilson would be responsible for or address the Court. It was squarely within the announced remit of Mr Bennett. Secondly, Mr Bennett did not oppose a lump-sum costs order and he agreed to the proposed timetable for the procedure set out in the Court’s Costs Practice Note. Thirdly, no submission has been made, even now, as to why a lump-sum costs order should not have been made, other than the submission by Mr Wilson that no application for such an order was filed. That is obviously no obstacle to such an application being made orally, as Mr Golledge did from the Bar. Indeed, r 17.01(3) expressly provides that a party may make an oral application for an interlocutory order at a hearing. Mr Wilson’s submission that his “experience” in the NSW Supreme Court and Court of Appeal is against such an approach is not only doubtful but also entirely irrelevant to the practice and rules of this Court.

43    I therefore reject the application to reconsider the lump-sum costs orders.

44    Turning now to the application to reconsider the order that MWP pay the costs of the respondents’ security for costs application, I accept that I was more hasty and emphatic than what I might have been in denying Mr Wilson the opportunity to address me immediately before the adjournment. I had in mind that he was responsible for MWP’s “opposition to the application for security for costs”, as I had been advised, which had not yet arisen. Mr Bennett had addressed me on the application for leave to appeal, including on the costs of that application and he had made a submission on the costs of the application for security for costs in the event that leave to appeal was refused. As events transpired, any undue haste and emphasis at that point caused no prejudice and came to nought.

45    That is because after having initially pronounced that MWP pay the respondents’ costs on the security for costs application, on the application of Mr Bennett I withdrew that order and took Mr Bennett’s further submissions on that question. There was no restriction on Mr Bennett making any submission that he chose to make, and there was also no restriction on him telling me that Mr Wilson would make submissions on that question. There was also no restriction on Mr Wilson saying that he wished to make submissions on that question. The submissions were made and heard, and I told Mr Golledge that I did not require to hear him. Even then, neither Mr Bennett nor Mr Wilson said that Mr Wilson had anything to say. I then delivered ex tempore reasons and pronounced an order.

46    Even then, Mr Wilson said nothing. There was then a discussion about timetabling on the lump-sum assessment, and I began pronouncing orders in relation to that. It was only then that Mr Wilson rudely, and contemptuously, interrupted, including by describing what had occurred as “ridiculous”. He proceeded to seek to argue against an order that had already been pronounced and on which Mr Bennett had twice previously made submissions.

47    From that analysis, it is abundantly clear that MWP had every opportunity to, and by senior counsel in fact did, make submissions on the question of the costs of the moot security for costs application. In the circumstances, I am not satisfied that MWP was denied a sufficient opportunity to present its case and there is no basis to reconsider the order that I made on that question.

48    In view of that conclusion, there is no cause to consider the submissions made by Mr Wilson on why a different costs order should have been made. Those matters simply do not arise.

49    To the extent that any discretion is otherwise enlivened on the question of reconsideration of the order, I would not exercise it. That is both because MWP was not denied the opportunity to present its case and address me on the question, and because what is at stake turns out to be a relatively trivial amount of costs on an interlocutory application – the respondents’ costs summary for the whole proceeding claims $50,000 of which only a part is in respect of the security for costs application. By the present interlocutory application, MWP seeks to litigate about those costs, which is against the principle of finality and doubtfully consistent with the overarching purpose of the civil practice and procedure provisions. Mr Wilson said that there was some principle at stake, but it has not been identified and I cannot see it. Eventually, enough is enough. This litigation must end.

(bold emphasis added. The reference in paragraph 2 to his Honour’s previous reasons is to Michael Wilson & Partners Ltd v Porter [2022] FCA 336])

100    On 10 August 2022, Mr Wilson sent an email to the Associate to Justice Stewart (which was copied to, inter alia, Mills Oakley):

We refer to the enclosed, and will let you have a list of Errata for correction under the “slip” rule, for example, MWP’s Submissions were drafted by Mr A. Tokley SC, who also settled the same.

MWP’s rights are fully reserved, and in all respects, we shall be taking matters further, including the fact we are confident of success before the HCA, given the OECD Model Law, and the Law of Australia. The actual and apparent bias of His Honour is plain for all to see.

(italic emphasis in original; bold emphasis added)

101    On the same day and in accordance with the orders made on 3 August 2022 in proceeding NSD767/2021, Mr Porter and Mr Moretti filed and served written submissions in which they sought their costs of the 9 May 2022 application from MWP on an indemnity basis.

102    On 17 August 2022, Keane J dismissed the High Court of Australia proceeding and ordered that MWP pay Mr Porter and Mr Moretti’s costs of that proceeding.

103    On the same day, MWP failed to comply with the order made on 3 August 2022 requiring it to file its written submissions in proceeding NSD767/2021.

104    On 24 August 2022 in proceeding NSD767/2021, MWP filed and served its submissions of four pages, with no explanation for its non-compliance with the 3 August 2022 orders.

105    MWP’s submissions included:

19.    As is apparent from the Judgment of 03.08.22 and indeed the prior judgments of Stewart J, unfortunately, it has become clear that His Honour is apparently and actually biased against MWP and has lost all sense of justice, even handedness.

20.    For the reasons set out above, there should be no order as to costs, costs should not be ordered on the indemnity rather than standard basis, and there should be no lump sum costs order and costs assessment procedure on the papers or otherwise.

21.    The Court and His Honour have entirely lost sight of the reality of this matter, where but for MWP there would never have been an estate, as MWP is a judgment creditor, but for MWP, its work and funding, the foreign main proceeding would never have been reciprocally recognised in Australia, but for MWP there would be no trustees and local representatives authorised in Australia, but for MWP there would be no real estate and other assets in Australia to bring to account, and but for MWP there would have been no property to rent out and/or sell, and there would have been no sale process.

22.    In particular, the Court has entirely lost sight of the fact that bankruptcy is a collective remedy and that the “pari passu” principle prevails.

23.    In this case, MWP is not only a judgment creditor, but because MWP funded the bankruptcy of Mr Slater, the appointment of the trustees and their work, the recognition in Australia and the appointment of the local representatives and some of their work, as well as funding the property, repairs, maintenance and preparation for sale, and because of the default and final costs certificates in its favour, MWP is also a preferred creditor with priority costs that rank above and in preference to the unsecured and uncertified costs of the Respondents, so that the Court has wrongly caused a very material breach of the fundamental “pari passu” principle and breach of MWP’s rights as a prior-raking creditor.

24.    The Court’s conduct losing the sight of all these matters is bringing and has brought the administration of justice into disrepute, and the Court has sought to grant priority that simply does not exist in law and fact to the local representatives who have no priority certified costs.

(italic emphasis in original; bold emphasis added)

106    On 26 August 2022, Justice Stewart made the following orders (26 August 2022 orders):

1.    The applicant pay the respondents’ costs of the applicant’s interlocutory application filed on 6 May 2022 on an indemnity basis.

2.    The respondents’ costs of the interlocutory application be determined on a lump-sum basis.

3.    On or before 16 September 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).

4.    Within 14 days of service on it of the respondents’ costs summary pursuant to order 3, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

5.    Within seven days of service of the applicant’s costs response pursuant to order 4, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

6.     The determination of the lump-sum costs referred to in order 2 be referred to the Registrar of the Court to whom the determination of the lump-sum costs of the application for leave to appeal has been referred.

107    His Honour published his reasons for doing so: Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998. Once again, it is necessary to quote at some length from his Honour’s reasons for judgment:

Liability for costs?

6    The usual rule is that the successful party is entitled to its costs. MWP submits that it was successful in establishing various factual matters, but that is irrelevant because it is the ultimate result that is the event on which the ordinary liability for costs turns. The respondents were wholly successful in the application which was dismissed. Indeed, MWP failed to establish any basis to reconsider the orders, let alone rescind or vary them. There is not a single issue in contention between the parties on which MWP succeeded. MWP must therefore pay the respondents’ costs of the interlocutory application.

Indemnity costs?

…

11    Turning now to the identified circumstances, first, the interlocutory application was shockingly poorly prepared and run which had the result that the respondents were unreasonably subjected to the expenditure of costs which they should not have had to face. In that regard:

(1)     The judgment which MWP by its interlocutory application sought to reopen was delivered on 1 April 2022, whereas the interlocutory application was not filed until 6 May 2022. In the meanwhile, the respondents had already acted on one of the orders, namely order 6 which required them to file and serve a costs summary affidavit by 21 April 2022, which action would have been wasted had MWP’s application to reopen and rescind the order that the costs be determined on a lump-sum basis been successful. In short, MWP substantially delayed bringing the application, leading to inevitable expense.

(2)     Compounding the delay, MWP did not file its affidavit supporting the application until 16 May 2022. That affidavit is 16 pages and is referred to as the fifth affidavit of Michael Wilson. Mr Wilson is a NSW solicitor – albeit based not in Australia but in Kazakhstan, a principal of MWP, represented MWP in the proceeding and appeared remotely for MWP at all case management hearings and at the hearing of the interlocutory application.

(3)     The fifth affidavit of Michael Wilson consisted entirely of irrelevant material. Paragraphs 1-7 are introductory and attest to no relevant fact. Paragraph 8 is submission. Paragraph 9 is irrelevant background. Paragraphs 10-12 refer to a parallel although irrelevant proceeding brought by MWP in the High Court of Australia (which, incidentally, was dismissed by an unreported judgment of Keane J on 17 August 2022). Paragraph 13 is submission. Paragraphs 14-29 deal with historical matters preceding the 1 April orders, including proceedings in the Eastern Caribbean Supreme Court and the High Court of England and Wales, which are entirely irrelevant. Paragraphs 30-51 deal with proceedings in the Supreme Court of the ACT which are wholly irrelevant to the interlocutory application. Paragraphs 52-56 are submissions. Paragraphs 57-60 are irrelevant. Paragraphs 61-71 are submission.

(4)     The fifth affidavit of Michael Wilson referred to Exhibit MEW-5, but the exhibit was not filed with the affidavit.

(5)     On 3 June 2022, there was a case management hearing on the interlocutory application. At the case management hearing, I proposed that the application be heard a week later, but Mr Wilson for MWP said that that was not possible because he was going to instruct “leading counsel” – which, if that was intended, should already have been done – and because he (Mr Wilson) was “not able to work normally until after 30 June” on account of unidentified and obscurely referred to medical issues. By indulgence to MWP, orders were made for the matter to be heard in mid-July with a timetable for submissions. I drew to Mr Wilson’s attention that “the biggest hurdle” that MWP was going to face in its interlocutory application was “the principle of finality” and that “the focus of the submissions” should be on that.

(6)     On 3 June 2022, after the case management hearing, MWP again filed the fifth affidavit of Michael Wilson, this time with the 164-page Exhibit MEW-5 attached – presumably because it was pointed out in the case management hearing that the exhibit had not been filed, despite Mr Wilson’s insistence to the contrary. The only part of that exhibit relevant to the interlocutory application is the 30-page transcript of the hearing on 1 April 2022.

(7)     On 6 July 2022, MWP filed the sixth affidavit of Michael Wilson. Like the fifth affidavit, it contained only irrelevant material. Paragraphs 1-10 are introductory and attest to no relevant fact. Paragraph 11 deals with MWP’s case in the High Court of Australia, which is irrelevant. Paragraphs 12-17 deal with a judgment in the High Court of England and Wales on 17 June 2022, ie, long after the 1 April orders, which is irrelevant. Paragraphs 18-19 are submission.

(8)     The sixth affidavit of Michael Wilson refers to Exhibit MEW-6. It is 50 pages and is wholly irrelevant.

(9)     On 8 July 2022, two days later than it was required to have done pursuant to the orders of 3 June 2022, MWP filed its submissions on the interlocutory application. The submissions failed to identify the basis on which it was said that the orders of 1 April 2022 should be reconsidered, failed to address the principle of finality and canvassed a number of irrelevant matters. As I said in MPW No 2 (at [18]), “in form, style and substance they have no hallmarks of having been prepared by a barrister” despite having been told that MWP intended briefing “leading counsel”. The submissions were of essentially no value and merely burdened the Court and the respondents.

(I mention as an aside that, in its submissions on costs, MWP says that its submissions on the interlocutory application were prepared by Mr A Tokley QC and that I had been wrong to “jump to the conclusion” that they were not prepared by counsel. MWP submits that they “were clearly in the style, layout and format and had all of the hallmarks of having been” prepared by counsel. Aside from noting that the submissions were signed by Mr Wilson and not by counsel and that in answer to a direct question from me after I had dismissed MWP’s application for an adjournment on 15 July 2022, Mr Wilson said, in conflict with what he now says, that MWP’s submissions had been prepared by Mr R Thomas of counsel (T8:9-11), I find it quite unbelievable that senior counsel prepared the embarrassingly rambling, irrelevant and hopeless submissions that were filed by MWP on the interlocutory application. If indeed the submissions were prepared by counsel, it is no wonder that counsel did not sign them – no self-respecting counsel, let alone senior counsel, would have.)

(10)    At the hearing, MWP also relied on the fourth affidavit of Michael Wilson which had been filed in the security for costs application. It is 522 pages including its exhibit and wholly irrelevant to the issues on the interlocutory application. In it, Mr Wilson makes many scathing and irrelevant personal attacks on the respondents’ solicitor. The result was that significant time was taken up in the hearing having to deal with objections to that material, much of which was struck out, on the basis that it was scandalous and vexatious.

(11)     In oral submissions, Mr Wilson for MWP canvassed irrelevant material and presented a truly scatter-gun, or, perhaps, kitchen-sink, argument. He repeatedly applied for an adjournment even after his application for an adjournment had been (repeatedly) dismissed. He also referred to many irrelevant authorities, in particular English authorities when the issue at hand was one of practice and procedure of this Court, a matter on which the English authorities said nothing relevant. Mr Wilson even referred to the European Convention on Human Rights, without explaining how it could possibly have applied or been relevant on the interlocutory application. That conduct wasted time in the hearing.

12    Also relevant to the poor conduct of the interlocutory application is MWP’s submissions on costs. Those submissions seek to re-argue points that Mr Wilson argued and which I rejected in the interlocutory application. They take issue with my findings and conclusions in the interlocutory application and again seek to argue the irrelevant point about the respondents allegedly having relied on evidence contrary to implied undertakings made by them to other courts.

13     Secondly, MWP made scandalous allegations that ought never to have been made, which were irrelevant to the issues on the interlocutory application and for which there was no apparent foundation. To identify those allegations in these reasons would serve merely to make the allegations public and thereby defeat the reason they were struck out. I will therefore say no more about them. It suffices to observe that MWP’s Mr Wilson casts allegations around like confetti at a wedding without the least regard for their relevance to the issues at hand or whether they can be substantiated.

14     Also relevant to the scandalous allegations made by MWP are MWP’s submissions on costs. Those submissions include the following:

(1)    It is apparent from MWP No 2, “and indeed the prior judgments of Stewart J, unfortunately, it has become clear that His Honour is apparently and actually biased against MWP and has lost all sense of justice, even handedness” (sic).

(2)    “The Court and His Honour have entirely lost sight of the reality of this matter”.

(3)    “The Court’s conduct losing the sight of all these matters is bringing and has brought the administration of justice into disrepute.”

15     It is to be noted that despite those allegations, MWP has made no application that I disqualify myself. Beyond bald statements of conclusion, it has also not identified any basis upon which it is said that I am both apparently and actually biased in the matter. Considering all the circumstances on the fiction that MWP’s submissions constitute an application that I disqualify myself from continuing to deal with the matter, I am satisfied that a fair‑minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]; Charisteas v Charisteas [2021] HCA 29; 393 ALR 389 at [11]. Rather, MWP’s allegations ironically serve only to demonstrate the extent to which Mr Wilson has entirely lost sight of the reality of the matter and how, if anything, it is MWP’s approach to the litigation that brings the administration of justice into disrepute.

16     Thirdly, MWP’s interlocutory application was hopeless and should never have been brought. Despite the very considerable amount of material filed by MWP in the application, and the broad ranging and scandalous submissions, the application ultimately boiled down to only two issues.

17    The one issue was whether there was any basis to reconsider the order that the costs be determined on a lump-sum basis and, if the order was reconsidered, whether it should be rescinded or varied. No reasonably arguable basis was advanced in support of MWP’s position on either of those matters: MWP No 2 at [42]. It was plainly just and proper to order that the costs be assessed on a lump-sum basis, and in any event there could be no possible prejudice to MWP arising from such an order. It is scandalous that MWP sought to revisit that order.

…

19    Fourthly, as mentioned, the interlocutory application sought to reconsider and rescind or vary orders the consequences of which caused MWP limited prejudice – the lump-sum costs order caused no prejudice and the costs of the security for costs application amount to considerably less than $50,000. In short, there was very little at stake in the interlocutory application. To have brought the interlocutory application, and in particular in such a delayed and burdensome way and with so little foundation, was contrary to the obligations of MWP to conduct the proceeding consistent with the overarching purpose of the civil practice and procedure provisions, namely as quickly, inexpensively and efficiently as possible – as required by s 37N(1) of the Federal Court of Australia Act 1976 (Cth).

…

An excursus

30    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 that need be explored any further, let alone decided, now.

31     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 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 forensic judgments called for during the case independently.

(emphasis added)

108    On 12 September 2022, Mr Wilson sent an email to the Associate to Justice Stewart (which was copied to, inter alia, Mills Oakley) (as written):

We enclose a copy of the Order of the High Court of Australia of 08.09.22, finally dismissing Mr Emmott’s misconceived and flawed challenge to the jurisdiction of the Courts of his own country, and where he is and has always been domiciled, including for tax purposes, as he personally confirmed on oath and during his cross-examination before the Lord Millett and other members of a Tribunal, as follows:

23 MS DAVIES: Where are you domiciled?

24 A. I’m domiciled in Australia.

25 THE CHAIRMAN: That is the point.

138

1 MS DAVIES: He is a non-dom.

2 A. I’m a non-dom.

We also enclose the final Order of HHJ Pelling QC of 17.06.22, consequent on his Judgments at [2022] EWHC 1550 and [2022] EWHC 1957 and Ruling of 26.08.22 dismissing a re-opening application, as a result of which with effect from 17.06.22, the former WWFO was rescinded, an inquiry ordered, with costs in favour of MWP, and permission to appeal refused, so that the Respondent’s SFC application was always doomed to fail and misconceived, just as we always said it was.

Finally, please advise His Honour that MWP is represented by Mr Brian Doctor QC of Fountain Court Chambers in the UK and the BVI, as part of its Counsel Team.

We shall be taking matters further, including with the replacement Trustees of the Estate, given the material breaches of the Insolvency Act and Rules of the foreign main proceedings, the pari-passu principle given that bankruptcy is a collective remedy, MWP’s contractual rights under the terms of the funding provided.

(emphasis in original)

109    On the same day, the Associate to Justice Stewart responded:

On 23 February 2022, you were directed to the Court’s Guide to communications with Chambers staff. I would invite you to read that Guide again. Your email below is not only wholly irrelevant, it is also inappropriate.

Please refrain from sending any further communications to Chambers unless the communication is strictly in accordance with the linked Guide. I note that, as the remaining costs matters have been referred to a Registrar, there is at present no live matter before Justice Stewart.

(the underlined text in the original paragraph provided a hyperlink to the Guide)

110    On 7 October 2022, Mr Porter and Mr Moretti filed their Bill of Costs in the High Court of Australia proceeding (7 October 2022 Bill of Costs).

111    Between 6 and 13 December 2022, Mr Wilson had the following exchanges with the Deputy Registrar of the High Court of Australia:

(1)    on 6 December 2022, Mr Wilson wrote:

… please note for the record that MWP objects to, opposes and does not agree with the desk-top on-the-papers only rough ball-park estimate

Please confirm the deadline to file the Notice of Objection is 14.12.22, and provide the requisite standard form to be completed, and that should be used. as well as any required payment in form and bank account (including BSB) details for payment-in of the A$1,250.00 to the HCA Suitors’ Fund, and its co-ordinates. ;

(2)    on 7 December 2022, the Deputy Registrar wrote:

Your description “desk-top on-the-papers only rough ball-park estimate” grossly mischaracterises the careful process undertaken in arriving at the estimate.

There is no prescribed form for a notice of objection. The first page of the foreshadowed notice should be set out in the manner of other documents that you have prepared and filed in High Court matters, and it should be signed by an Australian legal practitioner. You will find the other requirements set out in r 57.02.2 of the High Court Rules 2004 (Cth).

The deadline for the filing of a notice of objection is 4:00pm AEDT (Sydney time) on 14 December 2022.

…

(italic emphasis in original; bold emphasis added);

(3)    on 13 December 2022 the following exchange occurred:

(a)    Mr Wilson:

Thankyou for your email, as per HCA Rule 57.1.04, we will file and serve on a Notice of Objection under rule 57.02, and pay A$1,250 into the so-called Suitors Fund.

There is no 4pm deadline at all in the Rules, or applicable law, one simply has to e-file via the DLS Portal 14-days after service, nothing more.

(emphasis added);

(b)    the Deputy Registrar:

I draw your attention to r 4.01.6 of the High Court Rules 2004 (Cth).

The deadline for the foreshadowed notice of objection is as stated in my previous email. ;

(c)    Mr Wilson:

Thanks for your email.

No, there is no 4pm deadline in the DLS Portal e-filing world, such applied when physical registry counters used to close, not these days and in this modern e-world.

The Rules are clear and stipulate 14-days, nothing more. ;

(d)    the Deputy Registrar:

I will not further debate with you the operation of relevant provisions of the current version of the High Court Rules 2004 (Cth), Compilation No. 25, in relation to the steps that you have foreshadowed.

A certificate of taxation will be issued unless a notice of objection has been filed by no later than 4:00pm AEDT tomorrow and security for costs has been lodged by that time (absent any notice of dispute filed by the first and second defendants and the lodgement by them of security for costs of a taxation).

(emphasis added);

(e)    Mr Wilson:

Thank you for your email, however you are wrong as a matter of law and fact.

We take this opportunity to remind you of your, and the Court’s duties of even-handedness, fairness, objectivity and impartiality, as a quasi-judicial officer.

(emphasis added); and

(f)    Mr Wilson later wrote:

We write to bring the enclosed to the HCA’s attention, whereby all of the former orders against MWP, on which P&M sought to rely before A. Stewart J. were rescinded and set-aside, ab-initio and with effect from 17.06.22.

An inquiry into MWP’s costs, losses and damages has been ordered, since both the EWHC, and also the EWCA found very significant, material and long-standing breaches of the duties of utmost good faith, and of full and frank disclosure, astonishingly dating back to 12.02.10, so that no such orders should ever have been applied for, and there was no basis to grant the same, as we have proven.

Accordingly, we shall be applying to set-aside and vary the judgments below.

(italic emphasis in original)

112    On 14 December 2022, MWP filed a notice of objection to the Bill of Costs.

113    On 9 January 2023, Mr Wilson sent an email to the Associate to Justice Stewart (which was copied to, inter alia, Mr Cronan, Mr Porter and Mr Moretti but apparently not to Mills Oakley):

Please pass the enclosed to His Honour, proving once and for all the breaches of the duties of full and frank disclosure and of the utmost good faith that occurred from 04.13 by Mr Emmott an Australian solicitor, and the resulting FO rescission and discharge, inquiry and costs, all in favour of MWP.

His Honour was quite wrong to have purported to criticise MWP, when he knows almost nothing at all about the reality of this litigation as to the fraud and deceit we have suffered, and in overlooking the misconduct and breaches of the Local Reps and their lawyers in seeking to rely on orders based on material they had no right to have in their possession and which we have proven should never have existed.

As mentioned, we are issuing proceedings against Porter, Moretti, Cronan and Van De Velde, and will leave no stone-unturned to ensure we achieve justice.

(emphasis added)

114    On 10 January 2023, Mr Wilson sent a further email to the Associate to Justice Stewart (copied to the same persons on the previous email):

WRT our prior email, copy enclosed, please would you also be so kind as to pass the enclosed sealed Costs Rulings of 05.01.23, as sealed on 09.01.23, to His Honour Stewart J.

Brian Doctor KC who is very well-known to His Honour, as well as Hammerschlag J in the NSWSC, acted for MWP in the UK before Lord Justice Popplewell in the EWCA, and since 2016.

115    On 27 January 2023, in proceeding NSD767/2021, Judicial Registrar Segal made the following orders:

1.    The quantum of the lump sums for costs, payable pursuant to the costs orders made on 1 April 2022 and 26 August 2022, be determined on the papers.

2.    Pursuant to Order 9 made on 1 April 2022, the costs of the Respondents payable by the Applicant pursuant to Order 4 made on 1 April 2022 be fixed in the sum of $50,000.00.

3.    Pursuant to Order 6 made on 26 August 2022, the costs of the Respondents payable by the Applicant pursuant to Order 1 made on 26 August 2022 be fixed in the sum of $28,500.00.

116    On 28 January 2023, Mr Wilson wrote to the Assistant to Judicial Registrar Segal:

…

Please note that we shall be exercising our rights under Subsection 35A (5) of the Federal Court of Australia Act 1976 to apply to the Court for a review in accordance with Rule 3.11, and understand that the deadline expires on 21.02.23, since we are not deemed to have been served until Monday 30.01.23.

Please confirm.

Please also note that:

1)    by the landmark judgments, rulings and orders of HHJ Pelling KC in the EWHC of 17.06.22, 30.06.22, 26.08.22, 09.09.22, 03.01.23, 05.01.23 and 09.01.23, as well also as the Order of Lord Justice Popplewell in the EWCA of 29.11.22, all in favour of MWP, the former and improper freezing and all related orders against MWP were rescinded and discharged ab-intio (sic), an inquiry into MWP’s losses and damages ordered given the personal solicitors undertaking in damages issued in 2013, as well as costs, including indemnity costs and an interim payment on account of the same were awarded to MWP, with seminal findings made in MWP’s favour given the material breaches of the duties of full and frank disclosure, and of the utmost good faith dating back to 12.02.10, that we have proven, so that no such orders should ever have been applied for and obtained, and on and to which the Local Representatives wrongly and improperly sought to refer and rely; and

2)    as envisaged and reserved by Markovic J in her judgments, MWP will now issue proceedings against the Local Representatives, as well as against the Trustees of the Nicholls Estate, for their negligence and breaches of fiduciary and statutory duty.

(emphasis in original)

117    On 30 January 2023, MWP commenced proceeding 2023/00032656 in the Supreme Court of New South Wales (Supreme Court proceeding) against the respondents. As will be seen, the Supreme Court proceeding was later cross-vested to this Court and became the current proceeding.

118    On 30 January 2023, Mr Wilson sent an email to the Associate to Justice Stewart (which was copied to, inter alia, Mr Cronan, Mr Porter and Mr Moretti but apparently not to Mills Oakley):

Please would you be so kind as to pass the enclosed Statement of Claim, as now filed and served to HH, as per the judgments of Markovic J.

119    Mr Wilson sent an email in similar terms to the Associate to Justice Markovic (which was copied to, inter alia, Mr Cronan, Mr Porter and Mr Moretti but apparently not to Mills Oakley).

120    On 1 February 2023, the Assistant to Registrar Segal sent an email to Mr Wilson responding to his 28 January 2023 email stating that any application for review would need to be filed by 17 February 2023. On 17 February 2023, MWP notified this Court that it sought review of Registrar Segal’s costs determination.

121    On 22 February 2023, Mr Wilson sent a further email to the Deputy Registrar of the High Court of Australia (as written):

We enclose the attached, which may also be cited in and referred to during tomorrow’s review asssement (sic) hearing.

MWP is a prior-ranking certified funding and petitioning judgment creditor in and of the Estate, with certified priority costs, including of the Bankruptcy and its recognition in Australia, where the pari-passu principal and the ranking of creditors is fundamental.

Accordingly, MWP commenced proceedings in the NSWSC on 28.01.23, given the breaches of duty, law and professional, negligence which occurred throughout, as advised by Markovic J, and as a result of which MWP is owed large sums and has rights of set-off and cross-claims.

122    On 23 February 2023, the taxation of the Bill of Costs was listed. Mr Wilson did not appear at the taxation, it appears because of technical problems in connecting from Kazakhstan. Ms Chan of Blackstone Legal Costs attended the taxation on behalf of MWP. The taxation lasted approximately one hour and at the conclusion of the taxation, the Bill of Costs was taxed at $11,351.30.

123    On that day:

(1)    Mr Wilson sent an email to the Deputy Registrar (which was apparently not copied to Mills Oakley):

Given the awful communications difficulties experienced today, where we were unable to connect even by telephone, so as to try and help on the factual and file related issues and questions raised, where Ms Farmer was allowed to make submissions unopposed, but we were unable to contribute and answer due to the connection issues, MWP requests time to draft, prepare, file and serve with Messrs BLC & Counsel our written submissions on the same of 14-days, for you to consider before you finally decide, given the damage and prejudice suffered.

Mr Wilson appears for and represents MWP as an NSW Solicitor, with a current Practicing Certificate, and is the solicitor on the record and who acts as MWP’s legal representative.

With respect, it is not correct that the Bell Potter case applies to MWP and its costs, indeed, quite the contrary since MWP’s costs are recoverable in the normal way and it has successfully had assessed, taxed, certified and recovered its costs before all of the NSWSC, the HCA, the NSWCA, as well as the JCPC, the UKSC, the EWCA, the EWHC, the KDB, the SCCO etc, and pertinent to this matter such costs have been accepted and certified by the Trustees of both the Slater and Nicholls Estates.

(underline emphasis in original)

(2)    the Deputy Registrar responded (but included Ms Farmer as a recipient):

The taxation proceeded in accordance with your email received at 2:28pm (attached).

Prior to the receipt of your email of 3:34pm (also attached), the end of the bill had been reached and the taxation had concluded, save for the announcement of totals taxed off and of the total sum of costs and disbursements allowed. The decisions on all items in the bill were properly made at the taxation, and written submissions will not be considered (beyond the contents of the notice of objection and of the email received from your costs consultant on 22 February 2023).

I await your claim for the plaintiff’s costs and disbursements in relation to the taxation, in a concise form as I explained to Ms Chan this afternoon. You are welcome to include submissions and to cite any case authorities that you wish in support of any claim to be made for the recovery of costs based on your work. (I did not mention “Bell Potter”. I gave my preliminary view that you might be unable to claim costs for your work as a director and controller of a corporation that is a law firm, mentioning that I was aware of a case authority other than Bell Lawyers Pty Ltd v Pentelow & Anor [2019] HCA 29 which stood in your way. The authority was not a judgment of the High Court, and I did not name it.) ; and

(3)    Mr Wilson replied to all parties to the previous email:

1 point of significance arises.

As you know, MWP is an unpaid judgment creditor in and of the Nicholls, Slater, TIL, TSL, TTT Estates, as well as the funding creditor, with certified priority costs, accepted by the Trustee, including as a result of achieving recognition in Australia, the UK Bankruptcy, recognition in the UK, funding the Trustee and her former Local Reps, as well as funding repairs and additions to the House, recognition in the ACT etc.

The Local Reps have already helped themselves too, and have paid to themselves, all of the net proceeds of a Canberra House, which MWP first identified, secured, froze and had a registered caveat over, and was entitled to enforce against until the local reps got involved, and all of which proceeds they have taken in breach of the UN Model Law on Cross-Border Insolvency, in breach of the Insolvency Act and Rules and in breach of the rights of priority creditors, since bankruptcy is a collective remedy and all creditors rank equally, save only for those granted priority by contract, such as MWP or by the ranking set out in the law. When they took the monies for themselves they had no certified priority costs and no costs agreed with the Trustee and approved by creditors, including MWP, as the principal creditor, hence inter-alia the NSWSC proceedings for breach of statutory and fiduciary duty and negligence etc, as pleaded.

Only in very narrow and limited circumstances can the pari-passu principle be displaced, and this has to be by a specific application under IA s. 346(6) given that this is an English, not Australian Bankruptcy. The relevant principles for the exercise of the Court’s discretion under s. 346(6) were summarised by Mann J in Tagore Investments SA v Official Receiver [2008] EWHC 3495 (Ch) at [44]-[48]. It is not necessary to set them all out, but he refers to the jurisdiction being exercised with great caution, and only in an exceptional case; to the normal primacy of the pari passu rule, which should not be lightly displaced; and to the heavy burden on the applicant to establish that the events which have happened have generated sufficient unfairness to justify an exception in his favour.

These sums totalled ≥A$110, 660.14c, plus interest, as per the enclosed.

Accordingly, Messrs Porter & Moretti cannot claim and seek to also recover against MWP in this Court, all and any costs already paid from such monies, and they have to particularise and identify, with specificity what has been paid, which they have so far failed to do.

They cannot double-count, and double-dip as it appears they are trying to.

(italic emphasis in original; bold emphasis added)

124    On 27 February 2023, Mr Wilson sent a further email to the Deputy Registrar of the High Court of Australia (copied to, inter alia, Ms Farmer):

Thank you for your email enclosed, and we note the slightly varied directions contained therein, which we shall consider and discuss with BLC and our Senior Costs Counsel.

On another topic, hopefully you also safely received our email enclosed, as to the ≥A$110, 660.14c, plus interest already paid to Porter & Moretti from the net proceeds of the Estate of which MWP is the principal judgment creditor, petitioning creditor and funding creditor, and where since 03.16 MWP has owned all rights and claims of the Bankrupt, and stands in his shoes and acts qua the Bankrupt, and in breach of the pari-passu principle and our prior-ranking rights.

Unfortunately, before you Messrs Porter & Moretti did not disclose these facts and that much of their costs had already been paid by the Estate and not themselves.

(emphasis added)

125    On 3 March 2023:

(1)    the Deputy Registrar of the High Court of Australia sent an email to Mr Wilson and Ms Farmer:

The plaintiff may have until Friday 10 March 2023 to provide its submissions.

The first and second defendants’ submissions in response should then be emailed by Friday 17 March 2023.

(2)    Mr Wilson responded:

Thankyou Registrar, our emails crossed in the ether, we are most grateful, indeed, apologies.

By way of background, we enclose the Costs Ruling of Sir Richard Field J, as upheld by Lady Justice Gloster.

We also enclose the adjudication as to MWP’s costs and judgment debts in Australia, as conducted by Messrs SV Partners. This was based upon an Expert Report by BLC, in a form agreed with all of the Trustees of the Estates, Receivers, Independent Accountants and the various Liquidators, appointed and funded by MWP. The UK Trustee of the Slater Estate, for whom P&M used to work as the Local Reps also so agreed all of MWP’s costs.

Accordingly, as we will explain in our submissions, we believe that the issue is res-judicata and that SVP is subject to an issue estoppel, and that it would be an abuse of process and impermissible collateral attack for them to now try to disallow MWP’s costs.

(emphasis added)

126    On 8 March 2023, a garnishee order was issued to Westpac Banking Corporation and on or about 17 March 2023, Westpac transferred $40,027.77 to Mills Oakley in answer to the garnishee order.

127    On 19 March 2023, Mr Wilson sent a three page email to the Assistant to Registrar Segal (which apparently was not copied to Mills Oakley):

Thank you very much indeed for your email of Friday, 17.03.23, which was transmitted to us at 9:51am our time, 2:51pm your time.

Unfortunately, we are rather taken by surprise, confused and do not understand the contents of your email at all.

In paragraph 1, you say that there was “no estimate of costs on or about 27 January 2023”, however, this comment makes no sense to us at all, since, as you know and as the record shows and proves, it was indeed on 27.01.23 that you sent to us a 4-page email at 11:51am our time, which is 4:51pm your time, attaching an order of the same date.

The footnote on page 1 of that order of 27.01.23referred to MWP’s rights to apply for a review as per FCAA 1976 subsection 35A(5) and Rule 3.11.

On 28.01.23, MWP wrote to the Court informing the Court that time did not commence to run until 30.01.23, and further notified the Court of its exercise of its rights under subsection 35A(5) and Rule 3.11.

On 01.02.23, MWP wrote to the Court further providing it with a copy of the statement of claim of 29.01.23 as filed and served in NSWSC 2023/00032656, and as sealed by the Court, which fully particularises MWP’s claims against Messrs Porter and Moretti of direct relevance to costs and also which comprise valid cross-claims against any entitlement.

As you know, on 17.02.23, MWP wrote and tried to E-lodge its letter of that date formally exercising its rights to a review, but, unfortunately, the Commonwealth portals and FCA portal would not allow the E-lodgement and E-filing of the same, because the matter was showing as closed on the system.

MWP wrote to the Court so advising.

Furthermore, on 21.02.23, MWP further wrote to the Court attaching an additional copy of its letter and asking for the Court’s and the Registry’s assistance in E-lodging the same.

No reply was received, so MWP wrote further to the Court later on 21.02.23.

Eventually, but only on 28.02.23, did MWP receive a response providing details of how to get the same internally lodged, MWP followed these instructions later that day.

No reply was received, so that MWP had to send a further chasing email on 01.03.23, after which it finally received a reply with E-lodgement transaction reference No.2515656, though the stamped and sealed letter was not received until 02.03.23, to which MWP immediately replied.

In addition, MWP also emailed to the Court and E-lodged a Form 128 on 09.03.23, requesting bank details to pay the A$2,000, because the rather antiquated form referred only to payment by cheque, whereas MWP is located overseas.

Bank details were not received until Friday, 10.03.23.

Due to the intervening weekend and having to move funds from overseas to Australia, MWP sent theA$2,000 by BSB from an Australian bank on 15.03.23 in cleared funds and after a chaser was sent the Finance Coordinator of the FCA acknowledged receipt and provided receipt No.L01219.

Unfortunately and through no fault of MWP, the stamped and sealed Form 128 of 17.02.23 was not received until 16.03.23, whereupon MWP acknowledged safe receipt and confirmed further that it had instructed both Messrs Blackstone Legal Costs and also costs counsel to assist in the review, of which review right exercise MWP had actually given as early as 30.01.23 as above.

MWP clearly notified the Court and exercised its review rights in good time, and it is not correct, as presently stated in paragraph 2 of your email that MWP did not object within the 21-day period, on the contrary it very clearly did by MWP’s emails of 30.01.23 and subsequently as set out above, its formal letter as E-lodged, filed and sealed dated 17.02.23, the Form 128 of 17.02.23, as E-lodged, but which was only belatedly sealed and stamped by the Court through no fault of MWP, as well as through payment of A$2,000 into the so-called suitor’s fund again, where the delays were caused by banking details not being readily available, and through no fault of MWP.

In relation to paragraph 3 of your email, with respect, what is stated is incorrect, regrettably and most unfortunately the standard form 128 is antiquated in that it refers to and envisages only a physical check, which obviously is not possible in this modern world and not efficient or cost-effective, where MWP is located overseas. MWP checked this particular point with the finance department who advised that, most regrettably and unfortunately, the standard wording on the Form 128 has not been corrected, updated and amended since 11.08.11, now more than 13 years ago.

Unlike when filing other forms on the FCA website, or indeed that of the NSWSC, the FCC or the HCA, the system does not allow the fee to be paid online, which necessitated a further round of correspondence, in respect of which the finance department has advised that the relevant bank account details are not available on the Commonwealth or FCA portals, because:

“The Litigant’s Fund account is a special account and payment into this account cannot be made electronically through the Court portals. In addition, the account information does not appear on the website to prevent others to accidentally pay their filing fees or court fees into this special account.”

In any event, as set out above, payment into the “suitor’s fund” was promptly made, and none of the delays can possibly be attributed to MWP, and a formal receipt was obtained on 15.03.23.

Thus, and with respect paragraph 3 of your email is also misconceived and wrong, because given that the Form 128 has to be E-lodged via the Commonwealth or FCA portals and cannot be lodged physically under the rules, and because the standard form requires a physical cheque, of course, it is not possible to ever pay the A$2,000 into the suitor’s fund (not as security) at the same time as E-lodging and E-filing the Form 128, indeed, the system and portal does not allow payment by BSB or by credit or debit card. Thus, it is never possible to pay the A$2,000 at the time of E-filing and E-lodging the Form 128, and further, as noted and explained above, when MWP emailed, E-filed and E-lodged its Notice of Review on 30.01.23, its letter seeking review on 17.02.23 and the Form 128, at no point in time did anyone in the Court request or require the payment of a fee. MWP had to hunt that down itself and obtain details of the special account, into which payment cannot be made electronically through the Court portals and as to which account information does not appear on the FCA’s website to “prevent others” to accidentally pay their filing fees or court fees into this special account.

Accordingly and with respect, paragraph 3 of your email is also wrong, because it is never possible to “lodge” A$2,000 of security with any notice, in this case, MWP’s notices by email on 30.01.23, its letter of 17.02.23 and its Form 128.

Further and in addition, MWP’s objections to the costs of Messrs Porter and Moretti are very clearly set out and plain for all to see, not only as a result of the statement of claim, as filed and served in the NSWSC on 29.01.23, a copy of which has been provided, but also in Mr Wilson’s affidavits of 24.08.22 in NSD 4287 of 2020, Mr Wilson’s affidavit of 30.09.22 in NSD 4287 of 2020, MWP’s emails of 11.11.22 and 15.11.22 and also MWP’s costs response, its email of 30.01.23, its letter of 17.02.23 and the Form 128, which also illustrates MWP’s serious intent to pursue its rights of review, as is also illustrated by the prompt payment into the special “suitor’s fund” of the required A$2,000.

In the circumstances and with respect, all of the points 1-3 in your email of 17.03.23 are factually and legally incorrect, as the record shows and proves, MWP’s letter and Form 128 have been accepted, stamped and sealed by the Court, and there is no basis for removing the same from the file in law, and the review must proceed MWP having validly exercised its rights and in good time, indeed, the record shows and proves that MWP has acted throughout in a professional, timely and diligent manner.

Therefore, we now look forward to receiving details of the timetable for and next steps in the review process, in relation to which MWP will have the assistance of Messrs Blackstone Legal Costs and also of costs specialist counsel based in Australia.

We are most grateful for your continued cooperation and kind assistance and look forward to hearing further from you.

(emphasis in original)

128    On 21 March 2023 the Supreme Court proceeding was returnable, for the first time, before Registrar Jones of that Court. Mr Wilson appeared for MWP and sought orders for the scheduling of an application for default judgment on the basis that the defendants to that proceeding, i.e. the present respondents, had not filed defences. Registrar Jones declined to make the orders sought by MWP, stating such orders would not be in accordance with s 56 of the Civil Procedure Act 2005 (NSW).

129    The defendants sought orders timetabling the filing and service of a foreshadowed notice of motion to cross-vest the matter to this Court, noting the various bankruptcy elements of MWP’s claim. The Registrar made orders to allow this to occur.

130    On 22 March 2023, the Assistant to Registrar Segal responded to Mr Wilson’s 19 March 2023 email:

In view of what you have written, I wish to confirm as follows:

1.    There was no estimate of costs issued on (or about) 27 January 2023. As there was no “estimate” issued, the notice of objection to the non-existent estimate is an abuse of process. It is for this reason the notice of objection was removed from the file. The Registry will be taking no further action in respect of the notice of objection (other than refunding any security that has been provided).

2.    What did issue on 27 January 2023 was a determination of lump sum costs. It was issued by a Registrar under a power delegated by the Court. Normally, such a determination is reviewable on application made to the Court within 21 days ie 17 February 2023. No such review application was lodged on or before 17 February 2023. It is for this reason that subsequent attempts by you to lodge a review application have not been successful.

3.    However, it has been made clear to you that a review application (Form 35) will be accepted for filing if it includes, among the orders sought, an order extending the time for the making of the review application. It will then be a matter for the Court whether to extend time to allow for the making of the review application.

131    On 23 March 2023, Mr Wilson responded:

Thank you for your email, however as you will recall and as the attached, explains, MWP notified the Court of its objections, at a very early stage, well ahead of any deadline, promptly and in a timely manner. It is and was most regrettable and unfortunate indeed, that the Portal was not accepting filings on this case, initially.

Without prejudice to the enclosed and the above, as requested we will proceed to further amend and re-file.

Finally, another issue has arisen as to these proceedings and related costs orders, namely as to the now discredited and false position taken by the Respondents, and false submissions made, including especially in their Application of 08.02.22, and related affidavit of KPF of the same date, as such has now been proven by MWP to be a fraud because it was based on the then alleged position of Mr Emmott, as MWP has now proven in light of the landmark judgments, orders and rulings issued by:

1)    HHJ Pelling KC of 17.06.22, 30.06.22, 27.08.22, 16.11.22, 03.01.23, 05.01.23, 09.01.23, 30.01.23, 13.02.23, 27.02.23 and 03.03.23 in the EWHC;

2)    Lord Justice Popplewell of 29.11.22 in the EWCA;

3)    I&CCJ Jones, I&CCJ Mullen, I&CCJ Burton of 17.01.23, 20.02.23, 13.03.23 and 15.03.23 in the I&CL of the B&PC;

4)    Miles J of 10.10.22 and Fancourt J of 20.01.23 in the Chancery Appeals Court;

5)    Mr Justice Soole of 14.11.22 in KDB Appeals;

6)    the Second Addendum of 12.02.10, by which all monies sought, recoverable and recovered by Mr Emmott from MWP always were and are payable to MWP itself qua Sinclair and cannot be used by Mr Emmott himself, including to pay to all and any lawyers;

7)    Vesting Letter of 01.05.20;

8)    Notice of Demand of 01.02.21;

9)    Deeds of Assignment and Addenda thereto of 30.11.18, 04.12.18, 08.11.20 and 03.03.21,

so that given the non-disclosure, lack of good faith, dishonesty, concealment, fraud and deceit of Mr Emmott and his impending bankruptcy (see the Table enclosed), the Application brought by the Respondents of 08.02.22, and the affidavit of the same date, and related submissions were also infected by Mr Emmott’s fraud and deceit and were replete with non-disclosure, false and misled the Court into error and could never have been properly brought, made and pursued.

The Respondents knew, or ought to have known that there was no proper basis on which they could ever have brought the application they did, and breached their duties in doing so, and are now tarred with the same brush as Mr Emmott, as despite their statutory and fiduciary duties, including to MWP as a funding and judgment creditor, they wrongly chose to seek to adopt and rely on his position, which has now been proven to have always been bogus and a fraud.

Therefore, and as a result all orders must be stayed, varied, rescinded and set-aside, and we will be so applying, in line with the right granted to MWP to an inquiry into its damages, costs and indemnity costs.

Please let us know should you have any questions, or require any further information.

(emphasis added)

132    On 27 March 2023, the defendants to the Supreme Court proceeding filed an application seeking an order that the Supreme Court proceeding be cross-vested to this Court (cross-vesting application).

133    On 6 April 2023, MWP lodged an application in proceeding NSD767/2021 for a review of the 27 January 2023 orders (6 April 2023 application) and an extension of time.

134    On 21 April 2023, the High Court of Australia issued a certificate of taxation which certified that the costs payable pursuant to the 17 August 2022 order of Justice Keane were $6,851.30.

135    On 26 April 2023, Mr Wilson sent an email to Registrar Jones of the Supreme Court of New South Wales (which was copied to Ms Farmer):

Many thanks for advising as to the new and revised agreed listing date of 17.08.23.

It is MWP’s position that none of Golledge SC, Bailly (sic) or MO can act for all or any of JC, TVdV, JLP and RM as to these breach of duty and professional negligence claims since, as the record shows and proves they all acted on and for the Nicholls and Slater Estates, and further are in possession of strictly private and confidential, as well as privileged information as to the Estates (see Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641, Thawley J).

This is especially so where, as in this case, MWP is also qua and acts and stands in the shoes of Nicholls and Slater, having purchased their rights of and from the Estate, as well as being the nominating, appointing and funding judgment creditor and also as the owner of 67% of the Temujin Partnership, and has been so since as long ago as 2015, to date, as the Defendants are fully aware.

(emphasis in original)

136    In response to a suggestion on this application that such a communication was inappropriate, Mr Wilson stated in his affidavit evidence that: “in my opinion there is no doubt that the Respondents have a conflict of interest given their fiduciary, contractual and statutory duties to MWP and that MWP nominated and caused their appointment and funded them”.

137    Registrar Jones responded to Mr Wilson’s email:

In the event that any application is sought to be made in relation to the issues raised in your email below, a Notice of Motion with a supporting Affidavit will need to be filed and served. Any such Notice of Motion will then be listed back before the Court for Directions and timetabling.

138    On 28 April 2023, Mr Wilson responded:

Many thanks for your email, indeed, we will be so proceeding.

Of course, the rights and interests of the Nicholls and Slater Estates, of which we are the funding, petitioning, nominating and appointing Judgment Creditor, are seperate (sic) and distinct, on the one hand, from those of Messrs Porter, Moretti, Cronan and Van De Velde, on the other hand and also of SV Partners Pty., Limited, a NSW Corporation.

Messrs Golledge SC, Harris and Mills Oakley cannot act for the Defendants in these proceedings, having acted for both of the Estates, including (without limitation) because of the privileged, strictly private, confidential and proprietary information they had and have belonging to the Estates.

139    In response to a suggestion on this application that such a communication was inappropriate, Mr Wilson’s position is the same as set out in [136] above.

140    I pause to note that no application of the kind foreshadowed has been filed.

141    On or about 10 July 2023, Mills Oakley procured the issue of a further garnishee order addressed to Westpac. Westpac transferred $217.53 to Mills Oakley in answer to this garnishee order.

142    On 14 August 2023, Mr Wilson sent an email to Mills Oakley:

As you know, we have applied to have your alleged costs review, taxed and certified, and have served you with the enclosed, as issued and sealed on 03.04.23.

Despite the above, of which you were always fully aware, it has come to our attention that you have applied for and sought, ex-parte without notice, a Garnishee order, accordingly, please now let us have, and by return email copies of all documents and correspondence, and explain why MWP was not put on notice of and served with the same, as required.

MWP’s rights are fully reserved, and in all respects, including as the nominating, appointing and funding judgment creditor in both the Nicholls and Slater Estates. As you know, through the landmark judgments and orders of HHJ Pelling KC in the EWHC, as approved by Lord Justice Popplewell in the EWCA that there should never have been a freezing and all related orders against MWP given the breaches of duty exposed and proven from 12.02.10, which also means that your SFC application was also bogus and false, wrongly co-operating as you did with Baird, Duggan and Emmott, and where you have also violated our rights as a prior-ranking certified, funding judgment creditor, for which your clients will pay a very, heavy price. Mark our words.

(italic emphasis in original; bold emphasis added)

143    On 17 August 2023, Acting Justice Schmidt heard the cross-vesting application.

144    On 19 August 2023, Mr Wilson wrote to Mills Oakley:

We await your most urgent reply and copies of all documents and correspondence you are obliged to provide us, forthwith, especially given your wholly improper conduct and actions, as usual, and for which you will pay a heavy price, mark our words. Acting adverse to and going against MWP, and colluding with Emmott was one of your gravest and unfortunate errors of judgment and law. Just as with your entirely bogus SFCA based on documents improperly sought and obtained from Emmott, Duggan and Baird with whom you have colluded against MWP but all of which have been rescinded ab-initio with indemnity costs and an inquiry into our damages ordered, for which damages you and your current clients are also liable.

It transpires the ex-parte without notice order dates back to prior to 070323 and you have wrongly sought to keep us in the dark since then, now more than 5.5 months, for no good and proper reason.

We are very financially strong and have a Balance Sheet second to none, and will ensure we prevail, you simply do not realise who you are dealing with and trying to wrongly cross, just as with the false submissions of Bailly (sic) this week, which we will expose and discredit.

(emphasis added)

145    On 31 August 2023, the Associate to Acting Justice Schmidt notified MWP and Mills Oakley that her Honour would deliver judgment on the cross-vesting application in the Supreme Court proceeding the following day.

146    Later that day, Mr Wilson wrote to the Associate to Acting Justice Schmidt (copying Mills Oakley):

Many thanks, we will discuss with counsel, and revert as to attendance.

Please would you ask Her Honour to note that at the Hearing on 17.08.23 Ms Bailly (sic) referred Her Honour to the Judgment of Stewart J, and a reference therein to a former interlocutory judgment of the EWCA and ad-lib comments by Jackson LJ on appeal from Acting Deputy Judge Cooke as to Mr Emmott’s then application to seek to remove the ordinary course of business exception, which should and could never have been made:

“… That is number 4, in paragraph 56, (Read). His Honour there refers to the comments of Lord Justice Jackson in an English case dealing with an application by MWP and the reference to the pathological litigations…”.

However, as Ms Bailly (sic) and Messrs Mills Oakley know and knew at the relevant time, by a series of landmark and seminal judgments, rulings and orders of HHJ Pelling KC in the EWHC from 17.06.22, as a result of a process commenced by MWP on 30.12.18, and as expressly upheld by Lord Justice Popplewell in the EWCA on 29.11.22 also in favour of MWP, not only have all of the former freezing and all related orders against MWP been rescinded and set-aside ab-initio, but it has been found and proven that the same could never have even been applied for, sought, obtained and maintained due to the very serious and material breaches of the duties of the utmost good faith and of full and frank disclosure by Mr Emmott, an NSW and English solicitor and officer of the Court, that MWP has exposed and proven to have occurred, dating back to 12.02.10 (in reality 04.04.07), so that the EWHC and EWCA have ordered an inquiry into MWP’s losses and damages, as well as costs and indemnity costs in favour of MWP against Mr Emmott, pursuant to the personal solicitors undertakings in damages he gave to both the EWHC and to MWP on 04.04.07.

This means, and MWP has proven, that not only could such orders never have been applied for, let alone sought, obtained and maintained, but also the application before ADJ Cooke which went on appeal to the EWCA could not ever have properly occurred and, therefore, such ad-lib comments by Jackson LJ have been rendered otiose.

Further, HH should note tha (sic) by a judgment of 20.11.20 HHJ Pelling KC at [2022] EWHC (Comm) it has also been found that it is Mr Emmott, and not MWP that can be described as the pathological litigant, as shown and proven by his litany of interlocutory costs driven applications all around the world proven to have been erroneous, misconceived and which have failed and been dismissed, including for an injunction against and stay of the Temujin Partnership proceedings before this Court, as mandated by the Tribunal dismissed by the EWCA on 31.01.18 in its judgment at [2018] EWCA Civ. 51 , the UKSC on 31.07.18, the NWCA (sic) in its judgment at [2022] NSWCA 315, and of 25.02.22 in its judgment at [2022] NSWCA 48, as well as the HCA in its judgment of 08.09.23 at [2022] HCASL 142, given Mr Emmott’s proven and established destruction, non-disclosure, failure to call and bring witnesses and refusal to allow joinder, as proven by MWP. More specifically, HHJ Pelling KC found as to Mr Emmott when dismissing with indemnity costs, following on from a prior judgment also in favour of MWP of Sir Robin Knowles J at [2019] EWHC 3519 (Comm), and related order of 23.10.19, a yet further and entirely spurious contempt application (the 4th) against MWP:

“This is yet another application by Mr Emmott that has been issued in these proceedings that is …pathological, and which has resulted in very significant cost to no useful purpose, and which must in my judgment be dismissed, as Knowles J plainly intended it should be dismissed…”

Please let us know should HH have any questions.

(bold and italic emphasis in original; underline emphasis added)

147    In his affidavit evidence on this application, Mr Wilson stated:

…MWP’s email of 31.08.23 was entirely justified, given that Ms Bailly (sic) had wrongly referred to judgments and orders of Acting Deputy Judge Cooke and of the Court of Appeal that had been rescinded and set aside on 17.06.22 by the EWHC, as upheld on 29.11.22 by the EWCA, as described above, with an inquiry into damages and indemnity costs in favour of MWP. MWP’s email was clearly written on bona fide grounds and the available material clearly provided a proper basis. Indeed, MWP was entirely vindicated, and Ms Bailly (sic) and Mills Oakley and their clients should never have done what they did before Acting Justice Schmidt. Indeed, Ms Farmer has repeated such egregious breaches in KPF-1 as addressed and dealt with above.

148    On 1 September 2023, Acting Justice Schmidt ordered that the Supreme Court proceeding be transferred to this Court. Her Honour published her reasons for doing so: Michael Wilson & Partners Ltd v Cronan [2023] NSWSC 1050; (2023) 380 FLR 324. That proceeding in this Court is the present proceeding.

149    On the same day, Mills Oakley sent a letter, signed by Ms Farmer, to Mr Wilson inviting MWP to provide security for the respondents’ costs.

150    On 4 September 2023, Mr Wilson responded, by email addressed to Ms Isabella Marriott of Mills Oakley (but not Ms Farmer):

WRT the enclosed, the contents of which we note are misconceived and wrong.

As you know, as the owner since 2015/2016 of 67% of the Temujin Partnership which was formed and has done business since early 0905, to date, and as found by the Tribunal, the EWCA, the UKSC, the NSWCA and the HCA, and as admitted and disclosed MWP has enormous assets in the jurisdiction, as vouched and verified by EY, totalling ≥US$68.82m and which includes real estate, corporations and trusts, as well as bank accounts and other assets in both the States of NSW and Victoria.

Please let us have copies of the 2 Garnishee Orders to which you refer, the applications and evidence in support of and seeking the same and all documents and correspondence, to which we are entitled, and by return email. Your conduct in this regard is and has been wholly improper and in breach of the law and our rights.

We await your prompt reply, and shall be responding further to your letter and applying to correct the obvious errors in and on the face of the first instance judgment and appealing, as well as updating and expanding our case given your clients further breaches as unearthed and proven, including their and your improper obtaining of orders you were not entitled to from Baird, Duggan and Emmott and collusion with the same, for no good and proper reasons, as the record shows and proves.

(emphasis added)

151    On 14 September 2023, the 6 April 2023 application was returnable before Justice Colvin. Mr Wilson appeared for MWP and was requested by Justice Colvin, and agreed, to file a notice of acting. Mr Wilson indicated that MWP also intended to file an application to set aside the costs orders underlying the 27 January 2023 costs orders. He also sought orders requiring Mr Porter and Mr Moretti to provide MWP with documents associated with the garnishee orders. Such orders were not made. His Honour ordered that any application to set aside or vary the costs orders the subject of the application for an extension of time be filed and served on or before 12 October 2023 and the case management hearing be otherwise adjourned to 1 November 2023.

152    On 13 October 2023, MWP filed an interlocutory application in proceeding NSD767/2021 (13 October 2023 application). In that application MWP sought the following orders:

1.    MWP applies to rescind, set aside and vary the costs order of Stewart J, dated 26.08.22;

2.    Costs; and

3.    Liberty to apply.

153    On 25 October 2023, I conducted the first case management hearing in the present proceeding. Mr Wilson appeared for MWP and sought leave to file and serve an amended statement of claim. I granted leave to MWP to file any amended statement of claim by 20 November 2023.

154    On 1 November 2023, Justice Colvin conducted a further case management hearing in proceeding NSD767/2021.

155    At that case management hearing, his Honour noted that Mr Wilson had not filed a notice of acting, and Mr Wilson indicated that he would attend to do so that day. The Court’s file records that a notice of acting dated 17 September 2023 was filed on 15 May 2024 and subsequent to Ms Farmer’s 23 February 2024 affidavit in the present proceeding which she stated that as at the time of making that affidavit, no such notice had been filed.

156    On 20 November 2023, Mills Oakley wrote to Mr Wilson:

(1)    reiterating the previous invitation to MWP to provide security for the respondents’ costs; and

(2)    seeking payment of an amount of $74,984.05 due to Mr Porter and Mr Moretti, calculated as follows:

157    On 27 November 2023, MWP served an amended statement of claim in the present proceeding.

158    On 1 December 2023, Mr Wilson sent an email to Mills Oakley, which was copied to, inter alia, Mr Moretti and Mr Porter:

As to the attached, unfortunately you have ignored the same, accordingly please now confirm safe receipt of the enclosed.

As to the Contemnor/Judgment Debtor/imminent Bankrupt, with whom you, and your clients, have wrongly colluded in material breach of contract and duty, the implied Harman undertaking, the CPR and the CCG, including by tortiously interfering with our rights, as the record shows and proves, including leading up to and before Angus Stewart J from RSA, his:

1.    committal to prison for the ongoing, serial and material contempts (sic) of court committed is listed for 24 and 26-290224; and

2.    Bankruptcy and the Sequestration of his Worldwide Assets and Estate (as with all of Sinclair, Nicholls and Slater), is listed for 14-150524.

As you know, we seek damages and costs as to you (sic) collusion, breaches and tortious interference.

(italic emphasis in original; bold emphasis added)

159    On 18 December 2023, MWP filed a second amended statement of claim in the present proceeding. The allegations contained therein are broadly summarised at [4] to [11] above.

160    On 28 February 2024, Justice Colvin heard and determined the 6 April 2023 application. Mr Neggo of counsel appeared for MWP and Ms Bailey for Mr Porter and Mr Moretti. His Honour dismissed that application with costs and subsequently published his reasons for doing so as Michael Wilson & Partners Ltd v Porter (No 4) [2024] FCA 163. Those reasons included:

21    As to (1) to (3), in the circumstances I have outlined, I do not accept that Mr Wilson's conduct is properly characterised by those submissions. There was a considerable delay in filing a proper application and that delay is attributable to Mr Wilson. The time for filing the application expired on 17 January 2023. Nothing was done in time. The application was not filed until 3 April 2023.

…

33    As to (5), there is prejudice to the respondents. It takes the form of delay in proceedings the course of which have already been substantially delayed by the conduct of MWP. In that regard, I observe that the orders bringing the administration by Mr Porter and Mr Moretti to an end were made in 2021. Since then, they have been the subject of unsuccessful applications for leave to appeal and then to revisit the orders refusing leave to appeal. Indemnity costs have been ordered against MWP because of its conduct in the proceedings. The interests of finality stand against the application.

161    On 1 March 2024, I made the following orders concerning the application under present consideration:

4.    [MWP] file and serve any material on which it intends to rely in response to the Interlocutory Application by 29 April 2024.

5.    The [respondents] file and serve any evidence in reply by 13 May 2024.

6.    The respondents file and serve written submissions of no more than 10 pages on the Interlocutory Application by 13 May 2024.

7.    [MWP] file and serve any submissions in response of no more than 10 pages on the Interlocutory Application by 27 May 2024.

8.    The Interlocutory Application be listed for directions, with a view to allocating a hearing date if appropriate, at 9:30am on 5 June 2024.

(emphasis in original)

162    On 13 May 2024, MWP filed an affidavit of Mr Wilson of that date in this proceeding. That affidavit, which was read on this application, is replete with submissions and assertions (many of which are scandalous) and short on admissible evidence. It and its accompanying exhibit also contain much irrelevant material. Mr Wilson’s affidavit includes:

7.     This affidavit is made in:

…

7.4    in reply to the unnumbered affidavit of Ms K.P. Farmer (who is currently with Messrs Mills Oakley, but formerly was with DWF, who has moved firms many times and has a checkered and dubious history and experience, and practices (sic) at the lower end of the profession), of 23.02.24, that was filed in these proceedings in support of the IA, comprising ≥fifty three (53) pages of closely-typed text (“KPF-1”), an exhibit of ≥ three thousand one hundred and fifty four (3154) pages, including also a biased, selective and one-sided Golledge-style purported Aide Memoire also of ≥sixteen (16) pages, as well as many and numerous other citations and cross-references throughout, in addition and on top of the ≥3,224 pages, and all of which was only served on MWP on 28.02.24;

…

43.    MWP has issued a notice to produce to the Respondents in relation to all documents and correspondence passing between them on the one hand, the bankrupts and their representatives on the other hand, and also passing between them, the trustees of the Slater estate and also Messrs Emmott, Baird, Duggan and Duggan Legal, which will be called upon at the hearing on 05.06.24 (pages 410-411).

44.    This includes because, as mentioned above, it is clear that the Respondents and their lawyers have been wrongly colluding and cooperating with Messrs Emmott, Baird, Duggan and Duggan Legal against MWP, including with respect to the security for costs application before Stewart J based as it was on improperly sought and maintained orders, hence why MWP has been awarded costs, including indemnity costs, with interim payments of >£200,000, and an inquiry into its damages pursuant to the personal undertaking given on 03.03.07, and as to latter of which a directions hearing was listed on 26.04.24 for 07.06.24 before HHJ Pelling KC in the Commercial Court of the EWHC, upon MWP’s application.

…

46.     If one looks carefully at KPF-1, one can see that Ms Farmer wrongly purports to have sworn the same before her employed solicitor, Ms Marriott, who is also an employee of Mills Oakley, and which is wrong and improper. It is trite law and practice that affidavits must be sworn before an independent solicitor, not one who is instructed and involved and working for the same law firm, and/or a notary or consular officer. Accordingly, KPF-1 has not been validly signed and sworn.

47.    With reference to paragraphs 1 on page 1 and 3 and 5 on page 2, until relatively recently, Ms Farmer was with DWF and not Mills Oakley, having been admitted as a solicitor on 19.05.89. She only first appeared for the Respondents working at and for Mills Oakley on 07.10.21. Ms Farmer’s resume is at pages 412-413, as will be seen she is from Adelaide, not Sydney, worked for the Commonwealth Director of Public Prosecutions, her own firm from 12.03 to 02.09, Messrs Shaw Reynolds from 02.09 to 02.12, Messrs Tresscocks Lawyers from 01.12 to 04.18, Messrs DWF from 05.18 to 12.19, and now Messrs MO from 12.19 to date. Accordingly, it is clear that Ms Farmer moves around a lot and struggles to stay in one place, with six jobs in her career disclosed so far, and that MWP has unearthed.

…

51.    As to paragraphs 10 and 11 on pages 3 and 4, as set out on page 1 on this affidavit and in paragraphs 1-3, I set out details of my experience and also as to MWP’s various locations. Ms Farmer has no knowledge as to my “principal place of practice”, my residence and location. I have rarely spoken to Ms Farmer and believe the last time I did so was in Sydney, Australia, after she had acted in breach of MWP’s rights and improperly cancelled and released MWP’s ongoing worldwide freezing order, which had to be reversed at the Respondents’ cost due to her negligence, crass errors, lack of understanding and gross incompetence, when all that was ever necessary, which MWP itself succeeded in doing before Stevenson J on 17.03.17 (pages 424-425) was to vary the WWFO so as to allow Ms Palmer as the Trustee, and not Messrs Moretti and Porter as the mere local representatives, to go on title to the Canberra property at the ALTO.

…

53.    With reference to paragraphs 13 and 14 on pages 4-7, at paragraph 20 above I have attached an accurate and up-to-date list of the now >489 judgments and orders in favour of MWP, so that Ms Farmer’s list in paragraphs 13 and 14 is hopelessly inadequate and incomplete.

…

103.    With reference to paragraphs 69 and 70 on page 18, as mentioned and described above, the security for costs and costs application were predicated on MWP allegedly not having assets in or doing business in the jurisdiction, all of which was always false, and also the former freezing and all related orders against MWP, which have been rescinded and set aside with effect from 17.06.22, with an inquiry into MWP’s damages ordered from 03.03.07 to date under the personal undertakings in damages given, and which inquiry is underway with the directions hearing being held on 07.06.24.

104.    Therefore, the comment in paragraph 70 of Stewart J is inaccurate, because not only was the security for costs application itself never decided or dealt with on its merits and never decided against MWP, but also it was entirely bogus and false, and should never have been brought and made. Messrs Porter and Moretti and Ms Farmer have wrongly colluded and cooperated with Mr Emmott against MWP and are also implicated in MWP’s claim for damages.

…

133.    In Part D comprising paragraphs 106 through 145, Ms Farmer wrongly seeks to defame, disparage and abuse both MWP and myself, with no good and proper reason, and further seeks to paint a deliberately improper, false and misleading picture, not only of the true position in Australia, but also at paragraphs 133 to 145 in the UK, when nothing could be further from the truth.

…

136.    Generally speaking, in paragraphs 106 to 112 on pages 23-26, Ms Farmer seems not to understand that in the proceedings before this Court there has been no trial and, accordingly, no substantive hearings and proper findings made.

137.    Of course, Messrs Golledge, Bailey and Famer (sic) have sought to cherry-pick what they regard as being in their favour in order to defame, disparage and abuse myself and MWP, which is wholly improper and unbefitting, especially given that MWP is the judgment and funding creditor and owns 67% of the Temujin Partnership and the rights of Messrs Nicholls, Slater, TIL, TSL and the Temujin Trust. Ms Farmer has not sought to even begin to present a fair and balanced approach.

…

140.    Despite this, Ms Farmer wrongly fails to accept and acknowledge the roles and involvement of all of Messrs D.M. Bennett AO KC, A. Tokley AC, P.S. Braham SC, R. Thomas and D. Neggo, but instead falsely paints a picture of little counsel involvement.

…

142.    In addition, although I migrated to Australia and lived and worked there with Freehills and later Baker McKenzie, I am not as current and up-to-date in Australia, as I am in England, especially relating to the Australian law and evidence and the style, nature and content of affidavits, witness statements and inter-partes correspondence.

…

197.    With reference to paragraph 146 on page 38, contrary to what Ms Farmer states, in my experience as a solicitor practicing all around the world and at the highest level, with respect, I have never before experienced a solicitor as incompetent as Ms Farmer, and who has caused such enormous waste of costs, losses and damages and taken so many inappropriate steps when merely acting as local counsel for mere local representatives of an English trustee. I have referred to many examples above and the same are also now fully pleaded and particularised in MWP’s Amended Points of Claim.

…

254.    Clearly, Ms Farmer is racking up costs with gay abandon and is over-staffing the files.

…

259.    The interlocutory applications made should never have been brought and are merely an attempt to bury the mistakes of the Respondents, for which they are liable.

(italic emphasis in original; bold emphasis added)

163    On 27 May 2024, Mr Wilson sent an email to Mills Oakley:

Many thanks for your email enclosed, and we note the as yet unquantified proposed delay - please let us have your proposed draft SMO’s in a Word format for our consideration.

Whether or not the hearing can be preserved will depend on what you file and serve in response - if it is similar in nature and content to the unnumbered affidavit of Ms K.P. Farmer of 23.02.24, in all likelihood we will have to further reply, as such purported to paint wholly inaccurate picture, being replete with numerous material injurious falsehoods.

In that regard, of course MWP’s position continues to improve, as proven by the enclosed updated List of the now ≥493 judgments, declarations, rulings, orders, default and final costs certificates in our favour, entitling MWP to ≥US$150m of damages, costs and ownership and control of assets, supported by ongoing WWFO’s, TPDO’s, caveat’s and restrictions, including of and over numerous large assets, real estate, corporations and trusts in Australia. Our damages directions hearing is listed for 08-100724, as per the personal undertakings given, and which remain in full force and effect.

(emphasis added)

164    On 3 June 2024, the respondents filed: (1) a second affidavit of Ms Farmer, in which she responded to Mr Wilson’s 13 May 2024 affidavit; and (2) their submissions in support of the present application.

165    On 4 June 2024, Mr Wilson sent the following emails to Mills Oakley:

(1)    

We refer to the enclosed, as we noted on 31.05.24, you are in material and very serious ongoing breach of the Orders and Timetable being more than one week late and, accordingly, must formally apply to the FCA for relief. Meanwhile, please let us have a cross-referenced, paginated index to the Exhibit, as well as the Exhibit itself in a “smart” format, hyper-linked, bookmarked and OCReadable.

Messrs Harneys Fiduciary have always been and remain MWP’s registered agent in the BVI. Of course, MWP’s sole shareholder, WFA is and has always been a Liechstenstein Anstalt, and is not a BVI company, and the BVI has nothing whatsoever to do with the same.

We shall be drafting, filing and serving further evidence in answer, but now require you and Ms Bailly (sic)/Golledge, as officers of the Court, duty bound not to seek to mislead the Court, and into error to forthwith apologise for, withdraw, correct and promptly amend and update your evidence (including the purported Aide-Memoire), since such is materially incomplete, inaccurate and purports to mislead the Court by apparently deliberately seeking to paint and present a false and misleading picture of the Emmott and Temujin Partnership Frauds litigation in which MWP is involved, and as to which MWP is the clear overall winner entitled to assets, damages and costs of ≥US$150,000,000 and as owner of 65% of the Temujin Partnership from 2015/16 to date, and which includes copious real estate, corporations and trusts in Australia (NSW and Victoria), as you know the EWHC and EWCA have granted MWP the right to damages from 030307, to date, and as to the quantum of which the first hearing has already been listed for 070624. You and your clients have colluded with Emmott (Duggan and Baird) as to and are implicated in the same, and have caused and contributed to such ongoing loss and damage by your misconduct before Stewart J, and which misconduct continues.

Accordingly, MWP’s rights are fully reserved, and in all respects.

(italic emphasis in original; bold emphasis added); and

(2)    

WRT the enclosed, please let us have the documents, retractions and the like we have requested, asap, given your evidence and submissions are incomplete, as well as being inaccurate, cynically and deliberately false and misleading, despite the obligations of your clients, and your and Bailly (sic)/Golledge’s duties as officers of the Court.

Internal distribution is entirely a matter and issue for you. We will not assist you in your quest to maximise costs.

(emphasis added)

166    On 9 June 2024, Mr Wilson sent an email to Mills Oakley:

We refer to the enclosed and paragraphs 122 onwards and pages 2590-2666 of KPF-1

The purported “Aide Memoire” is not only incomplete and materially out of date, but is wrong in law and fact and is false and misleading in a number of material respects -it has clearly been drafted and prepared by you, Golledge and Bailly (sic) in continued improper and wrongful collusion and co-operation with all of Emmott, Duggan and Baird as has been occurring since at least 2021, to date - hence the need for compliance with the Notices to Produce, which remain binding on you, and have not been stayed or set-aside.

For example, many of the judgments and orders cited and referred to have been overtaken by subsequent judicial acts and are no longer in force and effect, thus MWP won the MXP shares and cash appeal up to the EWCA and the UKSC, entirely set-aside the former WWFO and all related orders proving non-disclosure and breaches of the duty of utmost good faith from 030307 hence the award of damages, defeated the former NSW Injunction up to the EWCA and UKSC, obtained PTA from one of the Pelling Judgments cited and a stay as to the POBofC. DCC, won as to the Sinclair Debts Claims amendments, defeated Mr Emmott’s claims as to the Costs Fraud and the proceedings against him, Sinclair and Sokol continue, proven that Emmott, a litigator since 1970 is the pathological litigant, not MWP, appealed from DI&CCJ Kyriakides, succeeded in issuing 21 Statutory Demands and 3 Petitions to bankrupt Emmott, none of which have been stayed or set-aside, given his defaults and acts of bankruptcy, succeeded in getting PTA from Pelling in the last item referred to.

As you will see from the enclosed, MWP has won the vast and overwhelming majority of its UK appeals.

Accordingly, you must now retract, withdraw and apologise for your purported Aide-Memoire as you have no relevant knowledge and cannot continue to so deliberately mislead the Court into error and to falsely and wrongly abuse and defame MWP, as to which our rights are fully reserved, and in all respects, including as against Ms Farmer, personally.

(italic emphasis in original; bold emphasis added)

167    On 12 June 2024, MWP filed a second affidavit of Mr Wilson, sworn on 11 June 2024. That affidavit responds to Ms Farmer’s affidavit of 30 May 2024. It includes:

9.    There is also a significant problem with the form and structure not only of KPF-2, but also KPF-1, this is because on the one hand it purports to be an affidavit, however on the other hand it is not signed and sworn under oath, instead although being structured and in the form of an affidavit it then purports to be “affirmed”, which is improper and impermissible. If Ms Farmer wanted to affirm the document, then KPF-2 (and also KPF-1) had to be structured and in the form of an affirmation, which is a different kind and form of legal instrument, and not in the form and structured as an affidavit. This is an additional problem with KPF-2 (and also KPF-1), which therefore needs to be entirely re-structured, re-drafted, re-signed, filed and served, presumably as an affirmation and not as an affidavit. Being the quality of lawyer that she is, Ms Farmer seems not to understand the material and obvious difference between an affidavit on the one hand, and an affirmation on the other hand, though most lawyers learn this simple fact and legal principle at law school and during their traineeships before qualification, hence further proving the point made in MEW-1 as to the quality of Ms Farmer and her work, which has so bedevilled the Slater estate, throughout her involvement, as particularised in MEW-1 and the ASOC.

…

13.    … Ms Farmer once again illustrates the very low level at which she works …

…

33.    ... As can be seen from the quality of MWP’s pleadings, settled by counsel, MWP has presented an overwhelming and very formidable case, which is no doubt what so terrifies Ms Farmer and her clients so that , instead of filing a defence, they have chosen to embark on an ill-advised course of abusing myself and MWP, for no good and proper reason, and in a manner contrary to Ms Farmer’s and Messrs Golledge and Bailly’s (sic) duties as a solicitor, and as barristers and officers of the Court, respectively, including under the Legal Profession Uniform Law Solicitors’ Conduct Rules 2015, as amended.

…

37.    As to paragraph 21 on page 7, as I have explained in MEW-1, there was no question of my being “reinstated” on the NSWLS Register, and further my practicing certificate is in evidence, accordingly it is true that Ms Famer (sic) and Mills Oakley should have abandoned, withdrawn and apologised for their false assertions to the contrary. This is all part of Ms Farmer’s transparent effort to divert the Court’s attention away from the improper conduct of the Respondents and herself, as fully itemised and pleaded, and to which they simply have no answer. Ms Farmer simply cannot accept that yet again she has acted in error, accept her own error, and apologise for the same, given what MWP has now proven and established. Instead of doing so, as is her want, Ms Farmer instead tries to simply double-down and continue with a bad point.

…

39.    As noted and explained in MEW-1, just as with the contents of KPF-1, it is clear from KPF-2 generally and in particular paragraphs 22.a through 22.d that the collusion by the Respondents, Ms Farmer, Mr Golledge and Ms Bailly (sic) with Messrs Baird, Duggan and Emmott continues unabated, as it has since the improper and false security for costs application, and must be restrained.

…

46.    Ms Farmer has no proper basis to seek to second-guess litigation, in which she and her clients are not involved and of which they have no proper knowledge and understanding, including no lawful access to any files and documents, that she nevertheless seeks to do so speaks volumes, and one can clearly see the ongoing collusion and cooperation with Messrs Baird, Duggan and Emmott, which will be exposed when the notices to produce are complied with.

(italic emphasis in original; bold emphasis added)

168    On 18 June 2024, during a case management hearing I made the following orders:

1.    The time for the [respondents] to file and serve their evidence in reply and written submissions on the Interlocutory Application be extended to 3 June 2024.

2.    The time for [MWP] to file and serve any further evidence and submissions in response of no more than 10 pages on the Interlocutory Application be extended to 5 July 2024.

3.    The respondents have leave to file and serve its (sic) Amended Interlocutory Application dated 30 May 2024.

4.    The respondents file a joint Court Book by 11 July 2024.

5.    The Amended Interlocutory Application be listed for hearing on 18 July 2024.

6.    The parties have liberty to apply on 3 days’ notice, including with respect to any notice to produce.

(emphasis in original)

169    I terminated that case management hearing without hearing argument concerning a notice to produce served by MWP because of Mr Wilson’s conduct during that hearing and in particular his refusal to stop talking over the top of me. MWP subsequently sought to re-list the proceeding and it was re-listed on 27 June 2024.

170    On 20 June 2024, Mr Wilson sent the following emails to Mills Oakley:

(1)    

Thankyou for your email.

We most certainly did, and expressly, call on and require compliance with the Notice to Produce as soon as we appeared, which NTP was issued, sealed and served on you on 130524, as such was listed before the FCA on 180624, by the enclosed Order of Registrar Lee of 210524, by consent.

As you know, the EWHC, as upheld by the EWCA have granted and awarded MWP the right to an inquiry into its losses and damages from 030307 to date, given we have exposed and proved outrageous breaches of the duties of the utmost good faith and of full and frank disclosure by an NSW, HCA and English solicitor, pursuant to the personal undertakings in damages given to the Court and to MWP.

You have caused and contributed to such losses and damages, and which are ongoing, as a result of your collusion and wrongful cooperation with Emmott, Duggan and Baird since before Angus Stewart, and also in these proceedings, even now you refuse to withdraw, retract and apologise for the inaccurate evidence and false submissions you have made before this Court, given the judicial acts in our favour, and as a result of which the world has changed and moved on entirely in our favour. KPF-1, KPF-2 and the evidence before Stewart has been proven to be false, the same applies to Ms Bailly’s (sic) current submissions.

As the law makes clear, all Courts must now have regard for and look at matters as they actually were and should have been as we have established and proven to the satisfaction of the EWHC, as upheld by the EWCA, there should and could never have properly been even such an application for, let only the WWFO, TPDO’s and all related orders commencing on 030307, and the same applies to the SFC and related costs orders you sought based on Mr Emmott’s false and improper former position.

The longer you refuse to withdraw, apologise for and correct your evidence and submissions, the greater the ongoing loss and damage is, and for which you are liable, and will be brought to account, as solicitors, counsel and officers of the Court, you are duty bound to correct the record.

(emphasis added); and

(2)    

We await your reply to all of the enclosed.

As you know, in light of the judicial acts in our favour and the law consequent upon the same and our having exposed and proven multiple breaches of the duties of the utmost good faith and of full and frank disclosure commencing on 030307 by an NSW, HCA and English solicitor and officer of the Court with whom you have colluded (for example by recycling Duggan’s ACT affidavit and exhibits), and the damages and indemnity costs awarded in our favour, please now:

1)    reply to the enclosed;

2)    confirm you will withdraw the current KPF-1 and II and the Bailly (sic) submissions, apologise for and then correct, update and re-file and serve the same, as such are in breach of the law, our rights and are causing ongoing losses, damages and costs, for which your clients and yourselves are liable, and in accordance with your duties as solicitors and officers of the Court.

This also applies to all of your evidence and submissions in NSD 428 of 2020, NSD 767 of 2021 and NSWSC 2023/32656.

MWP fully reserves its rights, and our losses and damages at your hands, and for which you are liable are continuing until you comply.

(emphasis added)

171    On 20 June 2024:

(1)    Ms Bailey responded:

It is inappropriate for you to include counsel in your emails.

Please liaise with Mills Oakley, being the solicitors on the record, and remove me from further email correspondence.

I will not be responding further to any emails. ; and

(2)    Mr Wilson then wrote back:

Ms Bailly (sic) we have been awarded massive damages having exposed and proven breaches of duty commencing on 030307, so your submissions before all of the CL Division and the FCA were false and need withdrawing and correcting, see the law cited in Gee on Injunctions, you cannot continue to mislead the FCA and NSWSC and must correct the record, as counsel and as an officer of the Court, given the overriding objective and purpose.

The world has entirely moved on and all in MWP’s favour, as we knew would occur and which has transpired. You cannot continue to mislead the Court, as you are doing.

(emphasis added)

172    On 22 June 2024, Mr Wilson sent an email to Mills Oakley:

We are available for a remote hearing at 3pm, Sydney time on Thursday, 270624 being 10am, here, and will provide you with our suggested draft SMO’s, for your review, noting we have to provide the same to HH pm on 250624.

Meanwhile, we now enclose a list of the now ≥506 judgments and orders in MWP’s favour, yet further proving your clients, MO, KPF and Ms Bailly (sic) continue to seek to mislead the Court as to the Emmott and Temujin Partnership Fraud Litigation by painting a deliberately false, misleading and incomplete picture.

Of course, in truth and reality you have no proper/actual knowledge and real understanding, and continue to improperly collude with Emmott, Baird and Duggan, as you have since 2021, to date, failing also to act properly and in the best interests of the Estates, and all creditors, including MWP as a funding and judgment creditor to whom your clients had and have fiduciary, statutory and contractual duties, such as in relation to all of our certified, agreed and adjudicated upon priority costs in the UK and Australia, all of which always ranked ahead of those of yourselves sought before Markovic so you breached the law and our rights, with intent to improperly take all of the net proceeds of sale for yourselves, without any foundation.

(emphasis added)

173    On 23 June 2024, Mr Wilson sent an email to Mills Oakley:

As you know, and have always known, including as we have pleaded and in our evidence, MWP always had and has the following certified priority funding and priority costs, which rank and always ranked in priority to the unapproved, non-adjudicated and uncertified costs of the former local reps, as per the Treaty, the law and the agreements reached;

1)    Of and as to the Reciprocal Recognition as against Slater, Nicholls et al in the EWHC, as to which it was also awarded costs, which were certified;

2)    Of and as to the Dismissal of Slater’s misconceived and failed Statutory Demand Set Aside application, including as to the SD itself, as to which it was also awarded costs, which were certified;

3)    Of and as to the Bankruptcy of Slater in the CCC, and his misconceived and failed opposition to the same, as to which it was also awarded costs, which were certified;

4)    Of and as to the Appointment first of the OR and then the Trustee and of the funding of the same, as to which it was also awarded costs, which were certified;

5)    Of and as to the purchase of Slater’s rights in the UK, as approved and certified;

6)    Of and as to the Recognition of the English Bankruptcy in Australian and the funding of the same including Messrs JF Johnson, of Counsel and Sally Nash at ONP, as to which it was also awarded costs, which were certified;

7)    Of and as to the purchase and funding of the new equipment for and repairs to the ACT House;

8)    Of and as to the variation and amendment of the NSWSC ongoing WWFO in MWP’s favour to cure the errors made by Ms Farmer and DWF, and so as to allow the Trustee, to go on title at the ALTO, this included court fees and the costs of local counsel in NSW and the ACT, all of which were approved and certified;

9)    Of and as to the unlawful and improper EFM Caveats in NSW and the ACT and also that wrongly placed by the Local Reps, without authority and contrary to instructions of the Trustee, and the funding of the same, again all approved and certified;

10)    Of and as to the Trustee going on title at the ALTO, this included ALTO and court fees, and the costs of local counsel in NSW and the ACT, all of which were approved and certified; and

11)    To give but a few examples.

It is and always was trite law and agreed that such all ranked in priority,

In contrast the Local Reps had no agreed, approved and certified costs.

Accordingly, you have materially breached the same, and acted entirely contrary to the OECD Model Law and Treaty, the laws of England and Australia, and as to the ranking and priority of creditors and have cynically and deliberately misled the Courts into serial error, namely Markovic J, Stewart J, Keane J and Colvin J.

You also put Australia in breach of Treaty, its international obligations and the applicable law, none of which should ever have occurred and as to which we are now taking further action and for which we hold you fully responsible.

(emphasis added)

174    At the case management hearing on 27 June 2024, Mr Wilson sought a vacation of the hearing date of 18 July 2024 so as to allow time for Mr Burton of senior counsel to understand the evidence served by the respondents on the application, for submissions to be filed by 9 September 2024, and for the proceeding to return for further directions thereafter.

175    On that day, I made the following orders taking into account Mr Burton’s availability on 20 September 2024:

Amended Interlocutory Application

1.    Order 5 made on 18 June 2024 be vacated and instead the Amended Interlocutory Application be listed for hearing at 10:15am on 20 September 2024.

2.    Order 2 made on 18 June 2024 be vacated and instead the time for [MWP] to file and serve any further evidence and submissions in response on the Amended Interlocutory Application be further extended to 2 September 2024.

3.    Order 4 made on 18 June 2024 be vacated and instead the time for the respondents to file a joint Court Book be extended to 16 September 2024.

(emphasis in original)

176    The date of 2 September 2024 passed without MWP filing any further evidence or any submissions.

177    On 3 September 2024 at 12:47am, Mr Wilson sent an email to my Associate:

WRT HH’s Order of 270624, we write to give the requisite three (3) day’s notice of MWP’s exercise of the liberty to apply to amend and vary the Orders made pursuant to paragraph 5 on page 2.

HH should note that with effect from 020224 by the enclosed Orders of SDR P. Clayton in the NSW SC Common Law Division, almost all of the judgments, rulings, orders, default and final costs certificates in favour of MWP were reciprocally recognised in Australia and, thereby entered into the Australian legal system and became enforceable in accordance with their terms (not just as to monetary sums), the balance of MWP’s English judgments, as well as MWP’s BVIHCV, NZHC and NZCA judgments are in the final process of being recognised by the NSWSC CLD, as a result of hearings that took place on 12-130824 and 290824, with judgment reserved, but expected to be handed down shortly. As HH knows, MWP has already recognised its Australian and NZ judgments in the UK, its Bahamas judgments in the UK, its UK and Bahamas judgments in NZ, and UK judgments in Arizona. Further, the inquiry into MWP’s damages from 030307, which includes what occurred before Markovic/Stewart J, as ordered by the EWHC, and upheld by the EWCA pursuant to the personal undertakings is now well-advanced.

Please would you be so kind as to convene a short remote hearing and provide the dial-in details and AVL, in order to discuss the issues that have arisen, noting that we are currently 5 hours behind NSW time at this time of year (in the winter/your summer will be 6 hours), and our Mr Wilson will be in London on Thursday onwards with clients where the time-zone difference is minus 9 hours.

178    On 4 September 2024 at 8:14am, my Associate responded:

I refer to the email below.

The applicant is requested to provide as soon as possible a draft of the proposed amendments or variations to previous orders that are sought.

Both the applicant and the respondents are requested to provide as soon as possible their available dates and times during the week beginning 9 September 2024.

179    At 9:03am, that day, Ms Farmer responded:

Thank you for your email.

We confirm the Respondents are largely available during the week beginning 9 September 2024, other than on the morning of Friday, 13 September 2024.

180    At 1:58pm that day, Mr Wilson responded:

Many thanks for the enclosed email in reply, we shall be in further touch, shortly as HH has kindly directed.

181    There was no further correspondence until 10 September 2024. At 9:53am that day, Mr Wilson wrote to my Associate:

See the enclosed draft Short Minutes of Order, as promised for HH.

Unfortunately, as you know, Mr Wilson our solicitor and corporate legal representative is currently overseas in the UK, which is 9 hours behind the State of NSW time-zone wise so that 6pm is 0900am for the purposes of listing any remote call-over/directions.

As HH knows, the Defendant’s have chosen not to file any defence since they were first served on 280123 and re-served on 151223 after the transfer in, so that it is not known what, if any, defences they might have and what their case could possibly by (sic) as to the breaches that occurred and the assets they failed to gather in and realise of and for the Nicholls and Slater Estates, in circumstances where the tribunal, as upheld by the EWCA on 310118, and the UKSC on 310718, with costs to MWP, and also the NSWCA on 171221 and even the HCA on 080922 found there were indeed many Australian corporations and trusts, as well as various other companies, foundations, plus various Australian and other bankers, bank accounts, houses and land, including in NSW and Victoria, Australia, so the existence of such assets is beyond question and challenge, and has been proven beyond all doubt and at the highest level.

MWP is and has been a funding, and not merely a judgment creditor of both Estates, and as a result of such has priority rights, as per the OECD Model Law, the Bankruptcy Act and the Insolvency Act.

182    That email did not refer to an affidavit of Mr Wilson made on 8 September 2024 that had been lodged with the Court at 1:51am on 10 September 2024 and accepted for filing at 9:54am that day. The affidavit referred to an exhibit, titled “MEW-3”, of 401 pages.

183    The draft Short Minutes of Order attached to Mr Wilson’s email included (as written):

Amended Interlocutory Application of 30 May 2024, as filed and sealed on 20 June 2024 (the “Amended IA”

1.    Order 2 of the orders made on 18 June 2024, as amended on 27 June 2024 (the “Orders”) be vacated and, instead, the time for the applicant to file and serve any further evidence in relation to the Amended IA, as to the Amended IA be extended to 13 September 2024, with the submissions to be due three )3) (sic) clear days prior to any hearing listed as per Order 5 below.

2.    Order 4 of the Orders be vacated and, instead, the time for the respondents to file a joint Court Book be extended to 2025.

3.    Order 5 of the Orders be vacated and, instead, the Amended IA be listed for hearing after 31 December 2024 when the audit by Messrs Ernst & Young, of MWPs IFRS financial statements through 31 December 2023 is anticipated to be completed, and the issued and signed IFRS audit opinion available (MWP will then have completed and audited IFRS financial statements for all years from 2013 through 2023, with unqualified IFRS audit opinions, issued by Messrs Ernst & Young).

(emphasis in original)

184    In essence, MWP sought orders extending until 13 September 2024 the time for the filing of its evidence on the application; for the vacation of the hearing scheduled for 20 September 2024; and for that hearing to occur at a time after certain financial statements had been finalised.

185    At 11:33am that day, Mills Oakley responded, indicating that the respondents did not consent to the vacation of the 20 September 2024 listing. Mills Oakley indicated, however, that the respondents were prepared to extend the time for the filing by MWP of any further evidence and submissions to 13 September 2024.

186    At 3:13pm that day, my Associate wrote to the parties’ legal representatives:

I refer to the email below from Mr Wilson for the applicant received at 9:53am today in response to my email of 4 September 2024 and to the response to Mr Wilson’s email from Ms Marriott for the respondents received at 11:33am today.

As Ms Marriott’s response of 4 September 2024 to my email of that date indicated that the respondents were largely available this week other than the morning of this Friday may now be stale given the passage of time since 4 September 2024, the parties are each requested to indicate as soon as possible their availability at the following times:

(1)    Thursday, 12 September 2024 at 2:00pm;

(2)    Monday 16 September 2024 at 10:00am or later;

(3)    Tuesday, 17 September 2024 at 10:00am or later.

The parties are each requested to file and serve an outline of their submissions (of no more than 2 pages) concerning the applicant’s application to have the Court make the orders sought in the attachment to Mr Wilson’s email received today, with such submissions to be filed and served 24 hours before the listing of that application.

I note also that an affidavit of Mr Wilson, which appears to be relevant to the requested re-listing has been filed. That affidavit refers to an exhibit “MEW-3” which is apparently an exhibit of 400 pages. The applicant is requested to file or otherwise make that exhibit available to the Court (and to the respondents to the extent this has not already occurred) as soon as possible.

187    At 3:40pm that day, Mills Oakley wrote:

We confirm the Respondents are available at the following times:

1.    Thursday, 12 September 2024 at 2:00pm; and

2.    Tuesday, 17 September 2024 from 10:30am or later in the day.

Our preference, as far as is practical, would be for the listing to occur this week.

We otherwise confirm the Respondents also have not been provided a copy of Exhibit MEW-3.

188    On 11 September 2024 at 12:55am, Mr Wilson sent an email to my Associate (copied to Mills Oakley):

Many thanks for the enclosed, now safely received. As requested, we shall review, check diaries, dates, availabilities and further reply, in answer.

Unfortunately, as you know, our solicitor is currently in the UK (which is presently minus 9 hours on the Commonwealth of Australia, before clocks change for summer and winter time).

189    At 2:40pm that day, Mills Oakley filed a written submission of two pages in support of its opposition to the orders attached to Mr Wilson’s 10 September 2024 email.

190    At 2:54pm, that day, Mills Oakley wrote to my Associate and Mr Wilson:

We confirm the Respondents have filed and served their submissions in response to the Applicants’ proposed orders, a copy of which is attached.

If necessary, we remain available to appear at the proposed listing at 2pm tomorrow, 12 September 2024.

(emphasis in original)

191    At 7:56pm that day, Mr Wilson responded:

We have checked our diary and commitments and with our Leading Counsel, and would be available on Thursday, 190824 (sic) at 2pm, as our solicitor Mr Wilson will be overseas in Spain at that time.

We will also send through the Exhibit.

192    At 2:03pm on 12 September 2024, my Associate sent an email to the parties:

His Honour will hear the applicant’s application concerning the proposed orders attached to Mr Wilson’s 10 September 2024 email at 9:30am on 20 September 2024.

If the applicant’s application to vacate the hearing scheduled for 10:15am on 20 September 2024 is unsuccessful, then that hearing will commence at 10:15am on 20 September 2024.

The applicant is reminded that it is to file and serve an outline of its submissions (of no more than two (2) pages) concerning its application to have made the orders sought in the attachment to Mr Wilson’s 9:53am, 10 September 2024 email, by no later than 24 hours before 9:30am on 20 September 2024.

(emphasis in original)

193    On 18 September 2024, at 10:56 pm, MWP filed a written submission of two pages in support of the orders sought in the 10 September 2024 email.

194    On 20 September 2024, at 9:30am, I heard MWP’s application for an adjournment of the hearing (and the consequential orders described in the 10 September 2024 email). MWP was represented by Mr Burton and the respondents were represented by Ms Bailey. I refused the adjournment application. I did so for the following reasons:

(1)    the reason proffered for the adjournment was to allow MWP to tender its audited financial statements for MWP for the year ended 31 December 2023 which were yet to be finalised;

(2)    the reason proffered related only to the security for costs part of the application and the bulk of the application was unaffected;

(3)    to the extent that the reason proffered went to the security for costs part of the application:

(a)    the audited financial statements for MWP for the year ended 30 December 2022 recorded a strong financial position;

(b)    no explanation was provided as to why those financial statements would have been insufficient;

(c)    the respondents had submitted, in their submissions filed on 30 May 2024 that “[b]y its own account, MWP is not at any risk of becoming impecunious or burdened by the granting of a security for costs order in the proceeding (citing in support thereof evidence in Mr Wilson’s first affidavit that “MWP is in a very strong financial position” and, inter alia, the 30 December 2022 financial statements). Thus, MWP’s financial capacity was not in issue;

(4)    hearings of applications for security for costs are usually run on the basis of the presently available evidence; and

(5)    the hearing had already been adjourned once before, on the application of MWP ([174] and [175] above).

195    I then heard the respondents’ interlocutory application. The parties were represented by the same counsel as before.

196    On that application, Ms Bailey relied upon the evidence referred to at [17] above and written submissions filed on 30 May 2024.

197    Mr Burton relied upon the evidence referred to at [17] above. Save to the extent that MWP’s 18 September 2024 submissions touched upon substantive matters, no written submissions had been filed on behalf of MWP on the substantive application despite the orders made on 1 March 2024, 18 June 2024 and 27 June 2024 for this to occur. Ms Bailey and Mr Burton each made oral submissions.

C.    APPLICATION TO RESTRAIN MR WILSON FROM ACTING FOR MWP IN THE PROCEEDING

198    Against that background, I now turn to the relief sought by the respondents.

199    The first order sought in the application is:

An order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Act) that Michael Earl Wilson be restrained from acting for Michael Wilson & Partners, Ltd in these proceedings.

(emphasis added)

200    It is common ground the Court has power to make such an order. The parties are at issue as to whether it should do so.

201    In the usual course a party is entitled to retain a legal practitioner of its choice. In the present case, it is apparent that Mr Wilson has a detailed knowledge of the events which gave rise to the present proceeding (and of the broader dispute) and that there is a considerable advantage to MWP in deploying that knowledge. However, the entitlement of a party to retain a solicitor of its choice is not an absolute right and in some circumstances, it may be necessary to prevent a party from retaining a particular legal practitioner: Western Australia v Ward [1997] FCA 585; (1997) 76 FCR 492 at 498 (Hill and Sundberg JJ).

202    The power to restrain a solicitor from acting for a particular party is exercised for the purposes of the due administration of justice: see the recent discussion in Maclean v Brylewski, in the matter of Maclean [2025] FCAFC 133 at [13] to [19] (Jackson and Moore JJ). It is a power to be exercised with caution: see Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189 at [43] to [45] and the authorities there cited (Lee J).

203    In Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475, Justice Griffiths explained at [39], relevantly, that:

The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:

(a)    The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).

(b)    The test to be applied is whether a fair-minded, reasonably informed member of the public 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 (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

(c)    Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).

…

(emphasis in original)

204    His Honour’s statement of principles was cited with approval by the Full Court of this Court in Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 at 679 to 680 [113] (Lee J; Besanko and Abraham JJ agreeing).

205    A solicitor acting for a party in a proceeding in this Court is expected, qua officer of the Court, to be more than a mere mouthpiece for the client, and to be a source of impartial and independent advice for that party. In Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 at 343 to 344 Kiefel CJ, Bell, Keane and Gordon JJ explained:

18     It may be said immediately that the view that it is somehow a benefit to the other party that a solicitor acts for himself or herself, because the expense to be borne by the losing party can be expected to be less than if an independent solicitor were engaged, is not self-evidently true. A self-representing solicitor, lacking impartial and independent advice that the court expects its officers to provide to the litigants they represent, may also lack objectivity due to self-interest. That may, in turn, result in higher legal costs to be passed on to the other party in the event that the self-representing solicitor obtains an order for his or her costs.

19     Importantly, the view that solicitors should be encouraged to act for themselves is contrary to the modern orthodoxy that it is undesirable, as a matter of professional ethics, for a solicitor to act for himself or herself in litigation. In McIlraith v Ilkin (Costs), Brereton J said:

"Where a solicitor represents a litigant, the court is entitled to expect the litigant to be impartially and independently advised by an officer of the court. Indeed, where the court concludes that a solicitor is not in a position to give impartial and independent advice to a party, because of the solicitor's own interest in the outcome, the court has restrained the solicitor from continuing to act ... Where a solicitor acts for himself or herself there cannot be independent and impartial advice, and this is in principle a strong reason for holding that a solicitor litigant should not be entitled to costs of acting for him or herself."

20     The view expressed by Brereton J is reflected in rr 17.1 and 27.1 of the Australian Solicitors' Conduct Rules, which have been adopted in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. Rules broadly equivalent to rr 17.1 and 27.1 of the Australian Solicitors' Conduct Rules also appear in the conduct rules of Western Australia and the Northern Territory.

206    In Maclean at [18] Jackson and Moore JJ explained:

The jurisdiction concerns independence. It 'arises from the court's concern that it should have the assistance of independent legal representation for the litigating parties': Oceanic Life Ltd v HIH Casualty & General Insurance Ltd [1999] NSWSC 292 at [48] (Austin J). The integrity of the judicial process is 'undermined if solicitors or counsel do not possess the objectivity and independence which their professional responsibilities and obligations to the Court require of them': Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590 (Thomas J). Thus in Grimwade v Meagher [1995] 1 VR 446 at 452, Mandie J held that the circumstances of that case:

would in my view cause a fair-minded observer to apprehend a real risk that the first defendant would be unable to appear in the said action and act with that objectivity and detachment which the court expects of counsel appearing before it and a real risk that the first defendant would be unable to properly distinguish or avoid a conflict between his personal interests and his duty to his clients in the said action. Alternatively, to adopt the test propounded by Mr. Jones, I consider that there is a real and sensible risk of a lack of objectivity by the first defendant which not only gives rise to an undue risk of unfairness or disadvantage to the plaintiff but gives rise to a substantial concern that a fair trial would not be had and hence gives rise to a concern for the integrity of the judicial process and the due administration of justice.

207    See also Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998 in which Justice Stewart stated at [31]:

… 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 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 forensic judgments called for during the case independently.

208    Also relevant to the consideration of this issue in the present case are:

(1)    ss 37M and 37N of the FCA Act, which provide in so far as is presently relevant:

37M     The overarching purpose of civil practice and procedure provisions

(1)     The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)     according to law; and

(b)     as quickly, inexpensively and efficiently as possible.

(2)     Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)     the just determination of all proceedings before the Court;

(b)     the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)     the efficient disposal of the Court’s overall caseload;

(d)     the disposal of all proceedings in a timely manner;

(e)     the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)     The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4)     The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a)     the Rules of Court made under this Act;

(b)     any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.

37N      Parties to act consistently with the overarching purpose

(1)     The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2)     A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf:

(a)     take account of the duty imposed on the party by subsection (1); and

(b)     assist the party to comply with the duty.

…

(2)    the provisions of the Guide to communications with Chambers staff and the Central Practice Note set out at [77] and [78] above; and

(3)    the following provisions of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW):

4       Other fundamental ethical duties

4.1      A solicitor must also—

…

4.1.4    avoid any compromise to their integrity and professional independence …

…

17       Independence—avoidance of personal bias

17.1      A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.

…

17.3      A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.

…

22     Communication with opponents

…

22.5      A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless—

22.5.1      the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court, or

22.5.2      the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6      A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.

22.7      A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent’s consent.

…

33       Communication with another solicitor’s client

33.1      In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless—

33.1.1      the other practitioner has previously consented,

33.1.2      the solicitor believes on reasonable grounds that—

(i)      the circumstances are so urgent as to require the solicitor to do so, and

(ii)      the communication would not be unfair to the opponent’s client,

33.1.3      the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom, or

33.1.4      there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with the communication.

209    The conduct of Mr Wilson in proceeding NSD428/2020, proceeding NSD767/2021, the High Court proceeding and the present proceeding demonstrates that Mr Wilson is unable (or perhaps, unwilling) to act with the requisite independence and impartiality and to otherwise act in the manner that solicitors in this Court are expected to act as part of the due administration of justice. Such conduct includes the following.

210    First, tendentious correspondence with Associates to Judges of this Court. As a matter of basic principle:

(1)    emails sent to an Associate should not, save in exceptional cases, be sent without the prior knowledge and consent of other parties to the proceeding;

(2)    such knowledge and consent is not established by copying the email to the solicitors for the other parties; and

(3)    emails should be confined to matters of practice and procedure and not address matters in contention in the proceeding.

211    In addition to the clear guidance provided for by paragraphs 2.1(b), 3.4, 3.7, 4.1(e) and (f) and 4.2) of the Guide to communications with Chambers staff and cll 15.1 and 15.2 of the Central Practice Note, the position is well-established in case law.

212    In R v Fisher [2009] VSCA 100; (2009) 22 VR 343 at 351 to 352 ([38] to [39]), Redlich and Dodds-Streeton JJA explained:

38    It is “important to bear in mind the characteristics of modern litigation” as Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design and Development Pty Ltd. It is commonplace for judges, whether in the course of case management or otherwise, to be provided with bundles of materials, documents for tender, affidavits, and emails not all of which will be tendered or read. But in all such cases the party providing them is bound to simultaneously provide them to the other side. The circumstances in which direct communications may be made to the judge’s associate are subject to important qualifications. Written communications between a party to litigation and the judge’s associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party’s express agreement (save in an exceptional case warranted for example by an ex parte application).

39    Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to inquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges’ chambers, presents potential risks of the errors demonstrated in the present case.

(footnotes omitted; emphasis added)

213    In Ken Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [2013] NSWSC 1971, Justice Kunc, in an oft-cited passage, explained at [17] to [22]:

17    Applying the Solicitors’ Rules to the present case, the proper analysis is:

(1)    In accordance with the directions which I had made, the fifth plaintiff was entitled to email to my chambers the joint report of the accounting experts. However, there was a dispute between the parties as to whether Mr Pickham’s note and Annexures A and B could properly be described as forming part of that report.

(2)    Given the third defendant’s express objection, the fifth plaintiff’s solicitor should not have transmitted Mr Pickham’s note and Annexures A and B to my chambers.

(3)    The fact that the fifth plaintiff’s solicitor’s email drew attention to the third defendant’s objection did not cure the breach.

18    A distinction needs to be drawn between where a party objects to material being transmitted to a judge at all and where a party consents to material being transmitted to a judge and to the judge reading it, notwithstanding that when it will be formally tendered or otherwise relied upon, objection will be taken to that material. In many cases, the latter course is a sensible one which can save time in court. However, no party should feel compelled to agree to material being provided in advance to a judge on that basis.

The correct approach

19    Email has done away with what might be thought to have been the last practical barriers to quick and easy communication with a judge’s chambers. There are many types of communication, including by email, with a judge’s chambers which can assist the parties and the Court in achieving a just, cheap and quick resolution of proceedings (see s 56 of the Civil Procedure Act 2005 (NSW)). This can include the advance provision of material proposed to be relied upon in court.

20    However, the natural and well intentioned desire on the part of legal practitioners to send a communication to a judge’s chambers copied to all the parties, which, at first blush, might appear to promote the efficient conduct of proceedings must always be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance) by communications sent without either the knowledge or consent of all parties. As I have said in paragraph [17] above, sending such a communication with a disclosure of the other parties’ lack of knowledge or lack of consent does not cure any impropriety.

21    As a practical matter, and consistently with the principles and rules to which I have referred, I summarise the position as follows. There should be no communication (written or oral) with a judge’s chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge’s chambers should be provided to the other parties for their consent. There are four exceptions to this:

(1)    trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);

(2)    ex parte matters;

(3)    where the communication responds to one from the judge’s chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge’s associate); and

(4)    exceptional circumstances.

22    There are three other matters. First, any communication with a judge’s chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate’s or tipstaff’s attention the reason for the communication being sent without another parties’ knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge’s chambers in relation to proceedings should always be copied to the other parties.

(bold emphasis in original; underline emphasis added)

214    As Justice Peden recently observed in NSW Construction Corporation Pty Ltd v Commonwealth Bank of Australia [2025] NSWSC 848 at [10], Justice Kunc set out in Tugrul at [19] to [20] matters that ought be obvious to all practitioners.

215    Further, this is not a modern phenomenon resulting from the introduction of email as a preferred form of communication. In Re Dyce Sombre (1849) 1 Mac.&G. 116; 41 E.R. 1207 at 1209, Cottenham LC stated:

Every private communication to a Judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated ; it is a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of Court.

216    In Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 at 350, Mason J explained:

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice: In re Dyce Sombre (22) per Lord Cottenham L.C. Indeed, it is regarded as a serious contempt.

217    Examples of Mr Wilson’s failure to observe these fundamental principles with respect to communications with the Court are set out above, and in particular, at [40], [41], [51], [65], [69], [75], [85], [86], [100], [108], [111(1)], [111(3)(e)], [113], [114], [118], [119], [123(1) to (3)], [124], [125(2)], [127], [177] and [181]. Notably, this conduct continued despite several reminders to Mr Wilson of his obligations to comply with the Court’s guidance as to communication with Chambers ([76] and [109] above) and the criticism of such conduct on 1 April 2022 by Justice Stewart in Michael Wilson & Partners Ltd v Porter [2022] FCA 336 at [54]: “Mr Wilson has also burdened my Chambers from time to time with argumentative and prolix correspondence, even after it has been pointed out to him that such conduct is inappropriate and he has been told to desist from it.” ([84] above). Indeed, Mr Wilson sent further inappropriate emails that very day ([85] above) and three days later ([86] above).

218    As is plain, those communications regularly set out Mr Wilson’s views as to contentious matters, including: (1) the underlying merits of the case at hand and the broader saga; and (2) the propriety of the respondents’ legal representatives. They were sent with an obvious purpose of attempting to influence the Court.

219    Mr Wilson’s position, as expressed in his affidavit evidence, on this application with respect to the emails set out at [41], [51], [65], [69], [75], [85], [86], [100], [108], [111(1)], [111(3)(e)], [113], [114], [118], [119], [123], [124], [125(2)] and [127] above (each of which was sent without the prior agreement of, or advance notice to, Mills Oakley) is: (1) as these emails were copied to Ms Farmer there was no need for prior agreement or advance notice; (2) Ms Farmer’s suggestion in her affidavit that such agreement or notice was necessary is a false suggestion; and (3) it is clear on the face of the emails that there is nothing wrong with such correspondence and Ms Farmer “is trying to make a point out of nothing”. This displays a disturbing lack of insight while also demonstrating that such conduct is likely to continue.

220    Secondly, similarly tendentious correspondence with:

(1)    the Assistant to Registrar Segal ([116], [127] and [131] above);

(2)    the Deputy Registrar of the High Court of Australia ([121], [123], [124] and [125(2)]) in which Mr Wilson:

(a)    made lengthy representations to the Deputy Registrar as to his view of the merits of the dispute and as to the alleged conduct of Mr Porter and Mr Moretti;

(b)    suggested that the Deputy Registrar was wrong in law and fact;

(c)    considered it appropriate to remind the Deputy Registrar of his and the High Court of Australia’s duties of even-handedness, fairness, objectivity and impartiality;

(3)    Registrar Jones of the Supreme Court of New South Wales ([135] and [138] above); and

(4)    the Associate to Acting Justice Schmidt of the Supreme Court of New South Wales. The lengthy email set out at [146] above and which addressed the underlying merits of the dispute was sent after her Honour’s Associate had notified the parties that judgment was to be delivered the following day.

221    Thirdly, intemperate communications with Mills Oakley. The chronology of events set out above does not include all of the correspondence between Mr Wilson and Mills Oakley. However, it does provide a flavour of the tone of correspondence written by Mr Wilson (see, e.g. [142] and [144] above).

222    Fourthly, the inclusion in affidavit evidence of Mr Wilson read on this application and in earlier proceedings of contentious assertions as to the character and alleged behaviour of legal practitioners retained by the respondents. These include (and the examples below are, regrettably, far from exhaustive):

(1)    allegations that Mr Golledge, Ms Bailey and Ms Farmer have wrongly colluded and conspired with Mr Emmott and his lawyers against MWP ([12] and [162] above). I was not directed to any pleading in which such grave, and strenuously denied, allegations have been pleaded. Similar allegations have been made in correspondence (e.g. [144], [158], [170] and [172] above);

(2)    allegations that Mr Golledge and Ms Farmer are acting or have acted so as to take all monies for themselves ([43] above). Similar allegations have been made in correspondence ([123(3)] and [172] above);

(3)    assertions that Ms Farmer “has moved firms many times and has a checkered and dubious history and experience, and practices (sic) at the lower end of the profession” ([162] above); “moves around a lot and struggles to stay in one place” ([162] above)]; and works at a “very low level” ([167] above) (apparently in contrast to Mr Wilson who described himself as having “worked all my career at the very highest level and top of the profession” and who averred, as to his time with Baker McKenzie, that he was “the founder, single-handedly, from scratch and with no financing and support of the global firm, of the most successful group of new offices … in the entire history of that firm, and anywhere in the world, earning more than even the Chairman ever did”). Similarly, Mr Wilson’s allegation that he has “never before experienced a solicitor as incompetent as Ms Farmer” ([162] above);

(4)    an allegation that “there is no doubt that Messrs Farmer, Golledge and her firm (sic) had coached Mr Porter prior to his giving evidence” ([56(1) above]);

(5)    allegations as to the “paint[ing] of a deliberately improper, false and misleading picture” and of acting so as “to defame, disparage and abuse myself and MWP, which is wholly improper and unbefitting” ([162] above; see also the correspondence at [172] above) and other allegations of the same or similar ilk; and

(6)    the following allegation in Mr Wilson’s second affidavit:

As can be seen from the quality of MWP’s pleadings, settled by counsel, MWP has presented an overwhelming and very formidable case, which is no doubt what so terrifies Ms Farmer and her clients so that, instead of filing a defence, they have chosen to embark on an ill-advised course of abusing myself and MWP, for no good and proper reason, and in a manner contrary to Ms Farmer’s and Messrs Golledge and Bailly’s (sic) duties as a solicitor, and as barristers and officers of the Court, respectively, including under the Legal Profession Uniform Law Solicitors’ Conduct Rules 2015, as amended.

223    Fifthly, much of the evidence sought to be adduced by Mr Wilson on the present application (including voluminous exhibits) is not in an admissible form, often takes the form of submissions, and is often of little to no relevance to the application.

224    The tendency of Mr Wilson to include large amounts of irrelevant and extraneous material has been the subject of comment by other judges in this Court, including:

(1)    Justice Markovic in Porter, in the matter of Slater (No 2) [2020] FCA 1547 at [15] ([48] above);

(2)    Justice Markovic in Porter, in the matter of Slater (No 3) [2021] FCA 688 at [18] and [134] ([60] above);

(3)    Justice Stewart in Michael Wilson & Partners Ltd v Porter [2022] FCA 336 at [53] ([84] above); and

(4)    Justice Stewart in Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998 at [11(3), (7), (8), (9), (10) and (11)] ([107] above).

225    To similar effect are the observations of Justice Ball in 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 (No 3) [2024] NSWSC 163 at [40]:

... In order to discharge the onus it bears, MWP must explain in a clear and concise manner precisely what documents it requires and why those documents are necessary for the resolution of the real issues in the case. The affidavit sworn by Mr Wilson in support of the current application makes no attempt to do that. In support of the previous application, Mr Wilson swore several affidavits and exhibited a large volume of material which together took up most of a four-volume court book that was more than 3000 pages long. Those affidavits contained many irrelevant and often unsupported allegations. Again, they do not provide a proper foundation for an application for disclosure in advance of evidence.

226    Sixthly, Mr Wilson’s conduct in Court and in advancing written submissions, where he has on numerous occasions fallen well short of the standards expected of a practitioner appearing before the Court in their dealings with the judicial officer and with their opponent. Examples include:

(1)    the statements made by Mr Wilson concerning Mr Golledge at the 21 July 2020 hearing ([33] above) including:

(a)    “Mr Golledge is the usual abusive self”;

(b)    “He has gone grossly over the top, as usual”;

(c)    “Mr Golledge has a vested financial interest”;

(d)    “Mr Porter and his lawyers want to take the entire net proceeds for themselves”;

(2)    the statements made by Mr Wilson to Justice Markovic at the 21 July 2020 hearing ([33] above) including:

(a)    “Just listen to me. Stop butting in”;

(b)    “So you didn’t listen to me”;

(c)    “No. What are you talking about? Look at the document … What are you talking about? Look at the document”;

(d)    “Please don’t make inaccurate statements”;

(e)    “But you’re losing focus. You’re losing focus entirely”;

(f)    “You’ve lost sight of what this is all about”;

(3)    the statements made by Mr Wilson at the 19 October 2020 hearing that “Mr Golledge wishes to bury the dead bodies … and doesn’t want the truth of the matter to come out. That’s what he’s scared of, and that’s why in the evidence he fails to engage on the real issues in this case … And Mr Golledge’s slur, of course, is typical …” ([49] above);

(4)    the statements made by Mr Wilson at the 26 October 2020 hearing that Mr Golledge and Ms Farmer deliberately damaged MWP by cancelling MWP’s freezing order ([55] above);

(5)    the interruption of Justice Stewart during the delivery of judgment on 1 April 2022 and the argument which followed during which Mr Wilson accused his Honour of shutting him out ([81] above); and

(6)    the written submissions filed on 24 August 2022 ([104] and [105] above) which included “unfortunately, it has become clear that His Honour is apparently and actually biased against MWP and has lost all sense of justice, even handedness”, “[t]he Court and His Honour have entirely lost sight of the reality of this matter” and “[t]he Court’s conduct losing the sight of all these matters is bringing and has brought the administration of justice into disrepute”.

227    I note that in his affidavit evidence read on this application, Mr Wilson explained that: “I am not as current and up-to-date in Australia, as I am in England, especially relating to the Australian law and evidence and the style, nature and content of affidavit, witness statements and inter-partes correspondence” ([162] above). This may provide an explanation for some of the conduct outlined above, but does not excuse it. Notably, despite these limitations, Mr Wilson has expressed very strongly held but mistaken views as to various aspects of procedure in this country. For example:

(1)    in his first affidavit on the present application, Mr Wilson contends that it was “wrong and improper” for Ms Farmer to have sworn her first affidavit before Ms Marriott, her employed solicitor. Mr Wilson contends that: “[i]t is trite law and practice that affidavits must be sworn before an independent solicitor, not one who is instructed and involved in working for the same law firm, and/or a notary or consular officer”, and that accordingly the affidavit had not been validly signed and sworn ([162] above). Quite properly, Mr Burton took no such objection to Ms Farmer’s first affidavit;

(2)    in his second affidavit on the present application, Mr Wilson contends that there is a significant problem with the form and structure of both of Ms Farmer’s affidavits because: (a) those affidavits were affirmed by Ms Farmer rather than sworn; and (b) affirmed evidence can only be presented in the form of an affirmation. Mr Wilson contends that each of these affidavits “… therefore needs to be entirely re-structured, re-drafted, re-signed, filed and served, presumably as an affirmation and not as an affidavit. Being the quality of lawyer that she is, Ms Farmer seems not to understand the material and obvious difference between an affidavit on the one hand, and an affirmation on the other hand, though most lawyers learn this simple fact and legal principle at law school and during their traineeships before qualification, hence further proving the point made in [Mr Wilson’s first affidavit] as to the quality of Ms Farmer and her work…” ([167] above). Again, quite properly, Mr Burton took no such objection to either of Ms Farmer’s affidavits; and

(3)    in his 22 October 2021 email to the Associate to Justice Stewart, Mr Wilson opined that the provision of proposed case management orders by the legal representatives for Mr Porter and Mr Moretti was unnecessary (because, he contended, it was MWP’s appeal and MWP had carriage of it) and that the provision of such orders was “most unhelpful, regrettable and unfortunate” ([65] above).

228    The comments made by Mr Wilson concerning Ms Farmer are based upon false premises as to correct procedure in this country and are comments that no solicitor, acting in accordance with a sound knowledge of their obligations, would make.

229    Seventhly, Mr Wilson continues to contest findings made despite avenues of appeal having been exhausted. In his affidavit evidence on this application, Mr Wilson contends that:

(1)    Justice Stewart was “entirely wrong” to award the costs of the security for costs application against MWP because that application was not heard or decided (Mr Wilson’s 11 June 2024 affidavit at [29]);

(2)    “both Markovic J and Stewart J got the law wrong” (Mr Wilson’s 11 June 2024 affidavit at [11]);

(3)    “MWP does not accept or agree that the purported summary set out in paragraphs [22] to [47] of the Markovic J judgment of 25.06.21 contains a fair, complete or accurate summary, indeed, nothing could be further from the truth” (Mr Wilson’s 13 May 2024 affidavit at [60]);

(4)    “it is and was highly improper for Stewart J to have allowed the costs of the security for costs application” (Mr Wilson’s 13 May 2024 affidavit at [92]);

(5)    “the comment in paragraph 70 of Stewart J is inaccurate” (Mr Wilson’s 13 May 2024 affidavit at [104]); and

(6)    as to paragraph 30 of Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998, which is set out at [107] above, “what Stewart J states is not correct, since I am not a “principal” of MWP and do not have a financial interest” (Mr Wilson’s 13 May 2024 affidavit at [151]).

230    Eighthly, Mr Wilson has been responsible for delays. This has been a recurring theme in the proceedings discussed above. See, e.g., [84], [99], [160] and [197] above.

231    Finally, Mr Wilson, in some of the correspondence he sent to the Court and Mills Oakley copied one or more of the respondents. In other cases, one or more of the respondents were included but it appears that Mills Oakley was not. Some examples are set out at [69], [87], [113], [114], [118], [119] and [158] above. In his evidence on this application, Mr Wilson maintains that because MWP as the judgment and funding creditor nominated and chose Mr Cronan and Mr Van der Velde as the trustees of the bankrupt estate of Mr Nicholls, and Mr Porter and Mr Moretti as local representatives of Ms Palmer for the bankrupt estate of Mr Slater, funded their appointment and some of their work, “MWP is and was perfectly entitled to contact the respondents directly and has long done so. Direct communication is and has always been important”. This is an inadequate and ill-informed explanation. Where, as here, a party is represented in a proceeding, it is inappropriate for a solicitor acting for another party to correspond with the first party in the manner that Mr Wilson has: see r 33 of the Solicitors’ Conduct Rules ([208(3)] above).

232    For the reasons set out above, I am satisfied that a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that Mr Wilson be restrained from acting, so as to protect the integrity of the judicial process and the appearance of justice. Indeed, I am satisfied that the hypothetical fair-minded, reasonably informed member of the public would readily reach such a conclusion in the light of the conduct and Mr Wilson’s disturbing lack of insight into why such conduct is unacceptable.

233    As noted at [201] above, it is apparent that Mr Wilson has a detailed knowledge of relevant events and there is a considerable advantage to MWP in deploying that knowledge. However, there is no reason to believe that the making of the order sought by the respondents would deprive MWP of access to the knowledge accumulated by Mr Wilson. His evidence is that he is an employee of MWP and there is no suggestion in his evidence that his knowledge would be unavailable to MWP if the order sought by the respondents were to be made.

234    I accept that there will be a cost involved in an independent solicitor becoming familiar with the underlying facts and the (relevant) history of the saga to date. However, there is no suggestion that MWP is unable to bear such a cost, and in any event this consideration is outweighed by the matters described above which provide a compelling case for restraining Mr Wilson from acting as the solicitor for MWP in this proceeding.

235    The appointment of an independent solicitor, admitted to practise in this jurisdiction, to act for MWP in this proceeding may be expected to act as a filter between Mr Wilson on the one hand; and the Court, its employees, the respondents and the legal representatives of the respondents on the other. It is expected that such a solicitor will display the requisite detachment, independence and impartiality, acting in accordance with well-established norms of professional behaviour and observing their professional obligations, including those set out in s 37N of the FCA Act, the Solicitors’ Conduct Rules and the Guide to communications with Chambers staff.

D.    RELIEF UNDER SECTION 37AO OF THE FCA ACT

236    I turn now to the respondents’ application for relief under s 37AO of the FCA Act.

237    As set out at [14] above, the respondents seek several orders pursuant to that section, namely:

(1)    orders pursuant to s 37AO(2)(a) that the proceeding be dismissed, or stayed as against Mr Porter and Mr Moretti;

(2)    an order pursuant to s 37AO(2)(b) that MWP be prohibited from instituting any proceeding in this Court, or filing any application or originating process in any existing proceeding in this Court, either in its own name or in the name of any other person against any of Mr Porter or Mr Moretti and relating to or in any way connected with the bankrupt estate of Mr Slater, without first obtaining leave of the Court;

(3)    an order pursuant to s 37AO(2)(c) that within 14 days, MWP pay to Mr Porter and Mr Moretti the amount of $74,984 being the amount owing under the costs orders made against MWP in proceedings NSD428/2020 and NSD767/2021 in this Court and proceeding S68/2022 in the High Court of Australia; and

(4)    an order pursuant to s 37AO(2)(c) that MWP provide security for the respondents’ costs in this proceeding.

D.1    Does s 37AO of the FCA Act apply?

238    Section 37AO of the FCA Act provides:

37AO    Making vexatious proceedings orders

(1)     This section applies if the Court is satisfied:

(a)     a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)     a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)     The Court may make any or all of the following orders:

(a)     an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)     an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)     any other order the Court considers appropriate in relation to the person.

(3)     The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)     the Attorney-General of the Commonwealth or of a State or Territory;

(b)     the Chief Executive Officer;

(c)     a person against whom another person has instituted or conducted a vexatious proceeding;

(d)     a person who has a sufficient interest in the matter.

(4)     The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)     An order made under paragraph (2)(a) or (b) is a final order.

(6)     For the purposes of subsection (1), the Court may have regard to:

(a)     proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)     orders made by any Australian court or tribunal; and

(c)     the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

239    The following terms used in s 37AO are defined in s 37AM of the FCA Act:

37AM    Definitions

(1)     In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)     for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)     for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c)     for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d)     for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding:

(a)     in relation to a court—has the meaning given by section 4;

…

proceedings of a particular type includes:

(a)     proceedings in relation to a particular matter; and

(b)     proceedings against a particular person.

vexatious proceeding includes:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)     a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)     a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)     a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

240    There is a threshold question as to whether s 37AO applies. For it to apply, either s 37AO(1)(a) or (b) must be satisfied. The respondents rely upon s 37AO(1)(a). For s 37AO(1)(a) to apply, the Court must be satisfied, relevantly, that MWP “has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”.

241    The four cumulative conditions necessary to engage the operation of s 37AO(1)(a) are that a person (here, MWP) has: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; and (4) in Australian courts or tribunals: see Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; (2024) 304 FCR 318 at 324 [20] (Lee, Feutrill and Jackman JJ); Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157 at [18] (Cheeseman, Goodman and McEvoy JJ).

242    It is convenient to:

(1)    identify at the outset the “proceedings” which the respondents contend have been frequently instituted or conducted in Australian courts or tribunals in a manner which satisfies the definition of “vexatious proceeding”;

(2)    then consider whether such proceedings are proceedings in an Australian court or tribunal;

(3)    then address whether such proceedings are “vexatious proceedings” within that term as defined; and

(4)    finally, consider whether MWP has frequently instituted or conducted such proceedings.

D.1.1    Proceedings

243    “Proceeding” is defined in relation to courts as having the meaning given by s 4 of the FCA Act. That section provides:

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

244    The definition of “proceeding” is expressed in terms which include interlocutory applications: see Storry at 324 to 325 ([24]) and Ferdinands at [13] (and the authorities there cited).

245    The respondents rely upon the following as constituting “proceedings”:

246    I am satisfied that with the exception of the 29 April 2022 special leave application (which was not filed and as such is “not a proceeding in a court …”) each of the proceedings identified by the respondents is a “proceeding” for the purposes of the FCA Act.

247    I will refer hereafter to the proceedings in the table at [245] above, save for the 29 April 2022 special leave application, as the identified proceedings.

D.1.2    Proceedings in Australian courts or tribunals

248    It is clear that each of the identified proceedings is a proceeding in an Australian court or tribunal.

D.1.3    Vexatious proceedings

249    I turn now to consider whether the identified proceedings are vexatious proceedings.

250    The (non-exhaustive) definition of “vexatious proceedings” is set out at [239] above.

251    The respondents contend that each of the identified proceedings is vexatious because, inter alia, those proceedings have been, or are being, conducted by MWP in a way so as to harass or annoy, or cause delay or detriment.

252    In this regard, I note that the proceedings numbered 2, 3, 4, 6, 8, 9, 10 and 11 in the table at [245] above were instituted by MWP; and proceedings numbered 1 and 7 were instituted by the respondents (or some of them). However, the focus in this case is less upon the institution of proceedings and more upon the manner in which they have been conducted. Clearly MWP’s conduct of those proceedings is relevant conduct for the purposes of s 37AO(1)(a). As s 37AO(6) makes plain, for the purposes of s 37AO(1), the Court may have regard to MWP’s overall conduct in proceedings conducted in any Australian court (regardless of which party instituted such proceedings). See also Ferdinands at [18].

253    The conduct relied upon by the respondents includes the conduct upon which they rely in support of the application for an order that Mr Wilson be restrained from acting for MWP in this proceeding.

254    That conduct has been considered in some detail at [19] to [193] above. For the reasons there set out and in particular as summarised at [210] to [231] above, I am satisfied that MWP’s conduct in the identified proceedings, through Mr Wilson, has had the result that such proceedings have been conducted “in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose” within the meaning of sub-paragraph (d) of the definition of “vexatious proceeding” in s 37AM of the FCA Act.

255    For the reasons set out above, I am satisfied that, for each of the identified proceedings, MWP conducted such proceedings in a manner sufficient to satisfy the definition of “vexatious proceeding”.

D.1.4    Has MWP frequently instituted or conducted such proceedings?

256    I turn now to consider whether MWP has conducted vexatious proceedings “frequently”.

257    Justice Perry explained in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [112] to [114]:

112    The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered”: Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the Court may find that a person has instituted or conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).

113    Thus in Fuller, for example, the applicant against whom a vexatious proceedings order under s 37AO was made had commenced five separate proceedings over a period of approximately five years. Having regard to the circumstances and the conduct of those various proceedings, Barker J was satisfied that the applicant had “frequently” instituted and conducted proceedings of the type contemplated by s 37AO notwithstanding that “the number of proceedings may be considered small”. Similarly, in Jones, in determining whether the applicant had “frequently” instituted proceeding for the purposes of former O 63, r 6(1) of the High Court Rules, Toohey J held that the five proceedings initiated by the applicant during a six year period “readily answer[ed] that description”.

114    In short, there being no numerical threshold prescribed by Part VAAA itself, the question of whether an applicant has “frequently” instituted or conducted vexatious proceedings for the purposes of s 37AO must be answered in the circumstances of the particular case.

(emphasis in original)

258    Her Honour’s explanation has been adopted subsequently, including by the Full Court of this Court (Besanko, Logan and McKerracher JJ) in Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 at 545 to 546 ([33]).

259    In the present case, the vexatious conduct has carried across the identified proceedings since 2020. As is demonstrated by the conduct described at length above, MWP has regularly and often acted in a vexatious manner. I am well-satisfied that MWP has frequently conducted vexatious proceedings within the meaning of s 37AO(1) of the FCA Act.

260    For the above reasons, s 37AO(1) of the FCA Act is satisfied. I turn now to consider the various forms of relief sought by the respondents based upon s 37AO.

D.2    Should the proceeding be dismissed; or stayed as against Mr Porter and Mr Moretti?

261    The Court has a discretion under s 37AO(2)(a) of the FCA Act to dismiss or stay all or any part of an existing proceeding. That discretion has been enlivened by the satisfaction of s 37AO(1).

262    I am not presently minded to make such an order because the order restraining Mr Wilson from acting as the solicitor for MWP, together with the requirement in r 4.01(2) of the Federal Court Rules 2011 (Cth) which requires that companies must not proceed in the Court other than by a lawyer, means that MWP will be represented in the present proceeding by a lawyer admitted to practise in this jurisdiction other than Mr Wilson. This may reasonably be expected to protect the integrity of the judicial process, by providing sufficient protection to the Court, its employees, the respondents (and their solicitors) and other litigants from the effects of conduct of the types earlier described. Of course, if the appointment of an independent lawyer does not achieve this aim with the result that such conduct continues, the application may be renewed.

263    Further, this is not a case in which it has been demonstrated that there is no viable cause of action. As noted at [61] and [62] above, the present proceeding is, in part, the claim left open by Justice Markovic in Porter, in the matter of Slater (No 3) [2021] FCA 688.

D.3    Should a vexatious proceedings order be made?

264    The Court has a discretion under s 37AO(2)(b) of the FCA Act to make an order prohibiting MWP from instituting proceedings of a particular type. That expression is defined in s 37AM of the FCA Act as including proceedings relating to a particular matter and proceedings against a particular person. The orders sought satisfy this definition.

265    It is also plain that, as is required by:

(1)    s 37AO(3), the application has been brought by a person named in that sub-section, namely other persons against whom MWP has conducted vexatious proceedings (i.e. the respondents); and

(2)    s 37AO(4), MWP has been heard on this application.

266    Thus, the discretion to make a vexatious proceeding order has been enlivened. In the exercise of that discretion, I bear in mind that the purpose of a vexatious proceeding order is protective (and not punitive). It is to be made so as to protect other parties and potential parties to proceedings, the Court and other litigants from the effects of vexatious conduct.

267    I also bear in mind that a vexatious proceeding order is an extreme measure, albeit that the Court should not be timid in making such an order when it is required: see Storry at 323 to 324 ([18]) and 347 ([71]); Ferdinands at [16] to [17].

268    In a case involving an unrepresented litigant where the vexatious conduct has been engaged in by that litigant, a vexatious proceeding order is often necessary so as to provide the Court with a degree of control over any future proceeding, by prohibiting the filing of such future proceedings without obtaining the prior leave of the Court.

269    This case stands apart from many of the other cases in which a vexatious proceeding order has been made, in that the person who has engaged in the vexatious conduct is not an unrepresented litigant but instead a party represented by a solicitor. Further, that conduct – albeit attributable to the party to the proceeding (MWP) – is conduct that has been engaged in by that party’s solicitor (Mr Wilson).

270    In the present case, adequate protection from future vexation of the kind displayed to date can be achieved by a lesser form of order, namely that Mr Wilson be restrained, without the prior leave of the Court, from acting for MWP (either in its own name or in the name of any other person) in any other proceeding in this Court which is brought against Mr Porter or Mr Moretti and which relates to, or is, in any way connected with the bankrupt estate of Mr  Slater. Such an order should provide adequate protection in the manner described at [262] above. Again, should this not eventuate, then the application may be renewed.

271    It follows that the order sought by the respondents should not be made but instead the lesser order referred to in the previous paragraph should be made.

D.4    Should MWP be ordered to pay within 14 days the amounts owing under costs orders in previous proceedings?

272    Orders 4a, 5 and 6 sought by the respondents on this application are:

4.    Further or in the alternative,

a.    an order pursuant to s 37AO(2)(c) of the Act that, within 14 days, [MWP] pay to [Mr Porter and Mr Moretti] the amount of $74,984, being the extant costs orders made against the Respondent in Federal Court of Australia proceeding numbers NSD428/2020 and NSD767/2021 and High Court of Australia proceeding number S68/2022; and

...

(together, “security”)

5.    The proceedings be stayed pending the provision of the above security.

6.    An order pursuant to s 56(4) that, if security is not provided strictly in accordance with the timeframe in Order 4, the proceedings be dismissed.

273    The amount of $74,984.05 owing by MWP to Mr Porter and Mr Moretti pursuant to orders made by this Court and the High Court of Australia has been owing for a considerable time and has not been paid despite demands ([73] and [156] above). The calculation of that amount is set out in the table extracted at [156] above. Such non-payment demonstrates contempt for the orders made by this Court and the High Court of Australia. This should be remedied before the present proceeding continues further.

274    Thus, an order to the effect of that sought, but allowing a period of 21 days to effect payment, should be made.

275    I will also make an order that the proceeding be stayed if the security is not provided within the specified time. I am not minded at this stage to order that the proceeding be dismissed if the security is not provided. If the security is not provided, then the respondents may make an application for dismissal, which can be considered by reference to the circumstances which then exist, including any explanation for such default.

D.5    Should security for costs be ordered under s 37AO(2)(c) of the FCA Act?

276    For the reasons set out in section E below, an order for the provision of security for costs will be made pursuant to s 56 of the FCA Act. It follows that it is unnecessary to consider whether such an order can, or should, be made under s 37AO(2)(c) of that Act.

E.    SECURITY FOR COSTS

277    Orders 4b, 5 and 6 sought by the respondents are:

4.    Further or in the alternative,

…

b.    an order pursuant to s37AO(2)(c) or s56(1) of the Act, or s1335 of the Corporations Act 2001 (Cth), that, within 14 days, [MWP] provide security for the [respondents’] costs in the sum of $239,500, by paying that sum into Court.

(together, “security”)

5.    The proceedings be stayed pending the provision of the above security.

6.    An order pursuant to s 56(4) that, if security is not provided strictly in accordance with the timeframe in Order 4, the proceedings be dismissed.

278    Security for costs is sought on several bases.

279    One basis is s 1335 of the Corporations Act 2001 (Cth) which provides, in so far as is presently relevant:

1335    Costs

(1)     Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

280    As noted above, there is no contest that MWP is in a strong financial position. There is also no evidence from which it might be inferred that MWP is unable (as opposed to unwilling) to pay an adverse costs order. It follows that the discretion in s 1335 of the Corporations Act is not enlivened.

281    Another basis is s 56(1) of the FCA Act which provides, in so far as is presently relevant:

The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

282    The discretion conferred by s 56 of the FCA Act is at large, subject of course to it being exercised judicially: see e.g., All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Australia Limited [2020] FCA 840 at [40] to [43] (Allsop CJ). See also Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1 at 4 [6] (Allsop CJ and Middleton J) and Commissioner of Taxation (Cth) v Vasiliades [2016] FCAFC 170; (2016) 344 ALR 558 at 578 [71] (Kenny and Edelman JJ).

283    The purpose to be served by making an order for security for costs is to ensure that successful respondents to a claim will have a fund available within the jurisdiction of the Court against which those respondents, if successful in their defences, can enforce a judgment for costs in their favour: Vasiliades at 579 [72].

284    The evidence establishes the following.

285    First, MWP is a corporation incorporated outside of Australia ([4] above).

286    Secondly, MWP is a financially strong corporation.

287    Thirdly, MWP has been ordered by this Court and the High Court of Australia to pay costs to Mr Porter and Mr Moretti, and has, despite demand for such payment, defied the orders of both Courts.

288    Fourthly, the only payments received by Mr Porter and Mr Moretti in satisfaction of those costs orders have been amounts received from Westpac pursuant to garnishee orders ([126] and [141] above). A summary of the amounts outstanding is set out in the table extracted at [156] above.

289    Fifthly, the evidence establishes that MWP has no real property or shareholdings in Australia.

290    In this regard, Mr Wilson, in his affidavit evidence on this application, stated that MWP has a 67 per cent interest in a partnership known as the Temujin partnership “which as the NSWCA found on 17.12.21 has numerous corporations (eight), trusts (four), shares, options, warrants and real estate in NSW and Victoria, Australia…” .

291    The reference to the decision of the Court of Appeal of the Supreme Court of New South Wales is a reference to Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 (Leeming and Brereton JJA, and Emmett AJA). One of the issues for consideration in that appeal was whether the primary judge erred in deciding, for the purposes of r 11.5(5)(a) of the Uniform Civil Procedure Rules 2005 (NSW), that a claim brought by MWP, in effect for an account of the Temujin partnership, lacked a “real and substantial connection” to Australia.

292    The Court of Appeal found that the requisite connection was established by what appeared to be a sufficiently arguable allegation that the partnership owned assets in Australia (at 500 [2] (Leeming JA); 530 to 533 [94], [95], [98] and 539 to 540 [122] (Brereton JA); and 543 [140] to [141] (Emmett AJA)). Thus, contrary to MWP’s submission on this application, the Court of Appeal did not find that the partnership in fact held assets in Australia.

293    On this application, I was not directed to evidence of such assets, either as at the time of the Court of Appeal’s decision, or as at the time of the application under consideration. Although there is evidence that MWP has an account or accounts with Westpac, I was not directed to evidence as to the balance of such account or accounts and as noted above the garnishee orders addressed to Westpac returned an amount insufficient to meet present costs orders.

294    Thus, I am not satisfied that MWP holds assets in Australia against which an adverse costs order might be exercised.

295    As Kenny and Edelman JJ explained in Vasiliades at 579 [72]:

… if an applicant in a proceeding is ordinarily resident outside the jurisdiction, an award of security for costs means that a respondent “does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement”: Energy Drilling at 50,422 (Gummow J). See also: Logue at [18] (Weinberg J); Gain Capital UK Ltd v Citigroup Inc (2015) 114 IPR 307; [2015] FCA 1009 at [18] (Yates J); and Oswal at [57] (Nicholas J).

296    See also 584 [90] and 587 [108].

297    Their Honours also referred (at 579 [74]) to the reasons for judgment of McHugh J in P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321 where his Honour stated at 323:

… for over 200 years the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.

298    As Kenny and Edelman JJ also explained in Vasiliades at 579 to 580 [75], the fact that an applicant is resident outside of Australia and has no assets within Australia is a significant circumstance militating in favour of an order for the provision of security for costs, but is not of itself a sufficient basis for an order that security be provided. It is necessary to consider all of the circumstances.

299    Nevertheless, on this application, the principal matter in issue was as to whether MWP had assets in Australia.

300    For completeness, I note that I have considered:

(1)    the strength of MWP’s case. I am not satisfied that MWP’s case is of such sufficient strength or weakness that I should do more than assume that it is brought bona fide and has reasonable prospects of success: see KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189 at 197C (Beazley J); Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564 at 574 ([37] to [38]) (Austin J); and

(2)    the absence of any suggestion that the proceeding would be stultified if MWP were required to provide security for the respondents’ costs. As noted earlier, MWP appears to be in a strong financial position.

301    I am satisfied that MWP should provide security for the respondents’ costs particularly as:

(1)    it is a British Virgin Islands entity with no assets in Australia. Thus, if the respondents succeed in the proceeding and obtain an order for costs in their favour, there will be no fund in Australia against which they can enforce that costs order. As noted above, this is a significant factor that militates toward an order for the provision of security; and

(2)    the absence of factors weighing against the making of an order for the provision of security for costs.

302    I turn now to the question of the quantum of costs to be secured by such an order.

303    Ms Farmer’s evidence is that:

(1)    between the commencement of the proceeding and the filing of Ms Farmer’s 23 February 2024 affidavit, the respondents had incurred costs and disbursements in this proceeding of $128,648.12 with unbilled work in progress recorded as $45,496.00; and

(2)    she estimates the respondents’ future costs and disbursements to be in the order of $167,975.00.

304    The total of these amounts is $342,119.12. The respondents seek an amount of security in the order of 70 per cent of that amount, namely $239,500.

305    Mr Wilson, in his first affidavit, takes issue with Ms Farmer’s figures, complaining about the absence of proof of past costs and work in progress, and the absence of supporting documents for the estimate of future costs.

306    Mr Wilson’s complaints are without substance. Ms Farmer’s evidence is in a form regularly presented on such applications, and (correctly) no such points were taken by Mr Burton. Nor was any application made to cross-examine Ms Farmer.

307    Similarly, Mr Wilson’s comments concerning costs incurred in proceeding NSD767/2020, which Ms Farmer referred to but did not deploy in this application; and Mr Wilson’s complaint that Ms Farmer included only an estimate of costs for junior counsel (Ms Bailey) but not senior counsel (Mr Golledge) are without merit.

308    Mr Wilson’s evidence in this part of his first affidavit also contained several scandalous comments, which it is not necessary to repeat.

309    Mr Wilson also included as part of his second affidavit on this application some “comments and input” from Blackstone Legal Costs which I have found to be of little to no assistance in circumstances where: (1) the instructions provided to that firm have not been adduced; (2) the views expressed contain caveats such as “Please note that this is an estimate which is subject to change upon further information and materials received from [the respondents’ solicitor]” and “as we are not intimately involved in the matter, we will be guided by your observations and comments as to the future costs and disbursements”; and (3) it is not clear whether the “comments and input” extracted are representative of all of the views of Blackstone Legal Costs on these issues.

310    Taking a necessarily broad-brush approach, I am satisfied that the quantum of the security for costs order should be $225,000.

311    I will also make an order that the proceeding be stayed if the security is not provided within 21 days. I am not minded at this stage to order that the proceeding be dismissed if the security is not provided. As before, if the security is not provided within the time specified, then the respondents may make an application for dismissal, which can be considered by reference to the circumstances which then exist, including any explanation for such default.

312    As security for costs is to be provided pursuant to s 56 of the FCA Act, it is unnecessary to decide whether an order for such security should be provided under s 37AO(2) of that Act.

F.    CONCLUSION

313    For the reasons set out above, I will make orders to the following effect:

(1)    MWP’s present solicitor, Mr Michael Wilson be restrained from representing MWP: (a) in this proceeding; and (b) in any future proceeding against Mr Porter and Mr Moretti concerning the bankrupt estate of Mr David Slater, without the prior leave of the Court;

(2)    MWP within 21 days: (a) pay costs previously ordered by this Court and the High Court of Australia; (b) provide security for the respondents’ costs of this proceeding, with the present proceeding stayed until such payments have been made; and

(3)    the interlocutory application otherwise be dismissed.

314    The respondents have been the overwhelmingly successful parties on this application. There is no reason why costs should not follow the event. Absent any contrary agreement between the parties, such costs should be assessed by a Registrar acting as a referee. I will make orders accordingly.

G.    POSTSCRIPT

315    After my Associate notified the parties by email of the time that these reasons for judgment would be delivered, Mr Wilson responded:

Thank you for your email enclosed, we also enclose for HH’s attention:

1)    the amended pleading (RAPOC) filed and served by MWP with the permission of the EWHC as against Mr Emmott given its rights qua Sinclair;

2)    the list of the now ≥590 judgments, rulings and orders in favour of MWP not only in Australia, but also in all other jurisdictions as a result of which there is no doubt that MWP is the very clear overall winner, including as the owner and controller since 2015 of the Temujin Partnership and all rights of Sinclair, Nicholls, Slater, TIL, TTT, TSL so that MWP is owed ≥US$150m to date of final and binding judgment debts;

3)    the Net Balance Between the Parties which will be adjudicated upon in final hearings before HHJ Pelling KC in the Commercial Court of the EWHC on 12-14.01.26 as to MWP’s Part 7 Claim and Declaration Application as to the enormous judgment debts and debts owed by Mr Emmott to MWP for decades and where there is no doubt he is and has long been a judgment debtor and debtor of MWP, as the clear overall winner, including given MWP stands in the shoes of and owns all of the rights and acts qua all of Nicholls, Slater, Sinclair, TIL, TTT and TSL and owns 67% of the Temujin Partnership and has controlled the Temujin Partnership throughout.

Of course and as MWP has pleaded, Messrs Cronan, Van De Velde, Porter and Moretti have never done anything to gather in and realise all of the ≥US$67m of assets of the Temujin Partnership in Australia, in material and ongoing breach of their fiduciary, contractual and statutory duties, including to MWP and the UK Trustees.  

316    This email has not been taken into account in the above reasons. Nor should it have been sent for the reasons set out above.

Associate:

Dated:    16 December 2025

SCHEDULE OF PARTIES