de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard

[2024] NSWCA 298

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 298

Hearing dates:

27 November, 12 December 2024

Date of orders:

12 December 2024

Decision date:

13 December 2024

Before:

Gleeson JA

Decision:

The recusal application be dismissed.

Catchwords:

COURTS AND JUDGES — Application for recusal — Whether apprehended bias — Claim of lack of independence — Based on association with family member or other judges of Supreme Court — Claim of prejudgment — Based on conduct during the hearing — Recusal application made 10 weeks after judgment reserved and after notice of listing for judgment — Whether waiver of any right to object

Legislation Cited:

Legal Profession Amendment Act 2004 (NSW)

Legal Profession Act 1987 (NSW), ss 38FC(2), 167AA

Legal Profession Uniform Law (NSW) s 23(1)(c)

Practice Note SC Gen 22

Supreme Court Act 1970 (NSW), ss 46(4), 121(3)

Cases Cited:

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 87; [1990] HCA 31

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48

New South Wales Bar Association v de Robillard [2004] NSWADT 45

Polson v Harrison [2021] NSWCA 23

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419

Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category:

Procedural rulings

Parties:

Christian Roger de Robillard (Applicant)
Council of the New South Wales Bar Association (Respondent)

Representation:

Counsel:
C R de Robillard (Self-represented) (Applicant)
A Poukchanski (Respondent)

Solicitors:
Hicksons Lawyers (Respondent)

File Number(s):

2023/208817; 2023/293223

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Civil

Citation:

[2021] NSWCATOD 207; [2023] NSWCATOD 75

Date of Decision:

10 December 2021; 1 June 2023

Before:

Le Poer Trench ADCJ, H Dixon SC, L Porter

File Number(s):

2020/320791

Judgment

1. GLEESON JA: On 9, 10 and 11 September 2024, the Court, constituted by Leeming JA, Griffiths AJA and me, heard concurrently three matters: an appeal, a notice of motion in the appeal proceedings for review of certain orders of the Registrar, and a summons seeking a removal order against Mr Christian Roger de Robillard under s 23(1)(c) of the Legal Profession Uniform Law (NSW) (the Uniform Law). At the conclusion of the hearing, the Court reserved its judgment in those matters.

Recusal application

2. On 26 November 2024, ten weeks after judgment was reserved and the day prior to the date the proceedings had been listed for delivery of judgment, the Court received an email at 3:39 pm from Mr de Robillard attaching an “urgent application” seeking leave to reopen the proceedings to make an application that I recuse myself on the ground of apprehension of bias. The parties were notified that the Court would deal with that application at 10:00 am on 27 November 2024.

3. At the hearing on 27 November 2024, Mr de Robillard made some oral submissions in addition to his written submissions of five pages and sought a further 7 days in which to file further written submissions. That request was granted, and directions were made for that to occur, including any response by the Bar Council. The recusal application was stood over for hearing on 12 December 2024 and the Court vacated the listing of the proceedings that day for the delivery of judgment. The Court received further written submissions from Mr de Robillard of 3 pages; pars 1 to 12 of those submissions addressed matters outside the grant of leave to make the reopening application; these paragraphs sought to reargue aspects of the appeal and the removal application. Mr de Robillard supplemented his written submissions (initial and supplementary) by a further document of 13 pages which was provided to the Court at the commencement of the hearing on 12 December 2024. He also addressed the Court orally for 1.5 hours and tendered some documents.

4. The assertion of apprehended bias is on the grounds that (1) my association with a family member who was previously a member of the Bar Council, and my association with other judges of the Supreme Court both demonstrated a lack of independence, and (2) my conduct during the hearing demonstrated prejudgment.

5. At the conclusion of oral argument, I declined the recusal request, and made an order dismissing that application. Mr de Robillard was given the opportunity to renew his application to the Court as a whole but chose not to. Leeming JA and Griffiths AJA were both present on the bench when the recusal application was made and determined by me. I reserved my reasons until 9:30 am on 13 December 2024. These are my reasons for dismissing the recusal application.

Apprehended bias

6. As is well-established, the test to be applied on an application for recusal on the basis of apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

7. The application of the “double might” test requires two steps: first, the identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits: Ebner at [8], Michael Wilson& Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [32]-[33].

8. Only then can the reasonableness of the asserted apprehension of bias be assessed. This is sometimes referred to as the third step: Ebner at [8]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]; CNY17v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J).

Association

9. The category of disqualification by association was described by Deane J in Webb v The Queen (1994) 181 CLR 41 at 73; [1994] HCA 30 as overlapping with disqualification by interest, and consists of:

… cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. 

10. As a judge I have no interest in the litigation, nor an interest in a party to it. Nor is my brother, Justin Gleeson SC, a former member of the Bar Council in 1993, 2000-2002 (up until 14 November 2002), 2007, 2008 (up until 11 April 2008) and 2012 (and not 2002 to 2022 as submitted by Mr de Robillard), a party, or a legal representative for a party, or a person with an interest in the litigation. He was not a member of the Bar Council in 2017 when the relevant complaint against Mr de Robillard was referred by the NSW Legal Services Commissioner to the NSW Bar Association. Nor was he a member of the Bar Council between 2016 and 2018 when it made prior adverse findings against Mr de Robillard in respect of other complaints, which findings were taken into account by the Tribunal when making its recommendation in the disciplinary proceedings.

11. Insofar as my brother was a member of the Bar Council in 2002 when the Bar Council (i) resolved on 28 February 2002 that an indefinite suspension of Mr de Robillard’s practising certificate would follow on 6 March 2002, (ii) placed certain conditions on Mr de Robillard’s practising certificate on 15 August 2002, and (iii) made complaints against Mr de Robillard in regard to practising without a practising certificate, and resolved on 24 October 2002 to institute disciplinary proceedings, the Tribunal did not rely on these matters in its Stage 2 reasons in making its recommendation, nor did the Bar Council rely on these matters on its removal application.

12. Further, that Mr de Robillard made a complaint to the Legal Services Commissioner in 2004 against 10 members of the Bar Council in 2001 and 2002 (including my brother) who, it is said, caused a notice under s 38FC(2) of the Legal Profession Act 1987 (NSW) dated 23 November 2001 to be issued against him, and resolved to suspend his practising certificate on 28 February 2002, is not sufficient to justify recusal. The documents relating to this matter were not in evidence on the appeal. Nor was it suggested that I was aware of this complaint by Mr de Robillard to the Commissioner in 2004, prior to it being raised by him during the recusal application on 12 December 2024.

13. The fair-minded lay observer is to be credited with a broad knowledge of the material objective facts and the actual circumstances of the case: Webb v The Queen at 73; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; [1990] HCA 31. In this case, that knowledge includes:

1. the subject matter of the proceedings in this Court concern an appeal by Mr de Robillard challenging the Tribunal’s findings and recommendation in disciplinary proceedings commenced by the Bar Council in 2020, and the Bar Council’s removal application under s 23(1)(c) of the Uniform Law based on the Tribunal’s recommendation;

2. earlier disciplinary proceedings commenced by the Bar Council against Mr de Robillard in 2003 were dismissed by the Administrative Decisions Tribunal in 2004 as being out of time (New South Wales Bar Association v de Robillard [2004] NSWADT 45); and

3. the earlier disciplinary proceedings did not result in any adverse finding against Mr de Robillard; nor were the complaints the subject of those proceedings taken into account by the Tribunal in making its recommendation in 2023, which is the basis of the Bar Council’s summons for a removal order.

14. That my brother is a former member of the Bar Council is not sufficient to justify recusal. Nor is it material to an apprehension of bias that Mr de Robillard submitted that my brother declined to engage with him when he sought to speak with my brother at a conference held in Sydney in November 2020. Nor was it suggested that I was privy to or had knowledge of any such private exchange, prior to it being raised on the recusal application. Mr de Robillard did not give evidence of or refer to this matter on the appeal.

15. The argument based on association – a close family relationship with a person who was previously a member of the Bar Council, but not a member of the Bar Council at any time relevant to the present disciplinary proceedings – failed to identify what it is said might lead me to decide the case other than on its legal and factual merits.

16. The argument also failed to articulate the logical connection between the matters complained of and the feared deviation by me from the course of deciding on its merits the proceedings in this Court. There is no basis to think that a fair-minded lay observer might hold any reasonable apprehension that I might decide a question other than on the merits of that question.

17. Next, it is said that other past and present members of the Bar Council include current and past judges of the Supreme Court, relevantly, the former Chief Justice Bathurst KC, the current Chief Justice (Bell CJ), as well as Harrison CJ at CL and Slattery J. None of those judges or the former Chief Justice is a “present” member of the Bar Council, as suggested by that submission. It is asserted that the latter two judges have been “subject of adverse mention in the uncontradicted evidence before the Court”. It is also asserted that Slattery J, Harrison CJ at CL and Ward P have demonstrated personal animosity towards Mr de Robillard.

18. The fact that a judge is a professional colleague of other judges who have had anything to do with a particular litigant, whether in the course of these or other proceedings, or when previously a member of the Bar Council is not sufficient to justify recusal. The flaw in Mr de Robillard’s submission is that it assumes a relationship between a Chief Justice and a member of his or her court, and between judges of the Court themselves, which is contrary to the fundamental principles of judicial independence.

19. As explained in Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57 at [29]-[30] (Gleeson CJ and Gummow J), the independence of the judiciary includes independence of judges from one another. The Chief Justice does not have the capacity to direct, or even influence, judges of the court in the discharge of their judicial functions and responsibilities. Further, corresponding to the Chief Justice’s lack of capacity to control or influence my exercise of judicial power, there is a duty upon me to act independently, in accordance with my judicial oath: Re Colina at [30]. The same can be said of the lack of capacity of any other judge or former judge of the Court to influence my exercise of judicial power.

20. Again, the argument based on association – that I am a colleague of the Chief Justice, and other judges or former judges of the Supreme Court – failed to identify what it is said might lead me to decide the case other than on its legal and factual merits. It also failed to articulate the logical connection between my association as a professional colleague of other judges or former judges of the Supreme Court and the feared deviation by me from the course of deciding on its merits the proceedings in this Court.

21. There is no ground for any reasonable apprehension that I might not bring a fair and unprejudiced mind to the performance of the judicial task in dealing with the matters involving Mr de Robillard.

Prejudgment

22. The conduct relied upon as demonstrating prejudgment involves my conduct in the course of the hearing on 9, 10 and 11 September 2024. It falls into four broad categories: (1) the order in which the Court dealt with the matters at the concurrent hearing; (2) that arguments which Mr de Robillard sought to advance were shut down, and that I prevented certain “matters being fully aired during the proceedings”; (3) that I held preliminary views as to Mr de Robillard’s character, and (4) other complaints.

Order of argument on the concurrent hearing

23. As indicated, the fair-minded lay observer is to be credited with knowledge of the actual circumstances of the case, which included:

1. on 12 April 2024 Ward P dealt with Mr de Robillard’s motion filed on 27 February 2024 which sought a preliminary determination of several issues relating to the “legal capacity” issue, being the Bar Council’s standing to bring the proceedings in the Tribunal and to defend the appeal. Ward P rejected that application. The transcript of the 12 April hearing records that her Honour concluded that the just, quick and cheap resolution of the real issues in dispute warranted listing the motion, the appeal and the summons together for a concurrent hearing (AT 12/4/24, 39.7-17). Her Honour made a direction that the proceedings be listed for a concurrent hearing. Mr de Robillard did not apply to set aside that decision by way of an application to review that decision pursuant to s 46(4) of the Supreme Court Act 1970 (NSW);

2. at the commencement of the hearing on 9 September 2024, after senior counsel for the Bar Council suggested a “possible route” for dealing with the three matters listed for hearing (AT 2.10-14), I enquired of counsel whether she was ready to address the summons if the Court did not form a final view on the notice of motion or the appeal. Counsel indicated that she was (AT 2.37). I then indicated the Court’s preference that the parties first address the appeal, including the notice of motion to set aside the Registrar’s order dismissing the appeal, and then the Bar Council’s summons for a removal order (AT 2.44-3.11). I explained to Mr de Robillard, as a self-represented litigant, the proposed order of oral addresses and right of reply in the appeal, notice of motion and the summons for a removal order and invited his response;

3. Mr de Robillard submitted that the Bar Council should first proceed on its summons before he addressed his appeal because the summons did not state what statutory provision or other principles it relied upon. That submission overlooked that the Bar Council’s written submissions identified reliance upon the Court’s power to make a removal order under s 23(1)(c) of the Uniform Law (based on the Tribunal’s recommendation) or in its inherent jurisdiction; and

4. I informed the parties that this was not the Court’s preference and indicated that the Court would first hear oral argument on the appeal, including the notice of motion, and then on the Bar Council’s summons (AT 4.16-20).

24. The concurrent hearing proceeded accordingly. There is no basis to think that because I did not accede to Mr de Robillard’s preference for dealing with the three matters in a different order, that a fair-minded lay observer might hold any apprehension that I might not bring an impartial mind to the matters for decision. The issues raised by Mr de Robillard’s appeal and the notice of motion were plainly anterior to the summons seeking a removal order. To the extent that Mr de Robillard maintained his preference for a preliminary determination of the Bar Council’s standing, that request had been refused on 12 April 2024 and no s 46(4) application had been made to set aside that decision of Ward P.

Restriction of argument

25. It is submitted that I “shut down” arguments by Mr de Robillard concerning (i) the “scheme” of the Uniform Law legislation, (ii) the Bar Council’s conduct in February 2003 in improperly suspending Mr de Robillard’s practising certificate, (iii) the 2004 decision of the Tribunal referred to at [13(2)] above, and (iv) the validity of the Bar Council’s application filed 10 November 2020 and the amended application filed 10 September 2021.

26. As to (i), reference was made to the exchange extracted below on the first day of the hearing; this followed Mr de Robillard’s acceptance as a general proposition that the Bar Council has authority to bring disciplinary proceedings against a legal practitioner, but according to the submission “in the circumstances of this case, that was lacking” (AT 12.27-30):

GLEESON JA: ‑‑you can assume we have a general understanding of the scheme of the Act. In particular, tell us what you are seeking to advance, and you should take us to the provisions. Otherwise, what we would like, at least at the moment, is the argument you identify in the outline. Sketch it out. What are the facts and circumstances you say that took away the power of the Bar Council to bring this proceeding in this case?

DE ROBILLARD: Yes. Right.

GLEESON JA: I am not saying there is no facts and circumstances. I want to understand what you say.

DE ROBILLARD: No. I'm grateful. (AT 13.7-19)

27. My question of Mr de Robillard was an open one. It sought an understanding of the “facts and circumstances” underlying the asserted lack of standing of the Bar Council to bring disciplinary proceedings against him. Mr de Robillard gave an uninterrupted response recorded in the following 32 lines of transcript, before Griffiths AJA asked him to identify a particular document (AT 14.5). Mr de Robillard went on to make submissions on what he described as the “major premise” of the legislation (see AT 68.31-42, 141.1-25). It is not the case that Mr de Robillard was prevented from advancing his argument as to the “scheme” of the 2014 legislation.

27. As to (ii), it is submitted that I had formed the view before the commencement of the hearing that “it would not serve the best interests of the administration of justice to allow the public to be informed of the unchallenged matters, facts and circumstances to which [Mr de Robillard] alluded [to] over the last (20 years)”. No transcript reference was provided. This submission seems to be directed to the cancellation or suspension or placing of certain conditions on Mr de Robillard’s practising certificate by the Bar Council for a period in 2002, and again in 2003. It is also submitted that I refused to accept that a member of the Bar Council could have acted improperly. No transcript reference was provided.

28. The transcript does record that when Mr de Robillard raised the matter of suspension of his practising certificate in 2002, I asked him whether the Tribunal had taken the 2002 suspension into account in making its recommendation. He responded that he was “not sure” (AT 183.35-49). The following five pages of transcript record my questions of Mr de Robillard directed to seeking clarification of this submission, and a related submission concerning the 2003 suspension, including the relevance of these matters to the Tribunal’s recommendation and Mr de Robillard’s current fitness to practice (AT 184-188). Mr de Robillard was not prevented from advancing his submissions on this point.

29. As to (iii), Mr de Robillard was not prevented from making submissions concerning the 2004 Tribunal decision and the circumstances of the legislative amendments in 2004 (by the Legal Profession Amendment Act 2004 (NSW) which introduced s 167AA to the Legal Profession Act 1987 (NSW)) permitting disciplinary proceedings to be commenced within 6 months after the Council or Commissioner decides to institute proceedings in the Tribunal. The transcript records those submissions over a number of pages: see AT 25.20-38,71.41-72.16.

30. Mr de Robillard also submitted that in relation to the outcome of separate Supreme Court proceedings in 2004 before Kirby J, in which he challenged the cancellation of his practising certificate, I asked him during the appeal in an “aggressive” tone and as a “put down”, “Did you win?” That is incorrect. The transcript records the following exchange in which I sought clarification of the matter he had raised, as there was no evidence on the appeal of this separate proceeding or its outcome (AT 209.21-25):

GLEESON JA:   And I assume you were successful, were you?

DE ROBILLARD:   Well, I was successful in – well, if you look – if one looks at the judgment or orders made, it said the application was dismissed, but – no, but, your Honour, I need to explain. So basically what I …

32. As to (iv), reference was made to the transcript of the third day of hearing when Mr de Robillard was addressing the Court on the removal application (AT 192). The transcript records that Mr de Robillard made submissions concerning the asserted invalidity of the Bar Council’s application filed on 10 November 2020, because it did not refer to the statutory provision relied upon by the Bar Council, and the amended application dated 10 September 2021 which he said was not filed or served on him. (see AT 76.8-77.11; AT 191.44-192.47). He was not cut short or prevented from making his points.

Preliminary views as to Mr de Robillard’s character

33. It is submitted that the evidence is that I held preliminary views as to Mr de Robillard’s character, which I “set out to demonstrate during the course of the hearing”. No transcript references were provided as to any such “evidence”, nor the asserted “preliminary views” attributed to me by this submission. The premise of this submission is flawed.

Other complaints

34. It is submitted that I “did [my] best to prevent the following matters to be fully aired during the proceedings”:

1. the fact that the public purse may be paying for the substantial costs of the 3 proceedings not only in Tribunal and Court resources but in meeting the fees being charged by senior and junior counsel as well as a team of at least five (5) lawyers at Hicksons Lawyers;

2. the refusal of the members of the Council to provide a copy of the Fees Agreement with Counsel and Hicksons Lawyers;

3. why the President of the NSW Bar Association should not be copied with correspondence exchanged between myself and Hicksons Lawyers in circumstances where there were obvious inadequacies in the manner in which the proceedings were being managed by Ms Morgan SC.

35. Again, no transcript references were provided. Nor was there any ground of appeal directed to these matters.

36. Further, as to (a), I asked several questions of Ms Morgan SC concerning the payment of costs and the Public Purpose Fund (AT 117. 36-120.11). As to (b), the issue of access to copies of the retainer was raised by Mr de Robillard before Ward P on 12 April 2024. Her Honour noted that if Mr de Robillard was seeking some form of preliminary discovery, then he should make such an application in the ordinary way (AT 12/4/24, 25.2-4). There was no mention by Mr de Robillard, at the concurrent hearing five months later, of any such application having been made.

37. As to (c), this seems to be a reference to order (1) made by the Registrar on 21 September 2023. No application was made by Mr de Robillard to set aside that order pursuant to s 121(3) of the Supreme Court Act. The notice of motion filed by Mr de Robillard on 27 February 2024 only sought to set aside order (2) made by the Registrar on 21 September 2023 that Mr de Robillard pay the Bar Council’s costs of that application (see Mr de Robillard’s affidavit sworn 27 February 2024 (par [10])).

38. It is submitted that the Bar Council was not asked to address “obvious issues” during the hearing as to (i) Mr de Robillard’s reasonable belief as to the allegations he made against Mr Wells in the 2016 proceedings, and (ii) the failure of senior counsel for the Bar Council to provide the Tribunal with the Ristovski affidavit until after Mr de Robillard referred to its existence in cross-examination. The flaw in this submission is that it misunderstands the nature of the adversarial system in which the party in the position of Mr de Robillard has the opportunity as the appellant to make oral submissions in-chief and in reply to the Bar Council’s submissions. Mr de Robillard made oral submissions on both those topics (as to (i) see AT 28.26-36.38, 37.15-19; as to (ii) see AT 26.33-27.33). Ms Morgan for the Bar Council responded in oral submissions to those matters (AT 84.50-86.12) In his reply submissions, Mr de Robillard argued that Ms Morgan had not addressed his submission concerning the Ristovski affidavit (AT 137-143). The fair-minded lay observer is to be credited with an understanding that the Court will determine the issues relevant to the appeal and the removal application in its judgment.

39. It is submitted that I condoned Ms Morgan SC’s asserted “reckless disregard for the pronunciation of [Mr de Robillard’s] name and “her pronunciation … replicated the references to ‘de Rob’ or ‘de Roba’ and similar, as shown in internal emails among employees of the NSW Bar Association around February 2023”. This is a reference to the complaint by Mr de Robillard at the end of the first day of the hearing about the mispronunciation of his name “during the three years plus that we have been dealing with this matter”. He said that “both [counsel for the Bar Council] and the tribunal have totally murdered my name, calling me de Robillard, like this, which is a total put down” (AT 90.3-.12).

40. Insofar as this complaint was directed to what occurred in the Tribunal, it was not a matter the subject of evidence or any ground of appeal, nor a matter upon which this Court could comment. Insofar as the complaint was directed to Ms Morgan’s conduct in this Court, it was not apparent to me that she had mispronounced Mr de Robillard’s name during the hearing, although I accept that Mr de Robillard may have apprehended otherwise. Insofar as I had mispronounced his name, I apologised to Mr de Robillard immediately when he made his complaint (AT 90.3-18). It is submitted that my response when this matter was raised seemed to consider Practice Note SC Gen 22 – Pronunciation of Names as a “petty irritant” and illustrated my personal feelings towards Mr de Robillard. That is neither the case, nor a fair reading of the transcript (AT 90). The fair-minded lay observer is to be credited with an understanding that unintended errors in pronunciation can and do occur despite the best efforts of the judge or the legal representatives in the proceedings.

41. It is submitted that at the commencement of the hearing on 9 September 2024 I “stared” at Mr de Robillard “intently” and with “some physicality”. According to Mr de Robillard’s submission, he “felt that [he] was at a championship ‘weigh in’ ceremony between boxers”. This description of Mr de Robillard’s apprehension is not consistent with my observations. Although Mr de Robillard was self-represented, he displayed the skills of an advocate consistent with his many years of experience as counsel. A fair-minded lay observer is to be credited with an appreciation that the Court approaches the matters before it with the degree of seriousness that all matters warrant, especially in a case like the present, given the potential consequences of the removal application for Mr de Robillard. Any intense expression on my part was merely a reflection of my concentration on the arguments being advanced by the parties.

42. It is submitted that I “frequently interjected” during Mr de Robillard’s submissions, subjected him to a “de facto cross-examination”, and “did not consider his position” which, it is said, was “much more difficult than the non-legally trained self-represented litigant”. No transcript references were provided. As observed in Polson v Harrison [2021] NSWCA 23 at [46] (Bell P, Basten JA and Simpson AJA) concerning the attributes of the fair-minded lay observer:

(xii)   interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge’s desire to understand the evidence and to advance the trial process [citing IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at [185]];

43. In this case, a fair-minded lay observer is to be credited with an understanding that the purpose of my questions of Mr de Robillard during oral argument was to better understand his submissions, given that many of the matters raised in oral argument had not been addressed in his written submissions nor were the subject of evidence.

44. Submissions were made that I seemed more concerned with protecting the reputation of the “establishment”, such as members of the Bar Council, than that of the administration of justice. No transcript references were provided. It also was submitted that my statements and conduct of the proceedings demonstrated that I was not prepared to consider the “very special and unprecedented nature of the proceedings and how the manner in which [Mr de Robillard] has been treated by members (current and former) of the Bar Council and some of [my] fellow judges could adversely impact public confidence in the administration of justice”. Again, no transcript references were provided. Insofar as these submissions were directed to my association as a professional colleague of other judges, they have been addressed at [17]-[20] above. Insofar as these submissions were directed to the subject matter of the appeal and the removal application, no comment is required, as judgment is reserved.

45. It is submitted that I “seem to have set out to further damage [Mr de Robillard’s] reputation as a barrister and public commentator because the truth of which [he has] spoken … or [his] numerous unchallenged statements about [his] personal experiences with agents of the Department of Foreign Affairs and Trade who have been surreptitiously acting contrary to the most basic principles of the Rule of Law and respect for our lesser near neighbours”. This seems to relate to events in 1997 when Mr de Robillard was arrested and imprisoned in Vanuatu for a short period of time for alleged contempt of court. No transcript references were provided. Although this topic was mentioned in his submissions at the concurrent hearing, it was not the subject of a ground of appeal. Again, no comment is required, as judgment has been reserved.

46. None of the above submissions are sufficient to justify recusal.

47. There is no basis to think that a fair-minded lay observer might hold any apprehension that I might not bring an impartial mind to the matters for decision. Unless it is clear that this undemanding test is satisfied, it would be wrong for a judge to recuse himself or herself. In these circumstances, I decline the recusal request.

Waiver

48. Given my conclusion, it is not necessary to decide whether the failure by Mr de Robillard to object at the commencement of or during the hearing or immediately following the conclusion of the hearing, constituted a waiver of any objection to my continuing to hear and determine the matter: Vakauta v Kelly (1989) 167 CLR 568 at 572; [1989] HCA 44. Nevertheless, for completeness, I will indicate my view.

49. It is well-established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of reasonable apprehension of bias. Thus, as said in Michael Wilson & Partners Limited v Nicholls at [76]:

If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.

50. As will be apparent from [2] above, Mr de Robillard did not object to my participation as a member of the Court until ten weeks after judgment had been reserved, and following notification given to the parties on 22 November 2024 that judgment would be delivered on 27 November 2024. The matters of association identified by Mr de Robillard in support of the recusal application were all known to Mr de Robillard prior to the commencement of the hearing. The matters concerning my conduct during the hearing, including the order in which the Court would receive oral submissions on the concurrent hearing, were known to him at the hearing.

51. One further matter should be mentioned. At the commencement of the third day of the hearing, Mr de Robillard stated that having reviewed the transcript of the proceedings of the second day of the hearing:

Thank you. I should start by saying that I had a quick look at the transcript of the proceedings last night. There were 91 pages so I didn’t get to go through all of it, but the central point I wish to make about that is that I do apologise to the Court because it then became very clear to me that your Honour, the presiding judge, was actually trying to get me to focus on certain things which I saw as – because of the way the proceedings started where I was expecting something to happen, something else happened, I sort of had the feeling at the time. Anyway, I just apologise and I now get what your Honour was trying to get to; and your Honour Griffiths, as well, tried to do the same thing. (AT 171.42-50)

52. If it were necessary to decide, I would find that Mr de Robillard waived any right he had to make an objection on the ground of apprehended bias.

Order

53. After I declined the recusal request and made an order dismissing the application, I asked Mr de Robillard whether he renewed his application to the Court as a whole that I recuse myself: see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419. As indicated, both Leeming JA and Griffiths AJA were present on the bench throughout the recusal application. Mr de Robillard indicated that he did not renew his application to the Court as a whole.

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Decision last updated: 13 December 2024