Rather than deterring the Court of Appeal from making a referral to the NSW Legal Services Commissioner, a solicitor’s affidavit confirmed that his fitness to practise in the state should be investigated.
Michael Earl Wilson, founder of Michael Wilson & Partners, was referred to the Legal Services Commissioner for conduct that included his relentless pursuit of a “groundless” application to review a judge’s orders on the basis of apprehended bias.
In July, Wilson was invited to show cause as to why he should not be referred, but the affidavit he supplied instead only served to prove it was appropriate that material be forwarded to the commissioner.
“The affidavit has served the useful purpose of confirming in our minds that the papers and this court’s judgments should be referred to the Legal Services Commissioner to investigate whether Michael Earl Wilson should continue to be permitted to act as a legal practitioner in this jurisdiction,” the Court of Appeal determined.
Wilson has been involved in a lengthy dispute with former colleague and director John Forster Emmott, which has spanned multiple Australian jurisdictions and overseas courts. The Federal Court recently ordered that Wilson obtain an Australian lawyer.
In the July judgment, Wilson had asked Justices Mark Leeming, Anna Mitchelmore, and Stephen Free to review Justice Richard McHugh’s refusal to recuse himself because of his wife’s connection to a matter that concerned the NSW Law Society.
Despite cautions from the appeal bench and a transcript that indicated Wilson had told Justice McHugh he would drop the recusal application, Wilson pressed forward with the review request.
In the affidavit produced in response to the show cause order, Wilson said there was “no basis whatsoever” for the referral and again claimed Justice McHugh was “duty bound in law to recuse himself”.
“Instead, McHugh JA wrongly determined he could proceed regardless of his very clear conflicts of interest, firstly at home in discussions over the kitchen table with his wife, second when appearing on the bench announcing his decision, and then by rejecting and dismissing and refusing to properly analyse, understand, entertain and consider all of the points,” Wilson alleged.
Wilson added that Justice McHugh allegedly made a “pre-determined decision from which he simply would not be swayed”.
Nowhere in the affidavit was there a mention of the fact that Wilson had withdrawn the recusal application before Justice McHugh.
“[The paragraphs] maintain that others [notably Emmott and Justice McHugh] have not behaved as they should have. They disclose no insight into the point which led to referral being raised in the first place, namely, his complaint that Justice McHugh had refused to disqualify himself when no such application had been made to him.
“The affidavit also includes a statement that the court should be aware that MWP will exercise its right of appeal, which it has previously done with success,” the bench said.
“Whether or not MWP or Wilson exercises such rights as it and he has to seek special leave to appeal does not alter this court’s obligation to take steps directed to protecting the public.”
The affidavit also concluded with an “informal application” that the hearing be reconvened and reopened, and the judgment rescinded. Justices Leeming, Mitchelmore, and Free rejected this.
The bench was further satisfied of the decision to refer Wilson because of his conduct towards an application for security for costs.
This included emails that accused Emmott’s legal representation of serious misconduct, including an allegation they have “consistently lied to and misled the court below, and also the NSWCA”, and demanding an apology for filing “knowingly false evidence”.
Justices Leeming, Mitchelmore, and Free said neither of them “has ever encountered such correspondence from a NSW solicitor to another NSW solicitor, written in such terms”. The emails were in breach of a “basic element” of Wilson’s professional obligations.
There were also emails written to a registrar, including one that referred to “your most regrettable and unfortunate adoption of entirely inappropriate and unworkable orders”.
While the reality is judges, registrars and officers of the court will deal with unrepresented litigants who send “rude or abusive communications”, Justices Leeming, Mitchelmore, and Free said they should be entitled to civil communications from the profession.
“We cannot think of circumstances when it could be appropriate for a solicitor to have occasion to send emails to a registrar of this court accusing him of impropriety,” the bench said.
The case: Michael Wilson & Partners v Emmott (No 5) [2025] NSWCA 206.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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