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A law firm founder and solicitor, who pressed ahead with a “baseless” recusal case against an NSW judge, was ordered to explain why he should not be referred to a legal disciplinary board.
Justices Mark Leeming, Anna Mitchelmore and Stephen Free of the NSW Court of Appeal gave Michael Wilson two weeks to show cause as to why his conduct should not be referred to the state’s Legal Services Commissioner for potential disciplinary action.
Wilson had asked the court to review a recusal application he claimed to have made before Justice Richard McHugh, despite strong evidence the application was never made in the first place.
A barrister was also invited to explain his role in the conduct.
“There are occasions when this court must consider taking the serious step of referring papers to the professional regulator, lest legal practitioners cause harm to their own clients, to other litigants, to the courts, and to the public confidence in the legal profession.
“We would not take that step lightly, nor would we do so without first permitting Wilson to be heard in relation to that course,” Justices Leeming, Mitchelmore and Free said in their written reasons.
Wilson’s firm, Michael Wilson & Partners, has been embroiled in a lengthy legal battle with former director and shareholder, John Forster Emmott, over an alleged plot to form a new partnership.
The contentious fight has extended across multiple jurisdictions for just under two decades, and it recently culminated in two orders for the firm to pay a total of $35,000 in security for costs. Applications for review were dismissed by the Court of Appeal’s bench.
In a ground before the Court of Appeal, Wilson alleged Justice McHugh “should have but failed to recuse himself” because he had been a mediator for Michael Wilson & Partners and because of his wife’s involvement in a matter with the NSW Law Society.
Before the transcript was provided to the Court of Appeal, Justice Leeming cautioned Wilson about making “a very serious” application.
When the transcript was obtained, it indicated Justice McHugh had brought Wilson’s attention to his wife’s involvement but assured him it would not cross over. After a short adjournment, Wilson told Justice McHugh he did not wish to make an application for recusal.
Despite the transcript having been produced, Michael Wilson & Partners filed submissions in the Court of Appeal that “simply reiterated” that Justice McHugh should have recused himself.
Justices Leeming, Mitchelmore and Free said the complaint against Justice McHugh was “demonstrably baseless” and it was clear it could not be “sensibly maintained after the transcript” was obtained.
“Wilson acknowledged that it was a very serious allegation. Yet despite not making any recusal application at the hearing before Justice McHugh, he raised it as a ground of review before this court and maintained it despite the transcript having been provided,” they said.
The submissions were not signed but did include a barrister’s email signature. It was not clear what “precise role” the barrister played, but he has been invited to make submissions to the court.
The Court of Appeal bench said the complaint about Justice McHugh was not the only aspect of Wilson’s conduct as a solicitor that stuck them as both “unsatisfactory and concerning”.
“Although Wilson claimed to be familiar with the prohibition upon a legal practitioner being simultaneously a witness and an advocate, his conduct of the present applications on behalf of Michael Wilson & Partners demonstrated at best that he did not understand the rule and at worst he flagrantly breached it,” the court said.
“Wilson also has no understanding of the obligation only to provide submissions to judicial staff after judgment has been reserved in accordance with leave.”
The case: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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