Ruling takes issue with email and physical address listed in creditor's petition
In recent bankruptcy proceedings, the Federal Court directed the retention of a lawyer in Australia as the lawyer on record, with an Australian address that could receive emails and accept service of documents, as soon as possible.
In Michael Wilson & Partners, Ltd v Emmott, [2025] FCA 1005, the applicant MWP was a law firm based primarily in Kazakhstan. Mr Wilson fell out with fellow lawyers at the firm, including the respondent in the present proceedings.
This disagreement resulted in numerous proceedings in Australia and beyond, including 80 judgments in cases MWP commenced against the respondent. The present proceedings arose from a bankruptcy notice MWP issued to the respondent in July 2024.
In October 2024, MWP filed a creditor’s petition against the respondent on its own behalf and as trustee, among other capacities. The petition, signed by Mr Wilson, identified:
Though based in Kazakhstan, Mr Wilson was a solicitor with a current Australian practising certificate. He appeared on MWP’s behalf at all case management hearings.
As requested by the respondent, the Federal Court of Australia ordered MWP to retain an Australian lawyer with an Australian address that could receive emails and service of documents. The court asked MWP to refrain from taking further steps in the proceedings until then.
The court noted that the current situation has led to practical challenges and unsatisfactory results. The court deemed the respondent’s requested order appropriate for the following reasons.
First, the court decided that the requested order aligned with a requirement in r 11.01 of the Federal Court Rules 2011 (Cth) (Federal Court Rules).
The court called the current approach – with MWP listing Mr Wilson as its lawyer, but identifying a legal document management company’s address as the physical address for service – impermissible. The court explained that the company’s address was not the lawyer's address as defined in r 11.01(2).
Second, the court ruled that Mr Wilson had an interest and involvement in and an attachment to the parties’ underlying dispute, which prevented him from advising MWP independently and impartially.
The court determined that the respondent’s requested order, which required another legal practitioner’s nomination as the lawyer on record:
Third, the court called the current manner of conducting court matters or communicating with the court’s chambers inappropriate and inconsistent with ss 37M and 37N of the Federal Court of Australia Act 1976. The decision noted that any officer of the court should not engage in such conduct.
Fourth, the court found it unacceptable that the respondent’s solicitor could not email MWP’s legal representative or deliver physical or electronic documents to a lawyer or law firm’s Australian address – instead of a legal document management company’s address – to prepare for the hearing, serve evidence and submissions, respond to documentary requests, and finalise the court book.
