de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2)

[2024] NSWCA 299

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 (No 2) [2024] NSWCA 299

Hearing dates:

9, 10, 11 September 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Before:

Gleeson JA at [1]
Leeming JA at [266]
Griffiths AJA at [292]

Decision:

Appeal (2023/208817)

(1)   Refuse the extension of time to challenge the costs order made by the Registrar on 21 September 2023.

(2)   Dismiss pars [1] and [3] of the applicant’s notice of motion filed 27 February 2024 challenging the costs order made by the Registrar on 21 September 2023.

(3)   Set aside order 2 made by the Registrar on 29 January 2024 and the further order made by the Registrar on 6 February 2024 confirming the dismissal of the appeal.

(4)   Appeal allowed in part with respect to the finding of unsatisfactory professional conduct the subject of ground 2 of the application in the Tribunal, and otherwise the appeal is dismissed.

(5)   Vary order 1 made by the Tribunal on 10 December 2021 by deleting the words “unsatisfactory professional conduct and”, and in lieu thereof ground 2 of the application be dismissed.

(6)   The appellant to pay the respondent’s costs of the appeal, (a) excluding the costs relating to the appeal against the Tribunal’s finding on ground 2 of unsatisfactory professional conduct, in respect of which each party is to pay his or their own costs, and (b) including the costs of pars [1] and [3] the motion filed 27 February 2024 relating to the challenge to the costs order made by the Registrar on 21 September 2023. Otherwise make no order as to costs with respect to the relief sought in pars [1] and [4] of the motion.

Summons (2023/293223)

(1)   Declare that the respondent, Christian Roger de Robillard, is not a fit and proper person to be on the roll of legal practitioners of the Supreme Court of New South Wales.

(2)   Order that the name of the respondent, Christian Roger de Robillard, be removed from the roll of legal practitioners of the Supreme Court of New South Wales.

(3)   Respondent to pay the costs of the applicant of and incidental to these proceedings.

Catchwords:

ASSOCIATIONS AND CLUBS — Council of the NSW Bar Association — Whether Bar Council has standing to institute and prosecute disciplinary proceedings in Tribunal and Supreme Court — Where Bar Council is not a separate legal entity to NSW Bar Association

ADMINISTRATIVE LAW — NSW Civil and Administrative Tribunal — Occupational Division — Disciplinary decisions — Whether Tribunal erred in finding professional misconduct and unsatisfactory professional conduct — Whether Tribunal erred in recommending barrister be removed from the roll — Where practitioner instituted and maintained proceedings against another practitioner without reasonable justification on material available — Where deemed judgment upon lodgment of costs certificate in Supreme Court not paid by practitioner — Whether denial of procedural fairness — Whether apprehension of bias — Whether delegation of complaint by NSW Commissioner to Bar Council valid — Whether application for disciplinary findings and orders valid

OCCUPATIONS — Legal practitioners — Disciplinary proceedings — Barristers — Application for removal from roll of barristers — Where unsuccessful appeal from Tribunal decisions finding professional misconduct and recommending removal from the roll — Where prior adverse findings against practitioner — Where lack of insight and absence of contrition for breach of Barristers Rules — Where practitioner not held practising certificate for over 6 years — Whether practitioner fit to practise — Whether removal from roll warranted in all the circumstances

Legislation Cited:

Bankruptcy Act 1966 (Cth), s 43

Barristers Conduct Rules 2011 (Qld), r 12

Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cll 18, 21(1)(c)

Corporations Act 2001 (Cth), ss 79, 181, 1317E

Federal Court Rules 1979 (Cth), rr 2, 9.41

Federal Court Rules 2011 (Cth), r 9.41

Justice Legislation Amendment Act (No 2) 2019 (NSW)

Legal Profession Act 1987 (NSW), s 51

Legal Profession Act 2004 (NSW), ss 252, 311, 696

Legal Profession Uniform Law (NSW), ss 22, 23, 70, 264, 282, 297, 298, 299, 300, 301, 302, 371, 406, Ch 3, Sch 9

Legal Profession Uniform Law Application Act 2014 (NSW), ss 3, 11, 28, 35, 53, 70, 137, 260, 301

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 3, 4, 8, 9, 24B, 60, 61, 64, 65, 298

Legal Profession Uniform General Rules 2015 (NSW), rr 13, 101

Supreme Court Act 1970 (NSW), ss 48(2)(k), 75A, 121

Supreme Court Rules 1970 (NSW), r 65A.2

Uniform Civil Procedure Rules 2005 (NSW), rr 7.20, 12.7, 36.16, 42.1, 42.7, 49.19, 49.20, 51.18

Cases Cited:

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

Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40

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

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340

Council of the Law Society of New South Wales v Green [2022] NSWCA 257

Council of the Law Society of New South Wales v Leslie [2021] NSWCA 59

Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141

Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163

Council of the Law Society of NSW v DXW [2019] NSWCATOD 101

Council of the New South Wales Bar Association v de Robillard (No 2) (Costs) [2023] NSWCATOD 116

Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254

Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 373; [2021] NSWCA 339

Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11

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

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29

House v The King (1936) 55 CLR 499; [1936] HCA 40

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

Johnson v Johnson (2000) 201 CLR 337; [2000] HCA 42

Law Society of the Australian Capital Territory v Powrie (2017) 12 ACTLR 18; [2017] ACTSCFC 4

Legal Profession Complaints Committee v Megan Maree In de Braekt [2013] WASC 124

Legal Services Commissioner v Merkin [2019] QCAT 272

Legal Services Commissioner v Rushford (2012) 38 VR 141; [2012] VSC 632

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

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

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

New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20

NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284

O’Brien v Dawson (1942) 66 CLR 18; [1942] HCA 8

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128

R v Birks (1990) 19 NSWLR 677

Sadler v Whiteman [2010] 1 KB 868

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93

The Connaught Income Fund, Series I (in liquidation) v Capita Financial Managers Ltd [2014] EWHC 3619 (Comm)

The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

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

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

Wentworth v NSW Bar Association [1991] NSWCA 281

Wentworth v NSW Bar Association (1992) 176 CLR 239; [1992] HCA 24

Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46

Texts Cited:

W N Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, (1913) 23 Yale Law Journal 16

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
C R de Robillard (Self-represented) (Applicant/Respondent)
K C Morgan SC / A Poukchanski (Respondent/Applicant)
Solicitors:
Hicksons Lawyers (Respondent/Applicant)

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

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Christian Roger de Robillard is a barrister admitted to practise in New South Wales. On 19 July 2017, the NSW Legal Services Commissioner (NSW Commissioner) referred a complaint against Mr de Robillard to the NSW Bar Association for assessment, investigation and determination in accordance with Ch 5 of the Legal Profession Uniform Law (NSW) (Uniform Law). That complaint had been made by Mr Warren Wells, an opposing solicitor in legal proceedings in the Equity Division. Mr Wells had been joined as fourth defendant in proceedings (2016 proceedings), alleging that he was an accessory to conduct by his client in contravention of the directors’ duties provisions in the Corporations Act 2001 (Cth). On 28 November 2016, Black J had made orders striking out portions of an originating application and points of claim which related to Mr Wells, and ordered Mr de Robillard to personally pay the costs of Mr Wells in relation to the 2016 proceedings. On 10 November 2020, the Council of the New South Wales Bar Association (the Bar Council) commenced proceedings in the New South Wales Civil and Administrative Tribunal (the Tribunal) seeking disciplinary findings and orders against Mr de Robillard relating to his conduct as a barrister.

After a three-day hearing (Stage 1), the Tribunal found Mr de Robillard guilty of professional misconduct based on breaches of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) and unsatisfactory professional conduct based on breach of the Legal Profession Uniform General Rules 2015 (NSW). The relevant breaches concerned Mr de Robillard’s conduct as counsel in making allegations of fact in the 2016 proceedings amounting to serious misconduct against Mr Wells which were not reasonably justified on the material then available, nor did he believe on reasonable grounds that the factual material already available provided a proper basis to do so (Ground 1), and his failure to comply with an order of the Supreme Court, being a deemed money judgment that came into existence upon the lodgment of a costs certificate in the Supreme Court (Ground 2).

After a second hearing (Stage 2) which considered appropriate orders to be made in light of the finding of professional misconduct, the Tribunal made a recommendation under s 302(1)(f) of the Uniform Law that Mr de Robillard’s name be struck off the roll of legal practitioners of the Supreme Court.

Mr de Robillard appealed from the findings and recommendation of the Tribunal and, by notice of motion, sought to set aside various interlocutory orders made by the Registrar in the appeal proceedings.

The Bar Council applied by summons for a declaration that Mr de Robillard is not a fit and proper person to remain on the roll, and for a removal order. The appeal, notice of motion, and summons were heard concurrently.

The appeal by Mr de Robillard raised five main issues:

1. Whether the Bar Council has standing to bring the disciplinary proceedings in the Tribunal and to defend the appeal;

2. Whether the disciplinary application filed in the Tribunal was valid;

3. Whether the Tribunal’s decisions were affected by apprehended bias and/or procedural unfairness;

4. Whether the Tribunal’s findings of professional misconduct in relation to Ground 1 and unsatisfactory professional conduct in relation to Ground 2 should be set aside; and

5. Whether the Tribunal’s recommendation in its Stage 2 reasons should be set aside.

The primary question on the Bar Council’s summons seeking declaratory relief and a removal order, is whether Mr de Robillard is a fit and proper person to be on the roll.

APPEAL:

The Court (Gleeson JA, Griffiths AJA agreeing, Leeming JA agreeing with additional reasons, save for the order as to costs) held, allowing the appeal in part, and otherwise dismissing the appeal:

As to issue (1), per Gleeson JA (Griffiths AJA agreeing):

1. The Bar Council has standing to institute and prosecute disciplinary proceedings in the Tribunal and to defend an appeal against that decision in this Court. Whilst the Bar Council has no separate legal identity, it has specific statutory functions and powers in relation to disciplinary proceedings including a right of appearance before the Tribunal and this Court. Those provisions apply the same facilitation to the Bar Council, although not a legal entity separate from the Bar Association, to institute and prosecute disciplinary proceedings for convenience in the name of the Bar Council, as applies under procedural rules of court in various jurisdictions to actions by or against a partnership: at [96]-[99], [110]-[116].

Wentworth v NSW Bar Association [1991] NSWCA 281; Wentworth v NSW Bar Association (1992) 176 CLR 239; [1992] HCA 24; Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254, considered and applied.

As to issue (1), per Leeming JA:

2. The “Bar Council” is not in itself a legal entity which may commence proceedings. Rather, it is best understood as the members of the Bar Council acting as agents of the Bar Association. Read this way, the moving parties of the summons commenced in this Court in the name of the “Bar Council” are the members of the Council from time to time, but acting as agents of the Bar Association. In any case, this does not invalidate the proceedings: at [267]-[268].

As to issue (2), per Gleeson JA (Leeming JA and Griffiths AJA agreeing):

3. The effect of the 2019 amendment to the Legal Profession Uniform Law Application Act 2015 (NSW), which inserted cl 23 of Sch 9, is to validate the referral by the NSW Commissioner of complaints to the Bar Council relying on the 2015 delegation, including the complaint against Mr de Robillard: at [123].

Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, referred to.

4. There was no error by the Tribunal in finding that the Bar Council had resolved on 14 May 2020 to initiate and prosecute disciplinary proceedings against Mr de Robillard. The contention that the minutes of the Bar Council meeting on 14 May 2024 were not “proper minutes” was inconsistent with Mr de Robillard’s partial admission in his Reply, and the way in which he conducted his case at the Stage 1 hearing: at [126]-[128].

5. The application for disciplinary findings and orders as filed in the Tribunal on 10 November 2020 and the amended application filed shortly prior to the Stage 1 hearing were valid: at [133]-[134].

6. That members of the Bar Council may have changed during the period from the referral of the complaint in July 2017 and the Bar Council’s resolution in May 2020 to institute disciplinary proceedings does not invalidate the proceedings in the Tribunal. The reference to the Bar Council in the legislation denotes the shifting body of constituent members of the Bar Council from time to time. There is no statutory requirement that the Bar Council be constituted identically over the course of the Bar Council considering a complaint against a practitioner. Further, though the delay of nearly three years in the Bar Council’s assessment, investigation, and determination of the complaint is regrettable, the delay does not affect the validity of the application in the Tribunal: at [136]-[140].

As to issue (3), per Gleeson JA (Leeming JA and Griffiths AJA agreeing):

7. Applying the objective “double-might” test for apprehended bias, a fair-minded lay observer would not reasonably consider that the Tribunal might not bring an impartial mind to the resolution of the application brought by the Bar Council by reason of extraneous information in an affidavit and the disciplinary application which was not in evidence before the Tribunal. In any event, Mr de Robillard’s failure to object at the Stage 1 hearing means that he waived any right he had to make an objection of apprehended bias on the basis of this material. Nor did the comments attributed to Judge Cole at a directions hearing prior to the Stage 1 hearing give rise to an apprehension of bias, noting that Judge Cole was not a member of the Tribunal at the Stage 1 or Stage 2 hearings: at [75], [78].

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128; CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50; Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30; Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA, applied.

8. There was no procedural unfairness in the Stage 1 hearing in the Tribunal being conducted via audio visual link in September 2021 in accordance with advice from the NSW Government in response to the Covid-19 pandemic, or the Stage 2 hearing being heard at Parramatta rather than at Sydney: at [82]-[84].

As to issue (4), per Gleeson JA (Leeming JA and Griffiths AJA agreeing):

9. There was no error in the Tribunal’s finding of professional misconduct (Ground 1). The allegations of fact amounting to serious misconduct against Mr Wells in the originating process, points of claim and written submissions signed by Mr de Robillard were not reasonably justified on the material then available to Mr de Robillard, nor could he believe on reasonable grounds that the factual material already available provided a proper basis to do so. Neither the context in which the allegations were made, nor the urgency of the matter, justified Mr de Robillard’s conduct in breach of the Barristers Rules: at [149], [152], [159]-[160].

10. Additionally, the premise of the asserted justification of the allegations of accessorial liability against Mr Wells, that an accessory did not need to be an intentional participant in contraventions of the Corporations Act 2001 (Cth), fundamentally misstated the nature of accessorial liability: at [157]-[158].

Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65; Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, considered.

11. There was no error in the Tribunal’s finding that Mr de Robillard’s actions in breaching the Barristers Rules were apt to undermine public confidence in the legal profession and the administration of justice, and that a barrister’s immunity as an advocate must be exercised with great care: at [162]-[166].

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52; Legal Services Commissioner v Merkin [2019] QCAT 272, considered.

12. The Tribunal erred in finding unsatisfactory professional conduct (Ground 2). That finding was based on Mr de Robillard’s failure to pay $16,906.36 the subject of a costs assessment certificate which had been registered as a deemed judgment on 7 June 2017. However, Mr de Robillard was not subject to a duty to pay that judgment; instead, he became a judgment debtor of Mr Wells and was liable to the various remedies to which a judgment creditor is entitled. The Tribunal’s finding of unsatisfactory professional conduct on the basis that Mr de Robillard contravened an order of a court should be set aside: at [178]-[184].

As to issue (5), per Gleeson JA (Leeming JA and Griffiths AJA agreeing):

13. The Tribunal’s recommendation that Mr de Robillard be removed from the roll was based only on Ground 1, that is, the finding of professional misconduct. This recommendation involved an evaluative decision on the part of the Tribunal, to which the House v The King (1936) 55 CLR 499; [1936] HCA 40 standard of review applies: at [186].

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, considered.

14. The Tribunal did not err in taking into account the prior adverse findings made against Mr de Robillard, that this prior conduct was not addressed or explained by him, that previous, less severe disciplinary orders had had little deterrent effect on him, and that his conduct was not an isolated incident of unprofessional conduct. Further, contrary to Mr de Robillard’s submission, the Tribunal did not fail to have regard to other relevant matters including that he had not practised since July 2018, that he was the subject of adverse publicity and, and that his reputation had been damaged: at [188]-[192].

15. The Tribunal’s recommendation was made by reference to, and in light of, the objectives underpinning the Uniform Law, and was made in performance of the Tribunal’s disciplinary function in regulating the conduct of legal practitioners: at [200]-[201].

The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, considered.

Costs, per Gleeson JA (Griffiths AJA agreeing; contra Leeming JA):

16. Mr de Robillard should pay the Bar Council’s costs of the appeal, excluding the costs relating to the Tribunal’s finding on ground 2 of unsatisfactory professional conduct, in respect of which each party should pay their own costs: at [214], [291].

SUMMONS FOR REMOVAL ORDER:

The Court (Gleeson JA, Griffiths AJA agreeing, Leeming JA dissenting) held, granting the relief sought in the Bar Council’s summons:

Per Gleeson JA (Griffiths AJA agreeing):

17. In the absence of a successful challenge to the Tribunal’s findings by way of an appeal by the practitioner, the Court should accept those findings and the Tribunal’s characterisation of the practitioner’s conduct. Nevertheless, the Court is not bound to follow the Tribunal’s recommendation that a practitioner’s name be removed from the roll, but must independently exercise the power to make a removal order on the evidence and material before it: at [222]-[225].

Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141; Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340; Council of the Law Society of New South Wales v Leslie [2021] NSWCA; Law Society of the Australian Capital Territory v Powrie (2017) 12 ACTLR 184; [2017] ACTSCFC 4, considered.

18. The question before the Court is whether Mr de Robillard is not a fit and proper person to be a legal practitioner, here, a member of the barristers’ branch of the legal profession. In determining that question, the Court must have regard to the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of the practitioner, and maintaining public confidence in the administration of justice; that purpose having aspects of public accountability as well as deterrence: at [236]-[241].

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Council of the Law Society of New South Wales v Green [2022] NSWCA 257, considered.

19. A removal order should be made. In light of all the evidence, the only appropriate order which would serve the purposes of protection of the public and maintaining public confidence in the administration of justice is to remove Mr de Robillard’s name from the roll. The conduct of Mr de Robillard the subject of the finding of professional misconduct was of the most serious kind, and is aggravated by the prior adverse findings, the failure to demonstrate insight as to the impropriety of his conduct, and absence of contrition. Evidence tendered by Mr de Robillard including various supportive character references can only be given little weight, as it largely does not speak specifically to the allegation against Mr de Robillard the subject of the Tribunal’s finding of professional misconduct. Further, nothing in the evidence supports Mr de Robillard’s continued assertion that the Bar Council has abused its power or holds a personal vendetta against him. Nor does the delay by the Bar Council in instituting the disciplinary proceedings amount to a sufficient discretionary reason to refuse the relief sought. Mr de Robillard is not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court, and as matters stand at present is probably permanently unfit to practise: at [246]-[263].

Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141; Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Council of the Law Society of New South Wales v Green [2022] NSWCA 257; Clyne v The New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40, considered.

20. Mr de Robillard should pay the costs of the summons: at [264].

Per Leeming JA:

21. The summons should be dismissed. The delay of some three years between the complaint being made by Mr Wells in 2017 and the commencement of the proceedings in the Tribunal in November 2020 is concerning, and weighs significantly on the Court’s exercise of discretion in the removal application. Additionally, the Bar Association has failed to discharge its onus of proving that Mr de Robillard is both presently unfit for practise, and is likely to be unfit to practise for the indefinite future. Mr de Robillard’s inability to practise since 2018, largely due to the Bar Association’s delay in prosecuting these disciplinary proceedings, has meant there is no recent evidence as to his fitness or unfitness to practise which might form the basis of a finding that he is permanently unfit to practise. Further, Mr de Robillard has suggested alternative orders, such as that he be required to practise under supervision for a period of time, in lieu of removal from the roll. The Bar Association has not proved that these orders are inappropriate such that removal from the roll is the only satisfactory outcome: at [283]-[290].

Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93; Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163; Council of the Law Society of New South Wales v Green [2022] NSWCA 257, considered.

22. There should be no order as to the costs of the summons: at [291].

JUDGMENT

1. GLEESON JA: These reasons for judgment are organised in accordance with the following table of contents:

Table of Contents

HEADNOTE

JUDGMENT

Introduction

Summary of conclusions

Background

The 2015 proceedings

The 2016 proceedings

The Wells complaint

June 2018 cancellation of practising certificate

Relevant statutory provisions

The disciplinary application in the Tribunal

Tribunal’s Stage 1 reasons

Tribunal’s Stage 2 reasons

APPEAL

Apprehended bias

Extraneous material

Conduct of Judge Cole

Procedural fairness

Standing of Bar Council in disciplinary proceedings

Relationship between the Bar Council and the NSW Bar Association

Standing of the Bar Council in the Tribunal

Standing of the Bar Council on the appeal in this Court

Whether the application filed in the Tribunal was invalid

Delegation point

Minutes of Bar Council’s 14 May 2020 meeting

Form of the disciplinary application

Timing of Bar Council’s decision

Challenge to finding of professional misconduct

6 May 2016 email

Ristovski affidavit

Other affidavits in 2015 proceedings

Meaning of aid or abet

Urgency of the matter

The “major premise” of the legislative scheme

Challenge to finding of unsatisfactory professional conduct

Challenge to the Tribunal’s recommendation

Mr de Robillard’s disciplinary history

Other punishment

Abuse of process

The “major premise”

Other matters

REVIEW OF ORDERS OF THE REGISTRAR

Costs order made on 21 September 2023

Dismissal order made on 29 January 2024 and 6 February 2024

Costs of the appeal and the motion

REMOVAL FROM THE ROLL

Standing of the Bar Council

The significance of the Tribunal’s findings

The evidence

Relevant principles

Fitness to practice

Costs of the summons

Orders

SCHEDULE A

Introduction

2. Mr Christian Roger de Robillard is a barrister admitted to practice in New South Wales. After finding that he was guilty of professional misconduct and unsatisfactory professional conduct under the Legal Profession Uniform Law (NSW) (Uniform Law), the New South Wales Civil and Administrative Tribunal (Tribunal) recommended to this Court based only on the finding of professional misconduct that Mr de Robillard’s name be removed from the roll of legal practitioners. On that recommendation the Council of the New South Wales Bar Association (Bar Council) applied by summons for declaratory relief and a removal order. By his appeal, Mr de Robillard challenges the Tribunal’s findings and the recommendation to this Court for a removal order. Mr de Robillard was self-represented in this Court.

3. The underlying proceedings in the Tribunal were commenced by the Bar Council on 10 November 2020 seeking disciplinary findings and orders against Mr de Robillard under the Uniform Law on two grounds relating to his conduct as a barrister. The Tribunal dealt with that application in two hearings.

4. At the first hearing, Mr de Robillard was represented by senior counsel and gave evidence. The finding of professional misconduct was based on breaches of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (the Barristers Rules), rr 60(a), 61(a), 64(a), 65(a), and 8(c) relating to the making of allegations of fact in legal proceedings amounting to allegations of serious misconduct against an opposing solicitor which were not reasonably justified or properly available on the material (Ground 1). The finding of unsatisfactory professional conduct was based on breach of the Legal Profession Uniform Conduct General Rules 2015 (NSW) (General Rules), r 13(q)(i) relating to the failure to comply with a personal costs order made against Mr de Robillard on 7 June 2017 in Supreme Court proceedings in which he appeared as counsel (Ground 2): Council of theNew South Wales Bar Association v de Robillard [2021] NSWCATOD 207 (the Stage 1 reasons or S1). At the second hearing, Mr de Robillard was self-represented. He did not give evidence but tendered some documentary evidence. As indicated, the Tribunal’s recommendation for a removal order was based only on the finding of professional misconduct: Council of the New South Wales Bar Association v de Robillard [2023] NSWCATOD 75 (the Stage 2 reasons or S2).

5. Section 23(1)(c) of the Uniform Law provides that the Supreme Court may order the removal of a person’s name from the Supreme Court roll on the recommendation of the Tribunal. The Court’s jurisdiction under that provision is distinct from its inherent jurisdiction to supervise the legal practitioners listed on the roll, which is preserved by s 264 of the Uniform Law. At the hearing of the summons, the Bar Council abandoned reliance on the inherent jurisdiction of this Court and confined its claim that Mr de Robillard be removed from the roll to one based on the Tribunal’s recommendation. Although the application for a removal order is not in the nature of an appeal, such proceedings are assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(k) and Supreme Court Rules 1970 (NSW), r 65A.2.

6. Given that the Bar Council does not rely on the Court’s inherent jurisdiction, the removal order depends on the finding that Mr de Robillard engaged in “professional misconduct” as defined in the Uniform Law, s 297. Thus, the application for a removal order only arises if Mr de Robillard’s appeal against that finding or the Tribunal’s recommendation is unsuccessful.

7. If the appeal is unsuccessful, the Court is not bound to follow the Tribunal’s recommendation that the practitioner’s name be removed from the roll. As explained below, the Court must independently exercise the power under s 23(1)(c) of the Uniform Law on the evidence and material before it.

8. The appeal and the summons were heard concurrently over three days, together with a notice of motion by Mr de Robillard seeking review of certain procedural orders made by the Registrar in the appeal proceedings. Those orders concerned: first, a costs order made on 21 September 2023 in favour of the Bar Council with respect to a successful interlocutory motion filed by the Bar Council, and second, a “guillotine” order made on 29 January 2024 with respect to non-compliance with a procedural order for the filing of Mr de Robillard’s written submissions on the appeal by a specified date, which took effect and was confirmed by further order made by the Registrar on 6 February 2024 dismissing the appeal proceedings.

Summary of conclusions

9. For the reasons that follow, (i) the challenge to the Registrar’s costs order should be dismissed, (ii) the challenge to the Registrar’s guillotine order should be upheld, and the dismissal order made by the Registrar with respect to the appeal proceedings should be set aside, (iii) the appeal should be dismissed, and (iv) the declaration and removal order sought on the summons should be made, with the consequence that Mr de Robillard’s name should be removed from the roll.

Background

10. The circumstances giving rise to the disciplinary proceedings in the Tribunal are as follows. On 18 July 2017 a complaint was made by Mr Warren Wells of Balmain Lawyers to the Office of the Legal Services Commissioner (the NSW Commissioner) about the conduct of Mr de Robillard in Equity Division proceedings in 2016. Mr de Robillard had appeared as counsel for one group of parties and Mr Wells acted for another party in a shareholder’s dispute between family members. The main parties to the dispute were Mr Alecsander (Alex) Ristovski, for whom Mr Wells acted, and Mr Tony Ristovski, the brother of Alex Ristovski, for whom Mr de Robillard was briefed to appear instructed by Mr Mukel Dey of Associated Legal. Mr de Robillard was the godfather of Nadine Ristovski, the wife of Tony Ristovski.

The 2015 proceedings

11. Equity Division proceedings 2015/375735 (the 2015 proceedings) involved an application by Alex Ristovski for access to documents held by the defendant-companies which carried on wholesale and retail seafoods businesses. The directors of the defendant companies were Alex Ristovski and Tony Ristovski. Together with their late father, Dragoljub (Drago) Ristovski, who died in September 2015, Alex and Tony held shares in at least some of the defendant-companies; the detail is not presently relevant.

12. At a directions hearing on 14 June 2016, Black J suggested that the proceedings be referred to mediation and the parties agreed. The mediation was held on 29 August 2016 but was unsuccessful. Correspondence ensued between the parties’ solicitors in relation to various disputes including Alex Ristovski’s request for company documents, the freezing of company bank accounts by National Australia Bank, and the control of market stalls at Flemington markets.

13. On 21 October 2016 Black J made orders by consent that the defendants provide specified documents and information to Alex Ristovski, including copies of a trust deed, specified bank account details and completed copies of tax returns.

14. On 28 October 2016 Black J granted leave to the defendants to file in Court an interlocutory process dated 28 October 2016, returnable on 31 October 2016, seeking injunctive relief against Alex Ristovski and others, including Mr Wells as fourth respondent, restraining Mr Wells in any way (either directly or through any agent) from aiding, abetting, counselling or procuring Alex Ristovski from contravening or attempting to contravene the requirements of s 181 of the Corporations Act 2001 (Cth).

15. On 31 October 2016 Mr de Robillard appeared for the defendants in the 2015 proceedings. Black J made orders, including joining Tony Ristovski as tenth applicant in the interlocutory process dated 28 October 2016, and noted the undertaking given by Tony Ristovski that he would file an originating process and points of claim seeking final relief in respect of specified matters by 14 November 2016, such originating process to be listed for directions on 21 November 2016.

The 2016 proceedings

16. On 18 November 2016 the defendants in the 2015 proceedings became the plaintiffs in Equity Division proceedings 2016/345756 (the 2016 proceedings) upon filing an originating process and interlocutory process, and points of claim against Alex Ristovski, Marina Ristovski, Jovoka Ristovski and Mr Wells. (Marina Risotvoski was the wife of Alex, and Jovka Ristovski was the mother of Alex and Tony).

17. The originating process sought the following relief against Mr Wells as fourth defendant at par [7]:

The First and Fourth Defendants are enjoined from providing any advice to Jovka Ristovska [sic] or from causing Jovka Ristovska to transfer any asset currently registered in Jovka Ristovka’s name to the First and/or Second Defendants. …

18. The points of claim signed by Mr de Robillard contained the following allegations against Mr Wells at par [49]:

In the premises the Plaintiffs contend that the commencement of the original proceedings by the First and Fourth Defendants may constitute evidence of a lack of good faith on the First Defendants [sic] part. The First Defendant was aided and abetted by the Second and Fourth Defendant in the use of the original proceedings for an improper purpose; which included damage to the First to Tenth Plaintiffs.

(The reference to the “original proceedings” was a reference to the 2015 proceedings.)

19. At the directions hearing on 21 November 2016, counsel for Mr Wells indicated that he would argue that the originating process and points of claim should be struck out insofar as they related to Mr Wells. Black J informed the parties that the Court could hear that application immediately if Mr de Robillard did not require a formal application. Mr de Robillard elected to require Mr Wells to file an interlocutory process to seek those orders. Mr Wells filed an interlocutory process on 22 November 2016 seeking to strike out the claims against him.

20. Mr de Robillard signed written submissions dated 22 November 2016 opposing the strikeout motion, which included the following allegations against Mr Wells:

The case against the Fourth Defendant currently include:

17. Aiding and abetting the First Defendant in relation to breaches of section 181 of the Corporations Act (the Act).

…

20. It is respectfully submitted that the evidence of Mr Tony Ristovski filed on 28 October 2016 would support a claim that the Fourth Defendant aided and abetted the First Defendant in breaches of sections 181-184, of the Act.

22.   The Fourth Defendant aided and abetted the First Defendant in the oppressive conduct, the subject of complaints made [sic] the opening paragraph of the Originating Process.

23.   Subject to final instructions, It [sic] will be submitted that the Fourth Defendant overstepped his function as a lawyer and/or officer of the Court; …

21. At the hearing of the motion on 28 November 2016, Mr de Robillard obtained leave to read the affidavit of Tony Ristovski dated 28 October 2016 filed in the 2015 proceedings (the Ristovski affidavit). He relied upon that affidavit as evidentiary support for the allegations made against Mr Wells. Nevertheless, during the hearing before Black J, Mr de Robillard conceded that:

(a)   The Points of Claim were not satisfactory and ought to be amended;

(b)   The Originating Process and the Points of Claim could not stand in their present form;

(c)   He had not advised the other parties earlier that he would not be defending the pleading in its present form because he was not able to obtain sufficient instructions to have an affidavit sworn; and

(d)   The person who could give evidence in relation to some of the allegations was not available and therefore Mr de Robillard had not been able to talk to the person and get instructions for an affidavit to be provided, and in those circumstances the points of claim were not satisfactory at the time.

22. At the conclusion of the hearing, Black J delivered an ex tempore judgment and made orders striking out those portions of the originating process and points of claim which related to Mr Wells and for Mr de Robillard to personally pay the costs of Mr Wells in relation to the interlocutory process filed 22 November 2016 and in relation to the 2016 proceeding, such costs to be payable forthwith.

23. Balmain Lawyers, acting for Mr Wells, wrote to Mr de Robillard on 6 December 2016 and again on 25 January 2017 requesting payment of counsel’s fees in the amount of $10,560 and Mr Wells’ costs the subject of a tax invoice issued by Balmain Lawyers in the sum of $7,421.53.

24. On 1 March 2017 Balmain Lawyers served an application by Mr Wells for assessment of ordered costs. A costs assessor was appointed on 11 April 2017. The costs assessor invited Mr de Robillard to make any objections to the costs assessment process by 1 May 2017. Whilst Mr de Robillard did not make formal objections to the assessment process, he made assertions about the quantum of costs in email correspondence with the costs assessor on 10 May 2017 and 19 May 2017.

25. On 24 May 2017 the costs assessor issued a certificate of determination of costs in the amount of $16,104.36 plus his costs of $802. On 7 June 2017 the certificate of determination of costs was registered as a judgment of the Supreme Court in the sum of $16,906.36: Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 70(5).

26. In response to Mr Wells’ solicitors seeking payment of that judgment, Mr de Robillard indicated by email on 14 June 2017 that he would be lodging an application for a review of the assessment, but never did so.

27. Subsequently, on about 13 August 2021, the costs the subject of the judgment dated 7 June 2017 were paid to Mr Wells by Mr Dey, Mr de Robillard’s instructing solicitor in the 2015 and 2016 proceedings.

The Wells complaint

28. Following receipt of the Wells complaint on 18 July 2017, the NSW Commissioner referred that complaint to the NSW Bar Association on 19 July 2017 for assessment, investigation, and determination in accordance with Ch 5 of the Uniform Law. The Bar Association assigned the assessment and investigation of the Wells complaint to a Professional Conduct Committee (PCC) of the Bar Association.

29. On 19 September 2017 a PCC resolved to proceed to an investigation of the Wells complaint pursuant to s 282 of the Uniform Law. By letter dated 1 December 2017 Mr de Robillard was afforded an opportunity to make a response to the Wells complaint. He did not respond.

30. On 25 January 2018 the Bar Association issued a notice pursuant to s 371 of the Uniform Law requiring Mr de Robillard to provide specified written information in relation to the Wells complaint. Mr de Robillard sought and was granted an extension of time until 30 March 2018 to respond, but he never responded.

31. By letter dated 18 February 2020 Mr de Robillard was afforded an opportunity to make a response to a draft report of the PCC dated 31 July 2019. He did not respond.

32. On 14 May 2020, the Bar Council considered the final report of the PCC dated 22 April 2020. The Bar Council resolved that the Wells complaint be the subject of disciplinary proceedings in the Tribunal pursuant to s 300 of the Uniform Law. Mr de Robillard was informed of this decision by letter from the Bar Association dated 2 July 2020.

June 2018 cancellation of practising certificate

33. Mr de Robillard has not held a practising certificate as a barrister since 29 June 2018. That followed a resolution by the Bar Council on 21 June 2018 that Mr de Robillard had not shown in a written statement that, despite an automatic show cause event, he was a fit and proper person to hold a practising certificate. The “automatic show cause” event was the service of a creditors’ petition on Mr de Robillard on 27 May 2017, who had failed to give notice of this event to the Bar Council within seven days of the creditors’ petition having been served on him.

Relevant statutory provisions

34. The Uniform Law draws a distinction between “unsatisfactory professional conduct” and “professional misconduct”. Section 296 defines “unsatisfactory professional conduct” to include:

…conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

35. Section 297(1) defines “professional misconduct” to include:

(a)   unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

36. Section 297(2) says:

For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

37. The definitions of both unsatisfactory professional conduct and professional misconduct are expanded in s 298 to include further specified categories of conduct which, relevantly, include conduct constituting a contravention of “the Uniform Rules”: s 298(b). Here, the relevant Uniform Rules are the Barristers Rules and the General Rules made under Pt 9.2 of the Uniform Law.

38. Relevantly, rules 8(a), 60(a), 61(a), 64(a) and 65(a) of the Barristers Rules, provide:

8   General

A barrister must not engage in conduct which is:

…

(c)   likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

60   Responsible use of court process and privilege

A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:

(a)   is reasonably justified by the material then available to the barrister,

…

61   A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:

(a)   are reasonably justified by the material then available to the barrister,

…

64   A barrister must not allege any matter of fact in:

(a)   any court document settled by the barrister,

…

unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.

65   A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a)   available material by which the allegation could be supported provides a proper basis for it, and

…

39. The General Rules, relevantly, include r 13(1)(q)(i) which provides that when considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to specified matters, including:

(q)   whether the applicant has contravened:

(i)   an order of a court or tribunal made in any proceedings.

The disciplinary application in the Tribunal

40. On 10 November 2020 the Bar Council commenced proceedings in the Tribunal by filing an application for disciplinary findings and orders under the Uniform Law. An amended application was filed on 10 September 2021 just before the commencement of the Stage 1 hearing on 13 September 2021. The amendments included the addition of words in par (1) of the orders sought which made clear that the relief sought was an order that the Tribunal recommend that Mr de Robillard’s name be removed from the roll of legal practitioners. The application relied on two grounds.

41. Ground 1 alleged that Mr de Robillard had engaged in professional misconduct, or alternatively, unsatisfactory professional conduct by allowing the 2016 proceedings to be commenced, and by maintaining proceedings against Mr Wells as the fourth defendant, in circumstances where the proceedings against Mr Wells:

1. invoked the coercive powers of the Court without reasonable justification on the material available to Mr de Robillard, contrary to r 60(a) of the Barristers Rules;

2. made allegations or suggestions under privilege against Mr Wells without reasonable justification from the material available to Mr de Robillard, contrary to r 61(a), Barristers Rules;

3. alleged matters of fact in documents settled by Mr de Robillard where available factual material did not provide a proper basis to do so, contrary to r 64(a), Barristers Rules;

4. alleged matters amounting to serious misconduct against Mr Wells, where Mr de Robillard did not believe on reasonable grounds that there was available material by which those allegations could be supported, contrary to r 65(a), Barristers Rules; and

5. engaged in conduct which was likely to diminish public confidence in the legal profession or otherwise bring the legal profession into disrepute, contrary to r 8(c), Barristers Rules.

42. The particulars given of this alleged conduct have been summarised at [10], and [14]-[22] above.

43. Ground 2 alleged that Mr de Robillard engaged in professional misconduct, or alternatively, unsatisfactory professional conduct by failing to comply with the “order” of the court dated 7 June 2017 that he pay $16,906.36 to Mr Wells. The particulars given of this alleged conduct have been summarised at [22]-[27] above.

Tribunal’s Stage 1 reasons

44. Ground 1: the Tribunal found that there was no proper or reasonable basis for Mr de Robillard to make the allegations that the opposing solicitor, Mr Wells, was engaging in serious misconduct, specifically that Mr Wells “aided and abetted” his client to breach the Corporations Act and “overstepped his functions as a lawyer”, and that the material available provided no reasonable justification to initiate the 2016 proceedings: at S1[180]-[181]. The Tribunal was satisfied that Mr de Robillard knew of the seriousness of the allegations he was making in the documents which he signed and settled: at S1[167], [182]. The Tribunal noted that the inevitable consequence of Mr de Robillard’s accusations was that Mr Wells would have to cease acting for his client, and found that a barrister who had acted with even a basic level of care would have understood the prejudice that would be caused by his actions: at S1[221]. The Tribunal found that the conduct was considered and not on the spur of the moment, given that Mr de Robillard had been alerted to the shortcomings of the allegations and pleadings that he had authored and was persistent with the claims: at [289].

45. The Tribunal found that Mr de Robillard contravened rr 60(a), 61(a), 64(a) and 65(a) of the Barristers Rules: at S1[233]. The Tribunal further found that Mr de Robillard’s conduct breached r 8(c) of the Barristers Rules by exercising his advocates’ immunity in breach of the Barristers Rules in the ways identified by the Bar Council which had a very real probability of diminishing public confidence in the legal profession or bringing it into disrepute: at S1[242]. The Tribunal found that this amounted to serious misconduct: at S1[292].

46. Ground 2: the Tribunal found that whilst Mr de Robillard was made bankrupt on 17 August 2017, he placed no acceptable evidence before the Tribunal demonstrating that he had no capacity to pay a costs order made against him: at S1[278]. The Tribunal found that his refusal to pay the personal costs order, without informing Mr Wells of any circumstances that rendered him unable to pay the costs, put Mr Wells to the further costs of attempting to enforce payment: at S1[273]. The Tribunal found that from the time the costs order was made until his bankruptcy, Mr de Robillard never accepted that he had an obligation to pay the sum ordered, an order which he did not oppose at the time it was made; rather, he sought to “challenge” (that is, dispute) his obligations: at S1[274]. The Tribunal further found that the fact that the order was ultimately paid by a third party did not exculpate Mr de Robillard because he contravened the orders of the Court by never attempting to pay and not paying the debt due: at S1[278]. The Tribunal found that this conduct contravened r 13(1)(q)(i) of the General Rules.

47. The Tribunal concluded that Mr de Robillard’s conduct was “of the most serious kind” and that the conduct constituting Ground 1 amounted to professional misconduct (at S1[287]), whilst the conduct constituting Ground 2 amounted to unsatisfactory professional conduct (at S1[286]).

Tribunal’s Stage 2 reasons

48. At the commencement of its Stage 2 reasons, the Tribunal addressed an issue agitated at the Stage 1 hearing which the Tribunal acknowledged it had not provided its reasons, namely, whether the Bar Council is capable of being a party to the proceedings. The Tribunal stated that it had reached the conclusion that the Bar Council is a legal entity and is able to be a party to the proceedings and gave reasons for that conclusion: at S2[3]-[15].

49. The Tribunal next addressed and gave reasons for rejecting several recusal applications made by Mr de Robillard (at S2[21]-[226]). The Tribunal then summarised the evidence adduced by the Bar Council, including prior adverse findings against Mr de Robillard (at S2[237]), the documentary evidence tendered by Mr de Robillard (at S2[295]-[314]), and the parties’ submissions (at S2[315]-[352]). With respect to the prior adverse findings relating to complaints made between August 2016 and January 2019, Mr de Robillard had received five reprimands, one caution and was required to provide an undertaking in relation to the complaint made by the Bar Association that he had been representing he was a barrister in January 2019 (S2[238]). The Tribunal noted (at S2[236]) that three complaints against Mr de Robillard in 2002, the subject of proceedings commenced by the Bar Council in the former Administrative Appeals Tribunal in 2003, had been brought out of time, and leave to commence out of time was refused: New South Wales Bar Association v de Robillard [2004] NSWADT 45.

50. No complaint is made in relation to the Tribunal’s statement of legal principles as to its jurisdiction in disciplinary proceedings at S2[356]-[361], which included reference to Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 373; [2021] NSWCA 339 at [164], [169] and [171].

51. The Tribunal then addressed the question of Mr de Robillard’s character and fitness to practise, based solely on the finding of professional misconduct and stated its findings and conclusions: at S2[375]-[386]. Relevantly, the Tribunal noted that (i) Mr de Robillard had not presented any character evidence or evidence from medical witnesses (at S2[386(3) and (8)]), and (ii) the impugned conduct the subject of the finding of professional misconduct was not an isolated instance of unprofessional conduct having regard to Mr de Robillard’s disciplinary history (at S2[386(10)-(11)]). Rather, the Tribunal found (at S2[386(13)]) that Mr de Robillard:

… has not accepted or appreciated that being a lawyer on the Roll carries with it specific obligations to fully and properly recognise the role of the regulatory body in respect of overseeing the professional standards required of practitioners.

52. The Tribunal said it was “very concerning” that Mr de Robillard did not seek to explain the circumstances giving rise to the previous findings of unsatisfactory professional misconduct in his disciplinary history, but rather sought to shift the blame by way of unfounded accusations against Mr Wells, senior counsel for the Bar Council and the Bar Council’s previous chief executive director and past Presidents: at S2[386(15), (17), (19), (30)].

53. The Tribunal found that Mr de Robillard had not learned from past experience, and that previous disciplinary orders made by the Bar Council had little deterrent effect on him, including in relation to his continued allegations of misconduct against others: at S2[386(18), (19)]. The Tribunal considered that Mr de Robillard’s disciplinary history weighed significantly in favour of an order removing him from the roll: at [386(20)].

54. The Tribunal was not able to identify any mitigating action by Mr de Robillard in relation to the impugned conduct, noting “if anything, the reverse is the case”: at S2[386(28)]. The Tribunal accepted that Mr de Robillard’s reputation had been damaged by the reporting of the disciplinary proceedings in the media and noted its expectation that he would suffer further reputational damage if the Tribunal recommended his removal from the roll: at S2[386(24)].

55. The Tribunal found that a serious “Protective Order” outcome was necessary to have the required deterrent impact and denunciation of Mr de Robillard’s conduct: at S2[386(26)].

56. Although Mr de Robillard acknowledged in his final submissions “some” wrongdoing on his part, the Tribunal found that he did not accept full responsibility. After noting that Mr de Robillard was convinced that he was the subject of a personal victimisation by a former executive director of the Bar Association and some other members of the Bar Council over a number of years, the Tribunal observed that Mr de Robillard attributed this victimisation as being consequent to his involvement with the government of Vanuatu and his having to be rescued from that place following his incarceration during a political upheaval or event in that country: at S2[386(30)].

57. The Tribunal found that Mr de Robillard had not demonstrated that he understood, or accepted, the limits which should not be crossed as a practitioner, nor would abide by them if he was permitted to continue as a barrister or practising lawyer: at S2[386(32)].

58. The Tribunal found that Mr de Robillard was unfit to practise, and probably permanently so (at S2[386(34)]) and concluded that no lesser sanction than removal from the roll would meet the public interest (at S2[386(39)]).

59. In making that recommendation, the Tribunal summarised its reasons at S2[387]:

We propose to make the recommendation sought by the Council. Our determination has been based upon our consideration of the guidelines as above set out and our application of same to the findings we have made, and the circumstances of this case. We have determined the Respondent is not, at this time, fit to practise as a barrister. We have determined the Respondent is probably permanently unfit to practise. We have determined it is not possible to impose a less impactive protection order upon the Respondent and be satisfied he will henceforth practise safely and not bring himself to the notice of the Bar Council for unsatisfactory professional conduct or professional misconduct. Regretfully, mindful of the impact upon the Respondent’s reputation and ability to financially support himself, we are of the view that only the removal from the Roll as a barrister will protect the public and will also serve as a sufficient deterrent to other lawyers on the Roll of Solicitors and Barristers of the consequence of conduct as established against the Respondent. We also hold the view that it is a necessary outcome in order to uphold the confidence and respect of the public in the legal profession as a whole.

60. On 2 August 2023 the Tribunal made an order for costs against Mr de Robillard: Council of the New South Wales Bar Association v de Robillard (No 2) (Costs) [2023] NSWCATOD 116.

APPEAL

61. Mr de Robillard has an appeal as of right from the decisions of the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act), Sch 5, Pt 6, cl 29(2)(b). The nature of an appeal from the decisions of the Tribunal is stated by the Court in Council of the New South Wales Bar Association v EFA (a pseudonym) at [4] (Bathurst CJ, Leeming JA and Simpson AJA):

The appeal is governed by s 75A of the Supreme Court Act 1970 (NSW). It is an appeal by way of rehearing (subs (5)); the Court has the powers and duties of the Tribunal, including the power and duty to make findings of fact and draw inferences (subs (6)). The power to make findings of fact inconsistent with those made by the Tribunal is constrained by the principles stated by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 28.

62. The grounds of appeal are prolix and discursive, and failed to state “briefly, but specifically, the grounds relied on in support of the appeal”: Uniform Civil Procedure Rules 2005 (NSW), (UCPR), r 51.18(1)(e).

63. Read together with Mr de Robillard’s written submissions, the grounds raise the following issues:

• first, the Bar Council’s standing to bring the disciplinary proceedings in the Tribunal, and to defend the appeal;

• second, whether the disciplinary application filed by the Bar Council in the Tribunal was valid;

• third, complaints of apprehended bias and procedural unfairness on the part of the Tribunal;

• fourth, whether the Tribunal’s findings of professional misconduct in relation to Ground 1 and unsatisfactory professional conduct in relation to Ground 2 should be set aside; and

• fifth, whether the Tribunal’s recommendation in its Stage 2 reasons should be set aside.

Apprehended bias

64. The issue of bias (and by extension procedural unfairness) should be addressed first. This is because if either ground is established, the disciplinary proceedings would be remitted to the Tribunal for rehearing: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9] (Basten JA).

65. The rule against apprehended bias is one aspect of the obligation of procedural fairness which applies generally to tribunals: CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 at [55] (Nettle and Gordon JJ). Here, the obligation of procedural fairness expressly applies to the Tribunal by reason of s 301(2) of the Application Act.

66. The test for apprehended bias is objective. The test does not require an assessment of the state of mind of the decision-maker, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. The question is “whether a fair-minded lay observer might reasonably consider that a [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide” (emphasis added): Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson at [31].

67. The application of this 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 at [32]-[33]. 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]; CNY17 at [21] (Kiefel CJ and Gageler J).

68. In applying the “double-might” test in a matter involving a tribunal, rather than a court, it has been said that the decision and reasons the tribunal has given for its decision is part of the “totality of circumstances” which a fair-minded lay observer may take into account: CNY17 at [20] (Kiefel CJ and Gageler J). Similarly, Nettle and Gordon JJ drew attention in CNY17 at [58] to the legal, statutory and factual contexts in which the decision is made by a tribunal and said (citations omitted):

… it is necessary to consider … the legal, statutory and factual contexts in which the decision is made”. It is also necessary to consider “what is involved in making the decision and the identity of the decision-maker”. This draws attention to the fact that the test must recognise “differences between court proceedings and other kinds of decision-making”. The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has “a broad knowledge of the material objective facts … as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker].

69. A finding of apprehended bias is not to be reached lightly: CNY17 at [56] (Nettle and Gordon JJ), citing Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371; [1986] HCA 39.

70. In this Court, Mr de Robillard relied upon two matters as giving rise to the appearance of bias by the Tribunal: (i) extraneous material, and (ii) comments of Judge Cole.

Extraneous material

71. It is said that that the Tribunal’s impartiality was affected by extraneous information before the Tribunal, which was irrelevant and prejudicial, comprising (i) par [4] of the affidavit of Mr Gregory Tolhurst which annexed Mr de Robillard’s disciplinary history, and (ii) par [3] of the amended application which referred to conditions imposed on Mr de Robillard’s practising certificate “regarding compliance with tax obligations”.

72. It is said that this extraneous material might conceivably be apprehended by the fair-minded lay observer to have compromised the independence or impartiality of the Tribunal in the conduct of the Stage 1 hearing. Reference was made to CNY17 at [16] (Kiefel CJ and Gageler J) and [53]-[55] (Nettle and Gordon JJ), where both joint judgments referred to the statement by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74; [1994] HCA 30 describing the category of cases involving disqualification by extraneous information as consisting of cases where “knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”.

73. In addressing this submission, it needs to be kept in mind that the fair-minded lay observer who is “neither complacent nor unduly sensitive or suspicious” (CNY17 at [19], citing Johnson v Johnson (2000) 201 CLR 337; [2000] HCA 42 at [53]) would recognise from the relevant statutory context that (i) in deciding a question of professional misconduct or unsatisfactory professional conduct, the Tribunal is bound to observe the rules of evidence in proceedings (Sch 5, cl 20, Tribunal Act), and (ii) although the Tribunal is not a court, when conducting a disciplinary hearing involving a legal practitioner under the Uniform Law, the Tribunal must be constituted by Division Members as the President determines as being appropriate for a particular case, relevantly, in this case, a presiding member with a judicial qualification, a senior member with a professional qualification of a barrister, and one general member: Sch 5, cl 18, Tribunal Act. Both of these features of the relevant statutory context are inconsistent with the assertion that Tribunal had regard to extraneous material at the Stage 1 hearing.

74. The fair-minded lay observer would also recognise two further matters. First, par [4] of the Tolhurst affidavit was not in evidence before the Tribunal, as it was not read by the Bar Council at the Stage 1 hearing, nor was the amended application in evidence before the Tribunal. Second, the Tribunal made no reference in its Stage 1 reasons to Mr de Robillard’s disciplinary history, or the conditions attaching to his practising certificate. Again, that is consistent with the Tribunal ignoring that material.

75. The contention that the fair-minded lay observer with knowledge of the relevant statutory context might reasonably apprehend, in the totality of the circumstances, including the Stage 1 decision and reasons the Tribunal has given for its decision, that a departure from impartial decision making might have occurred because of extraneous material which was not in evidence before the Tribunal at the Stage 1 hearing is rejected.

76. Waiver: the Bar Council says that, in any event, the failure by Mr de Robillard to object constituted waiver of any objection to the Tribunal continuing to hear and determine the matter: Vakauta v Kelly (1989) 167 CLR 568 at 572; [1989] HCA 44 (Brennan, Deane and Gaudron JJ). The question of waiver can be dealt with briefly, given that it is not dispositive.

77. In Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [43], Gleeson CJ, Heydon and Crennan JJ said:

An objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and … if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result.

78. At the Stage 1 hearing, Mr de Robillard was represented by senior counsel. No objection was taken by his counsel that the members of the Tribunal should recuse themselves on the grounds of knowledge of material contained in documents before the Tribunal although not in evidence, specifically, par [4] of the Tolhurst affidavit and par [3] of the amended application. Mr de Robillard is bound by the conduct of his counsel. If it were necessary to decide, it should be concluded that Mr de Robillard waived any right he had to make an objection of apprehended bias on the ground of knowledge of material which was not in evidence before the Tribunal.

Conduct of Judge Cole

79. It is said that the Tribunal’s impartiality was also affected by the conduct of Judge Cole in February 2021, prior to the Stage 1 hearing, when in response to a complaint by Mr de Robillard at a directions hearing that the Tolhurst affidavit contained irrelevant material in the form of his disciplinary record, Judge Cole responded that the proceedings were not criminal proceedings, and did not take any step to exclude par [4] of the Tolhurst affidavit from the Stage 1 hearing. Whilst a transcript of this hearing was not put before this Court, the Bar Council did not dispute the accuracy of the comment which Mr de Robillard attributed to Judge Cole.

80. The comment attributed to Judge Cole does not give rise to apprehended bias on the part of the Tribunal. In addition to the fact that Judge Cole was not a member of the Tribunal at the Stage 1 or Stage 2 hearings, the time for ruling on evidentiary objections to the Tolhurst affidavit was at the Stage 1 hearing. That occurred in this case, and as a consequence, par [4] of the Tolhurst affidavit was not read.

81. The submission that a reasonable fair-minded lay observer might have apprehended that the Tribunal might have been biased is rejected.

Procedural fairness

82. It is said that Mr de Robillard was seriously disadvantaged at the Stage 1 hearing in September 2021 because it was conducted via audio visual link (AVL), rather than a live hearing (ground 20). The use of such technology for conducting hearings in the Tribunal followed an announcement by the President of the Tribunal, effective 23 August 2021, that in response to the latest Covid-19 health advice from the NSW Government, there would be no in-person hearings at NCAT until lockdown restrictions were lifted, and matters would proceed by AVL or telephone, if possible. No objection to an AVL hearing was made by senior counsel for Mr de Robillard at the Stage 1 hearing. Nor did counsel suggest that Mr de Robillard could not follow the conduct of that hearing via the AVL. There is no merit in this complaint.

83. It is also said that insofar as part of the Stage 2 hearing was conducted at Parramatta from 24 to 26 October 2022, this location impeded the ability of members of the public who had attended the Stage 1 hearing in Sydney from attending that part of the Stage 2 hearing held at Parramatta (ground 21). There is no substance in this complaint. The asserted inconvenience to members of the public in attending hearings at Parramatta rather than Sydney was immaterial and of no consequence.

84. The complaints of procedural unfairness are rejected.

Standing of Bar Council in disciplinary proceedings

85. Mr de Robillard contended in the Tribunal that the application for disciplinary findings should be “struck out” because “the Bar Council has no independent legal personality which could make it a competent party in curial proceedings”. The Tribunal summarised the parties’ competing submissions with respect to the standing issue at S1[102]-[115] but did not expressly determine that issue in its Stage 1 reasons. The Tribunal acknowledged this omission in its Stage 2 reasons, where it said that it accepted as correct the Bar Council’s analysis set out in its Stage 1 reasons at S1[104], which enabled it to hear the application brought by the Bar Council: at S2[10]-[11], [14]. The Tribunal said at S2[11]:

The Bar Council in our view did have the ”independent legal personality” to bring the proceedings. That ”personality” is encapsulated by ss 11, 28(2) and 29 of the Legal Professional Uniform Law Application Act 2014 (NSW) which recognises that the functions exercisable by the New South Wales Legal Services Commissioner may be exercised by the body described as the Bar Council, which is defined in s 3 as the Council of the Bar Association, which is in turn defined as the New South Wales Bar Association. The Bar Council also tendered the delegation authority. It was contained in the document titled ”Instrument of Delegation and Direction”. By that delegation, the Bar Council has the right or authority to commence the proceeding currently under consideration and to do so in its own name. (Emphasis added)

86. The reference to the “delegation authority” in the above passage from the Tribunal’s reasons, is a reference to the delegation of the NSW Commissioner’s Ch 5 functions to the Bar Council dated 9 October 2019, which was in evidence before the Tribunal (the 2019 delegation).

87. Mr de Robillard contended that the Bar Council does not have “legal capacity” and could not bring the proceedings in the Tribunal or defend any appeal therefrom (grounds 1 and 2). In oral argument, he asked rhetorically “How can you be a party when you don’t exist?”, but later resiled from that position and accepted “as a general proposition” that the Uniform Law and the Application Act give the Bar Council standing to bring disciplinary proceedings against barristers.

88. Mr de Robillard submitted that in this case there is a “temporal” issue because the members of the Bar Council changed between the time when the complaint was referred by the NSW Commissioner to the Bar Council and when the Bar Council resolved to institute disciplinary proceedings.

89. The Bar Council submitted that the regime established by the Uniform Law and the Application Act grants the Bar Council distinct legal standing to commence disciplinary proceedings in the Tribunal and to defend an appeal from orders of the Tribunal. For the following reasons, the Bar Council’s submission should be accepted.

90. It is not in dispute, as the Tribunal recorded (at S1[104]), that the relationship between the Bar Council and the NSW Bar Association is now provided for by the Constitution of the NSW Bar Association, which states:

14.1   Manage general business of the Bar Association

14.1.1   The business and affairs of the Bar Association shall be managed and administered by the Bar Council.

14.1.2   The Bar Council may exercise all the powers of the Bar Association and:

(a)   do all the acts that may be done on behalf of the Bar Association; and

(b) exercise all the powers that may be exercised by the Bar Association which are not required to be exercised by the Bar Association in General Meeting, by the Corporations Act or by this Constitution.

…

…

14.2   Other powers.

The Bar Council may exercise such other powers as may be conferred upon it by or under any legislative instrument.

Relationship between the Bar Council and the NSW Bar Association

91. The different status and standing of the NSW Bar Association and the Bar Council was discussed by the Court of Appeal in Wentworth v NSW Bar Association [1991] NSWCA 281. That case involved admission proceedings. The applicable legislation, s 51(b) of the Legal Profession Act 1987 (NSW) (the 1987 Act), gave the Bar Council a right to appear and be heard by the Supreme Court “in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers”, which included disciplinary and admission proceedings. Speaking of the legal status of the Bar Council in the context of the right of appearance given by s 51 of the 1987 Act, Mahoney JA observed (at 3-4):

The Bar Council does not, as such, have a corporate existence. It is the term applied in the Articles of Association of the Bar Association to the body or group of persons elected by the members of the Association to conduct the business of the Association. The Bar Council is, in relevant respects, analogous to a board of directors. In one sense the Articles of Association may be seen as creating offices and the aggregate of those offices is the Bar Council.

It is, it may be thought, somewhat curious that functions of this kind have been given to the Bar Council as such. And it is arguable that, insofar as the Bar Council acts in relation to matters of this kind, it acts, not on its own behalf or even as an agent of the Association, but as the Association itself: see O’Brien v Dawson (1942) 66 CLR 18 at 32.

(O’Brien v Dawson (1942) 66 CLR 18 at 32; [1942] HCA 8 is authority for the proposition that as a company “‘cannot act in its own person for it has no person … it must of necessity act by directors, managers or other agents”.)

92. Mahoney JA (Clarke JA and Hope AJA relevantly agreeing) held that (i) s 51 of the 1987 Act was not intended to exclude the capacity of the Bar Association to appear because the Bar Association had so appeared in such matters for 50 years or more and if that were the intention of the legislature “it would … have so provided in terms”, and (ii) the right of appearance by the Bar Council contained in s 51 was not limited to making submissions and included the right to adduce evidence.

93. The High Court dismissed an appeal by Ms Wentworth: Wentworth v NSW Bar Association (1992) 176 CLR 239; [1992] HCA 24. The joint judgment of Deane, Dawson, Toohey and Gaudron JJ observed at 248 that the NSW Bar Association is a company limited by guarantee, that its Articles of Association provide for “a Council of the Association” and for its business to “be managed by the elected members of [that] Council”, and it is that Council constituted by its elected member, which functions as the governing body of the Bar Association, and which has been referred to as the “Bar Council”. The joint judgment said that that whilst the Bar Council has no separate legal identity, “… it has specific statutory powers and functions in relation to barristers and candidates for admission to the Bar”.

94. The joint judgment continued at 251-252:

… disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. … Disciplinary proceedings and admission proceedings are “sui generis”. Disciplinary proceedings have been described as proceedings concerned with the protection of the public. And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings.

95. Brennan J agreed that the appeal should be dismissed. After referring at 246-247 to differences between the Bar Council and the Bar Association, including the changing membership of the Bar Council and the potential difficulties of enforcing an order for costs against individual members of the Bar Council, Brennan J said:

250. Mr de Robillard said that his practice as a barrister involved “catering more for the little people”, and therefore the public interest would not be served by a removal order; rather, a less severe order is appropriate. This was a reference to a proposal which Mr de Robillard put to the Bar Council, shortly prior to the hearing in this Court, that he be allowed to recommence practice immediately on the condition that he attend a refresher course or the next Bar course, and that he practises under supervision of senior counsel for a period of 12 months. I have formed the view that a less severe order would not be appropriate, whether a suspension or the “education” and “supervision” proposal put forward by Mr de Robillard to the Bar Council. It should be noted that the jurisdiction of this Court on the present application is limited to either making a removal order or dismissing the summons.

251. As Mahoney JA said in Foreman at 444D-E, in deciding whether a person is a fit and proper person to be held out by the Court as such, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor or barrister as the case may be. It is relevant that the practitioner may not understand, or be willing to accept, the obligations which the law places upon a practitioner and the high standard of performance which it requires.

252. Regrettably, this is such a case. A practitioner’s failure to appreciate the existence, let alone the gravity, of his or her misconduct is relevant to the possibility that it will recur, and the need to protect the public from such recurrence: Legal Profession Complaints Committee v Megan Maree In de Braekt [2013] WASC 124 at [35]. In this case, a suspension is inappropriate in circumstances where, despite not practising for six years, Mr de Robillard failed to appreciate the existence, and gravity, of his misconduct. For the same reasons, the “educational” and “supervision” conditions suggested by Mr de Robillard provide inadequate protection to the public and are inappropriate.

253. Delay: the delay by the Bar Council in the assessment investigation and determination of the Wells’ complaint and the subsequent commencement of proceedings in the Tribunal is regrettable. Senior counsel for the Bar Council correctly accepted that delay was relevant to the exercise of the discretion on the application for removal. Two factors mitigate the delay.

254. One is that Mr de Robillard did not respond to (i) the opportunity afforded to him by letter dated 1 December 2017 to make written submissions in response to the Wells complaint, (ii) the s 371 notice issued by the Bar Association on 23 January 2018 by the time extended for a response, being 30 March 2018, or (iii) the opportunity afforded to him in February 2020 to make written submissions in response to the draft PCC report.

255. The other matter is that Mr de Robillard’s practising certificate was cancelled for other reasons with effect from 29 June 2018, and he did not subsequently make an application for the issue of a practising certificate. Overall, I do not consider that the delay is a sufficient discretionary reason to refuse the removal order sought by the Bar Council.

256. Mr de Robillard’s failure to comply with the high standards expected and required of a practitioner as an officer of the court was not a one-off occurrence. The previous disciplinary orders have had little, if any, deterrent effect on Mr de Robillard’s subsequent conduct in breach of the Barristers Rules. The prior adverse findings weigh significantly in favour of a removal order, given that the professional misconduct found by the Tribunal is very serious. I recognise that the disciplinary action of a removal order is a very serious one. It involves very serious consequences for the practitioner, but the interests of the public and those of the legal profession to which Mr de Robillard belongs must also be considered. This Court has a duty to protect the public from misconduct of this kind, not just by Mr de Robillard, but from other barristers whom it might be expected would be deterred from such conduct by the sanction sought here to be imposed. This Court must also insist on the maintenance of the highest standards of propriety in the performance of duties by legal practitioners before the Court.

257. I am satisfied that Mr de Robillard is not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court. Further, as matters stand at present, the probabilities are that he is permanently unfit to practise. A removal order should be made as sought by the Bar Council.

258. It is also appropriate for the Court to declare in a formal way, and not merely in reasons for decision, the basis on which that order is made. As Spigelman CJ said in Cummins at [32]:

… Such a declaration serves the public interest, not least by reaffirming the high regard the Court has for the reputation and standing of the legal profession, represented before the Court by the Bar Association. A formal declaration will go some way to assuring the public that conduct of this character cannot be and is not tolerated in the profession. …

Costs of the summons

264. There is no reason why costs of the summons should not follow the event: UCPR, r 42.1. The Bar Council submitted correctly that Mr de Robillard’s conduct necessitated the filing of the summons seeking a removal order in the public interest.

Orders

265. I propose that the following declaration and orders be made:

Appeal (2023/208817)

1. Refuse the extension of time to challenge the costs order made by the Registrar on 21 September 2023.

2. Dismiss pars [1] and [3] of the applicant’s notice of motion filed 27 February 2024 challenging the costs order made by the Registrar on 21 September 2023.

3. Set aside order 2 made by the Registrar on 29 January 2024 and the further order made by the Registrar on 6 February 2024 confirming the dismissal of the appeal.

4. Appeal allowed in part with respect to the finding of unsatisfactory professional conduct the subject of ground 2 of the application in the Tribunal, and otherwise the appeal is dismissed.

5. Vary order 1 made by the Tribunal on 10 December 2021 by deleting the words “unsatisfactory professional conduct and” and in lieu thereof ground 2 of the application be dismissed.

6. The appellant to pay the respondent’s costs of the appeal, (a) excluding the costs relating to the appeal against the Tribunal’s finding on ground 2 of unsatisfactory conduct, in respect of which each party is to pay his or their own costs, and (b) including the costs of pars [1] and [3] of the motion filed 27 February 2024 relating to the challenge to the costs order made by the Registrar on 21 September 2023. Otherwise make no order as to costs with respect to the relief sought in pars [1] and [4] of the motion.

Summons (2023/293223)

1. Declare that the respondent, Christian Roger de Robillard, is not a fit and proper person to be on the roll of legal practitioners of the Supreme Court of New South Wales.

2. Order that the name of the respondent, Christian Roger de Robillard, be removed from the roll of legal practitioners of the Supreme Court of New South Wales.

3. Respondent to pay the costs of the applicant of and incidental to these proceedings.

266. LEEMING JA: I have had the large advantage of reading the reasons for judgment of Gleeson JA in draft. Subject to what follows, I agree with them (and to be clear, the fact that I do not address most of the issues raised by Mr de Robillard does not detract from my agreement with Gleeson JA’s reasons on those issues). However, I would reach a different conclusion. I can be brief in light of what has already been said.

267. Prominent in Mr de Robillard’s submissions in both the appeal and the summons was the proposition that the “Bar Council” was not a legal person. His submission is correct, but it is without consequence. As Gleeson JA explains, the “Bar Council” is the fluctuating body of members who are recognised by the Constitution of the NSW Bar Association, charged (by cl 14.1 of the Constitution) with its management and administration and who may exercise all of its powers. The “Bar Council” is also recognised by various statutes as having standing to perform certain functions, including commencing proceedings in NCAT and in this Court, and being indemnified for certain costs from the Public Purpose Fund pursuant to s 53 of the Legal Profession Uniform Law Application Act 2014 (NSW). But (subject to statute) only a legal entity can claim an indemnity or retain a solicitor or commence proceedings in this Court. The references to the Bar Council are to be understood as references to the members of the Bar Council acting as agents of the Bar Association. Thus the moving parties on the summons commenced in this Court in the name of the “Bar Council” are the members of the Council from time to time, but acting as agents of the Bar Association. This accords with the submission of senior counsel.

268. So far as the evidence discloses, the fluctuating group of members constituting the Bar Council from time to time had very little to do with the decision-making process to commence proceedings, save for the initial resolution of 14 May 2020, or the conduct of those proceedings. There is nothing to suggest that they provided ongoing instructions to the lawyers who acted on their behalf. In what follows I shall refer to the Bar Association.

269. Turning to the appeal from the decision and orders of the Tribunal, I agree that Mr de Robillard’s appeal against the finding of professional misconduct based on ground 1 must fail. I agree with Gleeson JA that the conduct giving rise to that finding was of a very serious kind. It fell short of being the worst sort of case in at least two respects: it fell short of being done for the purpose of intimidating the other solicitor, and the time from when the allegation was made to when it was struck out was a period of less than a fortnight.

270. I also agree with Gleeson JA that ground 2 is bad in law. To my mind that is close to self-evident. Contrary to the way in which ground 2 was framed, a costs order is not an injunction which can be contravened. A costs order does not without more give rise to a debt which is due and enforceable. The orders I propose will quash the finding made by the Tribunal that this count was made out and constituted unsatisfactory professional conduct, and in lieu thereof, dismiss this ground of the Bar Association’s application.

271. The delay in this litigation is troubling. A great deal is attributable to steps taken by Mr de Robillard, but substantial aspects of the delay are attributable to the Bar Association. The complaint founding these proceedings was made in 2017. Notwithstanding that Mr de Robillard’s practising certificate was cancelled in June 2018, no proceedings were commenced until November 2020, more than three years after the complaint on which they were based.

272. Mr de Robillard complained about the delay. He did so in aid of a submission that the proceedings were invalid. That submission was devoid of merit. But I made it clear on the first day of the hearing that I was concerned about delay:

LEEMING JA: Well, I do have a concern, to be honest. There’s a complaint in 2017. It takes two years to produce a draft report, it takes eight months for the draft report to go to the practitioner, and then Bar Council, or whoever it is, gets around to filing proceedings in November 2020. I find that concerning. It’s more than three years. If it was a personal injury matter you would be out of time.

273. That concern was shared by the complainant. A long time after making his complaint, the solicitor expressed his own views about the conduct of the Bar Association. His letter of 14 May 2019 stated, after referring to his complaint, and his earlier inquiries as to its progress:

I now receive a letter from you almost exactly two years after the complaint was made. I have no objection to the fact that nothing has been done about my complaint for two years but I do very strongly object to the content of your letter, particularly that you, in bold, require my reply to your letter by 5:00pm, Friday, 7 June 2019, which is mentioned not once, but twice in your letter.

Your letter contains no apology for the failure on the part of the Bar Association to deal with my complaint, the delay in doing so, nor does it give any indication as to why there is now an inherent urgency in my response.

274. The solicitor was under the misunderstanding that Mr de Robillard had been struck off, as opposed to having had his practising certificate cancelled, as a telephone conversation followed by the Bar Association’s letter of 15 May 2019 confirmed. The letter added “As discussed with you, the Committee intends to expedite the investigation of your complaint and see it through to the end, whether or not you would like to withdraw your complaint”. Some weeks later, the solicitor informed the Bar Association that “[i]t is not my intention to provide any further information”.

275. Thus an officer of the Bar Association was advising the complainant that his complaint would be “see[n] … through to the end”, irrespective of the complainant’s attitude. Of course, the Bar Association was entitled to form its own view of how to proceed, although one might think that the fact that a complainant had ceased to wish to assist would be a relevant consideration, but there is nothing to suggest that there was any indecision on the part of the Bar Association. The Bar Association also advised of its intention to “expedite” the complaint. Yet proceedings were not commenced until November 2020, another 18 months later.

276. What happened in the meantime? Obviously the matter was not especially urgent, despite its seriousness. Mr de Robillard was not practising. The complainant was no longer prepared to assist. A draft report was provided to the Bar Council on 31 July 2019. Unfortunately, a decision of NCAT (Council of the Law Society of NSW v DXW [2019] NSWCATOD 101) held, on 25 June 2019, that the Commissioner’s delegation to the Council of the Law Society was invalid, and validating legislation did not come into effect until 22 November 2019 (by the Justice Legislation Amendment Act (No 2) 2019 (NSW)). There was no evidence of this, but the Court was asked to infer that the applicability of the reasoning in DXW to its own delegation from the Commissioner was the reason that the Bar Association did not invite comment from Mr de Robillard on its report dated 31 July 2019 until February 2020. I would infer that the legal uncertainty justified the Bar Association’s inactivity between 31 July 2019 and 22 November 2019.

277. But I would also infer that the Bar Association knew that the legislation was being introduced, knew that it would have validating effect, and knew that it commenced on 22 November 2019. Why did it take a further three unexplained months, until 18 February 2020, to forward the report dated 31 July 2019 for comment?

278. And why after no comments had been received, and the Bar Council had resolved on 14 May 2020 to initiate and prosecute proceedings, did it take until 10 November 2020 to do so? It should be pointed out that the originating process is a short document of 6 pages and 13 paragraphs, 11 of which are uncontroversial and 2 of which particularise the grounds, and that those charged with drafting it had the benefit of the 31 July 2019 report identifying the two grounds which were the subject of the Bar Council’s resolution. Another document in evidence indicates that the Bar Association had retained external solicitors no later than 2 July 2020.

279. It seems clear that either the Bar Association delayed too long retaining solicitors, or the solicitors or counsel took too long to draft or settle the originating process, or the Bar Association took too long to approve it, or some or all of the above. Something is wrong if it takes an organisation regulating the barristers’ branch of the legal profession six months to go from a decision to commence proceedings on specified grounds to the commencement of those proceedings by a six page document.

280. I am poorly placed to express a view as to whether this level of delay by the Bar Association is normal. However, it is not unique. Indeed, the last contested occasion in which the Bar Association moved to strike a barrister from the roll in which I was involved was also accompanied by delay, which this Court took into account in assessing the hardship suffered by the barrister, summarised in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [185]:

There are other factors that need to be taken into consideration. The conduct in question took place on 21 July 2017. The respondent was aware, at least from 2 August 2017, that his conduct was under consideration by the Council. On 7 September 2017 the Council first resolved to take disciplinary action. On 23 August 2018 it withdrew the first complaint and substituted another. It was not until 3 December 2019 that the Council filed its application in the Tribunal. It was another year before the Stage 1 hearing in the Tribunal took place (December 2020). The Tribunal delivered its Stage 1 decision promptly enough, in March 2021, and its Stage 2 decision in May 2021. For more than four years the respondent has lived with the uncertainty of his future. It is not necessary to attribute blame for the delay in bringing the matter to a conclusion; the effect has, plainly, involved significant hardship to the respondent.

281. I shall return to the significance of the Bar Association’s delay.

282. It is somewhat artificial to exclude from my consideration of whether to exercise the discretion to remove Mr de Robillard’s name from the roll my perception of his abilities as a barrister based on what he wrote and said during the majority of the three day hearing in this Court. He appeared for himself. That was his right, and it may well have been that he had no practical choice. But he took a series of legal points which were hopeless or close to hopeless, and, worse, made a series of forensic decisions (not least concerning the filing of evidence) which did not advance his case. He candidly said at one stage that “Obviously I have some fail[ings] as a barrister” and “the fact I have been a barrister for a long time doesn’t mean I am a good barrister”; those statements showed some self-awareness, but fell well short of an appropriate level of insight and contrition. Further, subsequent to the main hearing, this Court heard Mr de Robillard’s belated application that one of its members disqualify himself, aspects of which – including its timing – reflect poorly on his professional judgment. That application is summarised and resolved in a separate judgment of this Court. All of that said, the Bar Association confirmed at the conclusion of that application that the evidence upon which it relied was confined to that identified by Gleeson JA at [228] above. It is on that evidence and that evidence alone that this Court’s determination of the Bar Association’s application for removal is based.

283. It is one thing to form the view that Mr de Robillard is unfit to practise today, and another thing for the Bar Association to discharge the onus it has assumed to demonstrate that he is likely to be unfit for the indefinite future: see Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54]; Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]-[100]; Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [67].

284. In the circumstances of this case, that presents no small burden. The Bar Association issued practising certificates to Mr de Robillard for many years, and many clients and colleagues, including some lawyers, have been impressed at his abilities. Plainly something went wrong in Mr de Robillard’s life in the period from 2016 until the cancellation of his practising certificate in June 2018. It is known that he was made bankrupt in 2017, but Mr de Robillard’s forensic choices (which in large measure involved focussing on bitter disputes with the Bar Association more than two decades ago, rather than going into evidence about his position today), have left this Court without full explanation of what other matters contributed to this period in his life.

281. The position is, therefore, that there was a time in 2016-2018 when Mr de Robillard appears to have gone off the rails, the reasons for which have not been fully exposed. But there was also an earlier, longer period of time, from around 2004 – 2015, when Mr de Robillard appears to have practised without attracting complaints.

282. Is the future likely to be a repeat of the last couple of years before Mr de Robillard’s practising certificate was cancelled? Or will he have learned from the experience? If Mr de Robillard returns to practice, will the future resemble 2016 and 2017, or will it resemble an earlier, longer period? The absence of anything like evidence of full contrition and insight is very concerning. But I am also conscious that the delay accompanying this hearing poses difficulties for the Bar Association to establish this aspect of the case. There is no evidence from the last six years about Mr de Robillard’s ability or inability to represent clients, because the Bar Association has made it perfectly clear that it will not issue a practising certificate to him.

283. Mr de Robillard has offered to subject himself to conditions which would approximate a reader’s first year. That is an important difference from what was put forward in the Tribunal. It also shows some insight. I am unable to be satisfied that that approach will not, at some time in the future, be viable. It is highly unusual, but this is a highly unusual case. The Bar Association has from time to time permitted former members who have left the profession for some years to return, on terms that they subject themselves to the same conditions to which readers are subjected. It is possible that with the benefit of the hearing in this Court, Mr de Robillard will achieve a level of insight which is presently lacking. If so, then a graduated conditional return to practice may be viable. The conditions which I have in mind include (I am not intending to be exhaustive) full participation in the Practice Course (a full-time four week practical course for new barristers), reading with a mentor who would meet with him most days, not being able to appear without a leader for at least the first three to six months, and thereafter only with the explicit permission, on a hearing by hearing basis, of his mentor, not taking direct access briefs, and an obligation to disclose to every instructing solicitor that he is practising under a period of supervision. It would be on the basis of that supervised practice that a further application for a practising certificate would be determined.

284. That level of restriction may not be satisfactory to Mr de Robillard (who was admitted to practise so long ago as 1977). And it may be that Mr de Robillard turns out not to achieve a greater measure of insight than he presently has. It may also be that, even if he achieves such insight, experience in closely supervised practice will confirm that the Bar Association is right and he is unlikely ever to be fit to practise as a barrister. But I am not satisfied that that is likely to be the case for the indefinite future. The result is that the Bar Association has not discharged its onus of establishing that Mr de Robillard is so unlikely ever to be fit to practise that his name should be removed from the roll.

285. That conclusion relieves me from a full consideration of the discretion which this Court has been called upon to exercise. But I do struggle to see the purpose of spending what must be hundreds of thousands of dollars of public funds which have been directed to the litigation to date. The jurisdiction is wholly protective. Yet no threat is posed to any barrister or solicitor or court or client by Mr de Robillard’s name being on the roll. He lacks a practising certificate, and there is no prospect of that changing until and unless Mr de Robillard demonstrates greater insight than has hitherto been the case and subjects himself to something akin to the conditions of a further period of pupillage. Mr de Robillard is of the view that there are those in the Bar Association whose purpose is to punish him. I am unpersuaded that that is the case. However, I do find it difficult to reconcile this litigation with the protective nature of the jurisdiction which has been invoked, while I am certain that its effect has been to impose hardship on Mr de Robillard over the last six years. On the view I take, it is not necessary to determine whether, even if the Bar Association made out a case that Mr de Robillard was likely to be unfit to practise for the indefinite future, it might nonetheless be appropriate to refuse relief as a matter of discretion because no protective purpose would be served by the removal of his name from the roll.

286. I propose that Mr de Robillard’s appeal be allowed in part, the finding of unsatisfactory professional conduct made by the Tribunal be set aside, and in lieu thereof ground 2 of the application be dismissed. I also propose that the Bar Association’s summons be dismissed.

287. Bearing in mind that Mr de Robillard is, at least for the most part, only entitled to costs of an unrepresented litigant, and that the matters as to which he has succeeded seem not to have been advanced on the occasions when he was represented, my present view is that the appropriate exercise of the discretion as to costs in both proceedings is that there be no order as to costs, with the intention that Mr de Robillard and the Bar Association bear his and its own costs, with both having an entitlement to apply within the time specified in UCPR r 36.16 if he or it seeks some different order as to costs.

288. GRIFFITHS AJA: I agree with Gleeson JA.

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SCHEDULE A

PART 5 – PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT ACT (NO 2) 2019

Validations

1. The 2015 delegation is taken to be, and always to have been, validly made under section 406 of the Uniform Law.

2. The 2015 delegation is taken to have had the following operation during the relevant period for the purposes of this Act and the Uniform Law—

   (a)   the delegation of functions to the Bar Association also operated to delegate the functions to the Bar Council,

   (b)   the delegation of functions to the Law Society also operated to delegate the functions to the Law Society Council,

   (c)   the delegation authorised the Bar Association, Law Society and each Council (an authorised delegate) to make further delegations of functions to another entity (a subdelegate),

   (d) the delegation authorised an authorised delegate or a subdelegate to appoint investigators under section 282 of the Uniform Law (whether generally or in relation to a particular law practice or a particular complaints investigation),

   (e) the delegation authorised an authorised delegate or a subdelegate to exercise the Chapter 5 functions of the NSW Commissioner in relation to complaints even if—

   (i)   a complaint was made to or by the delegate or subdelegate instead of the Commissioner, or

   (ii)   a disciplinary matter or consumer matter dealt with by the delegate or subdelegate was a matter other than one the Commissioner decided not to deal with or continue to deal with, or

   (iii)   a decision or determination was made or other action taken by a delegate or subdelegate concerning a disciplinary matter without the matter being referred to the delegate by the Commissioner, or

   (iv)   a decision or determination was made or other action taken by a delegate or subdelegate concerning a consumer matter without the matter being referred to the delegate by the Commissioner.

   Note. Under the Uniform Law, Chapter 5 functions means—

   (a) functions under Chapter 5, or

   (b) functions under another provision of that Law relating to Chapter 5, or

   (c) functions under the Uniform Rules relating to Chapter 5.

3. Without limiting subclause (2), an authorised delegate or a subdelegate is taken during the relevant period—

   (a)   to have been authorised under this Act and the Uniform Law—

   (i) to receive or make complaints in exercise of the Chapter 5 functions of the NSW Commissioner, and

   (ii) to initiate or prosecute proceedings in respect of complaints in a court or tribunal in exercise of the Chapter 5 functions of the NSW Commissioner, and

   (b)   to have made a complaint even if there was non-compliance with a requirement of section 267 of the Uniform Law.

4. Accordingly—

   (a)   any decision, determination or other action of an authorised delegate or subdelegate during the relevant period that would have been valid if subclauses (1)–(3) had been in force at the time is validated, and

   (b)   any proceedings commenced by an authorised delegate or subdelegate during the relevant period that would have been validly commenced if subclauses (1)–(3) had been in force at the time are validated, and

   (c)   any order or other decision of a court or tribunal made during the relevant period in proceedings referred to in paragraph (b) that would have been valid if subclauses (1)–(3) had been in force at the time is validated.

   …

5. This clause (including anything authorised by this clause) has effect despite anything to the contrary in—

   (a)   the 2015 delegation, or

   this Act, the Uniform Law or any other law.

6. In this clause—

   2015 delegation means the delegation of the NSW Commissioner’s functions to the Bar Association and Law Society purportedly made by the NSW Commissioner under section 406 of the Uniform Law on 18 June 2015.

   action includes an omission.

   commenced, in relation to proceedings, includes initiated or prosecuted.

   consumer matter has the meaning given by section 269 of the Uniform Law.

   disciplinary matter has the meaning given by section 270 of the Uniform Law.

   proceedings include purported proceedings.

   relevant invalidity ground, in relation to proceedings, means on the ground that the proceedings were not validly commenced by an authorised delegate or subdelegate because of any one or more of the following reasons—

   (a)   the delegate or subdelegate was not authorised to commence the proceedings by the 2015 delegation, including because—

   (i)   the 2015 delegation was not valid, or

   (ii)   the terms of the 2015 delegation did not allow the delegate or subdelegate to commence proceedings, or

   (iii)   the delegate, subdelegate or NSW Commissioner did not comply with a provision of the 2015 delegation,

   (b)   the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where this Act or the Uniform Law required the complaint to have been made to or by the NSW Commissioner,

   (c)   the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where there was non-compliance with a requirement of section 267 of the Uniform Law.

   relevant period means the period commencing on 18 June 2015 and ending immediately before the day on which this clause commences.

   rules of court, in relation to the Civil and Administrative Tribunal, means—

   (a) Tribunal rules referred to in section 25 of the Civil and Administrative Tribunal Act 2013, and

   (b)   procedural directions given by the President of the Tribunal under section 26 of that Act.

   terminated includes withdrawn, stayed, dismissed, discontinued or otherwise not proceeded with.

   Uniform Law means the Legal Profession Uniform Law (NSW).

Decision last updated: 13 December 2024