The multiple McHughs
The New South Wales Court of Appeal has dismissed a complex series of appeals in respect of a partnership dispute with a history of litigation nearing almost twenty years.
The plaintiff is a law firm registered in the British Virgin Islands with offices in Azerbaijan and Kazakhstan. Michael Wilson is a solicitor who resides in Kazakhstan and is also entitled to practise in New South Wales.
He is a former partner of Baker & McKenzie.
Except for a recusal claim with respect to McHugh JA in an earlier hearing, Michael Wilson & Partners Ltd was without counsel and represented by Wilson himself in the Court of Appeal.
John Forster Emmott is a former director of Michael Wilson & Partners, who was alleged to have diverted business from the firm into a separate partnership in 2006.
Among other lawsuits launched in other jurisdictions, MWP first commenced proceedings in the New South Wales Supreme Court in 2016 to trace the proceeds of the alleged deceit.
A hearing date was set for August 18, 2024, to the opposition of MWP. Various attempts at vacating the hearing were dismissed as “without merit and spurious”, including an attempt to claim that he had lost his voice, despite having contemporaneously spoken to the court via telephone.
The court inferred that MWP sought to obtain forensic advantage by extending the dispute to prosecute related bankruptcy proceedings against Emmott.
The court also dismissed the outstanding $US70 million partnership claim against Emmott.
MWP then sought leave to appeal various refusals to grant an adjournment. Emmott sought security for costs, which was ordered by John Basten AJA at $15,000.
Emmott also filed a separate motion seeking security for costs at $20,000 in a related dispute about registered foreign judgments. Richard McHugh JA ordered that security be paid in respect of that dispute, with MWP filing applications to review these orders.
In the Court of Appeal, MWP applied to vacate its own applications for review of the security for costs orders made by Basten and McHugh, claiming that the imminent delivery of judgment in a hearing in London would be beneficial to its case.
The Court of Appeal held that even if successful, the English decision would have no material impact on the strength of the applications to review the orders for security.
The court felt that the time spent litigating the “modest” security amounts was grossly disproportionate to the value of the issues at hand.
MWP also claimed that McHugh ought to have recused himself in the security decision, having previously acted for MWP as counsel, and because McHugh father, Michael McHugh, had previously acted as a mediator for MWP, and that McHugh JA’s wife, Kate Morgan SC, had been briefed in a matter adverse to MWP.
On review of the transcript of the proceedings with Richard McHugh, it was revealed that Wilson advised that he would not press an application for recusal.
The court held that this ground of appeal was therefore “demonstrably baseless” given that, despite the serious nature of a recusal application, no complaint was made at the hearing.
After dismissing all grounds of appeal, the court (Mark Leeming, Anna Mitchelmore, and Stephen Free) noted that forty-six separate grounds of appeal were advanced in relation to the two modest costs orders, and that Wilson’s submissions fell short of what was expected of a competent legal practitioner, and that Wilson “seems unable to write directly when a more prolix alternative is available”.
The CA also felt that he was in breach of the prohibition against practitioners acting as both witness and advocate and directed Wilson to provide it with reasons as to why his conduct in the matter should not be referred to the Legal Services Commissioner.
Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Dr Meek’s prescription
Justice Michael Meek of the New South Wales Supreme Court vacated the hearing dates for a long-running family provisions dispute after counsel for the plaintiff contracted respiratory syncytial virus less than two business days before hearings were set to commence.
Barrister Andrew Martin was involved in the matter from the start, and was acting for his client on a conditional fee basis.
Appearing remotely, he submitted that due to his illness he was medically unfit to discharge his duties to the court and to his client.
He also submitted that he remains his client’s “counsel of choice”, and due to the sudden contraction of the illness it was impossible for him to find another counsel at such short notice.
Daniel Yazdani of the defence and also of 13 St James Hall, said he had instructions to “strenuously oppose” the application. He submitted that some attempt should have been made to brief an alternative counsel.
He also argued that Martin’s ability to appear remotely for the application to vacate the hearing suggested he could proceed in the full hearing through AVL.
Martin’s application was upheld, with HH finding that “illness is one of the exigencies of life that is out of control of the parties” and noting that there had been no delay in Martin informing the court that he is unwell.
“Stoicism might in some quarters be an expected or commendable quality. However, the court does not require counsel to be especially stoic nor necessarily ‘soldier on’ if they have reached a considered and informed assessment that they are unable to effectively prepare and conduct a hearing.”
Meek J was critical of the defence/respondents suggestion that counsel should simply soldier on in the face of illness, and ruled that it was not realistic to expect alternate counsel to be briefed and ready within a single business day.
The hearing dates were vacated, with the judge finding that the risk of injustice to the plaintiff outweighed the defendant’s concerns about delay and prejudice. The costs of and incidental to the vacation application were ordered to be the defendants costs in the cause.
Wilkinson v Bonnici [2025] NSWSC 724