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

1. [1]

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

Introduction

1. [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.

2. [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.

3. [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 the New 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).

4. [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.

5. [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.

6. [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.

7. [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.

8. [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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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).

6. [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.

7. [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).

8. [17]

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

9. [18]

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

10. [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.

11. [20]

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

12. [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:

13. [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.

14. [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.

15. [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.

16. [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).

17. [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.

18. [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.

19. [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.

20. [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.

21. [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.

22. [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.

23. [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.

24. [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

1. [34]

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

2. [35]

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

3. [36]

   Section 297(2) says:

4. [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.

5. [38]

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

6. [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:

The disciplinary application in the Tribunal

1. [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.

2. [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. (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. (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. (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. (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. (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.

3. [42]

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

4. [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.

5. [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].

6. [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].

7. [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.

8. [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]).

9. [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].

10. [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.

11. [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].

12. [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:

13. [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)].

14. [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)].

15. [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)].

16. [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)].

17. [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)].

18. [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)].

19. [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)]).

20. [59]

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

21. [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

1. [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):

2. [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).

3. [63]

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

Apprehended bias

1. [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).

2. [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.

3. [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].

4. [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).

5. [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):

6. [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.

7. [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.

8. [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”.

9. [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”.

10. [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.

11. [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.

12. [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.

13. [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.

14. [77]

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

15. [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.

16. [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.

17. [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.

18. [81]

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

Procedural fairness

1. [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.

2. [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.

3. [84]

   The complaints of procedural unfairness are rejected.

Standing of Bar Council in disciplinary proceedings

1. [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]:

2. [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).

3. [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.

4. [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.

5. [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.

6. [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:

7. [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):

8. [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.

9. [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”.

10. [94]

    The joint judgment continued at 251-252:

11. [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:

12. [96]

    Thus, Wentworth recognised that whilst the Bar Council has no separate legal identity, it has specific statutory functions and powers in relation to admission and disciplinary proceedings, and that the right of appearance by the Bar Council contained in the 1987 Act with respect to disciplinary and admission proceedings was not limited to making submissions and included the right to adduce evidence.

13. [97]

    The legislative regime following the 1987 Act continued to recognise the standing of the Bar Council with respect to disciplinary proceedings against a barrister. By s 696, the Legal Profession Act 2004 (NSW) (the 2004 Act) provided for the Bar Council’s standing before the Supreme Court in the exercise of the Supreme Court’s disciplinary functions and also to institute prosecutions and other proceedings for the breach of any of the provisions of the 2004 Act, the regulations, or the Legal Profession Rules.

14. [98]

    In Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254, Edmonds J found that the Bar Council had standing under the 2004 Act, notwithstanding it is not a separate legal entity from the Bar Association, to obtain a costs order against a barrister in the Tribunal, then known as the Administrative Decisions Tribunal: at [25]. The costs order had been made in favour of the Bar Council under s 566(1) of the 2004 Act, which was in similar terms to s 303(1) of the Uniform Law.

15. [99]

    His Honour found at [26] that the Bar Council had standing to commence and maintain proceedings in its own name seeking declaratory relief in the Federal Court without a description of the identity of the constituent members of the Bar Council because it had standing as a creditor under s 43(1) of the Bankruptcy Act 1966 (Cth). In reaching that conclusion, his Honour drew an analogy at [27] with the rules of court permitting proceedings to be brought in the name of a partnership, rather than the individual partners (Order 42, r 2 of the Federal Court Rules, now r 9.41 of the Federal Court Rules):

16. [100]

    The functions of the NSW Commissioner under Ch 5 of the Uniform Law include receiving complaints made by any person or body and also initiating a complaint containing a disciplinary matter only (s 266), conducting a preliminary assessment of a complaint (s 276), investigating complaints (s 282), and initiating and prosecuting disciplinary proceedings against a respondent-lawyer in the designated tribunal (s 300).

17. [101]

    The “designated tribunal” in this jurisdiction for the purposes of Ch 5, Pt 5.4, Div 3 of the Uniform Law deals with the determination of disciplinary applications against a lawyer. The “designated tribunal” in this jurisdiction for the purposes of Ch 5, Pt 5.4, Div 3 of the Uniform Law is the Tribunal: Application Act, s 11(3) (Table 2). By Sch 5, cl 4(1) of the Tribunal Act the functions of the Tribunal in relation to the Uniform Law are allocated to the Occupational Division of the Tribunal.

18. [102]

    The provisions of the Uniform Law and the Application Act operate to appoint certain roles and responsibilities to the “designated local regulatory authority”. That term has the same meaning in the Application Act as it has in the Uniform Law: Application Act, s 3(2). The Uniform Law, s 6 defines “local regulatory authority” in the context of a reference to “a local regulatory authority” in any provision of the Uniform Law to mean any “designated local regulatory authority”, and the expression “designated local regulatory authority” is defined to mean “a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this law in which the term is used”. Section 11(1) of the Application Act is such a provision. It provides:

19. [103]

    Relevantly, in Column 2 of Table 1 the “designated local regulatory authority” for Ch 5 of the Uniform Law is the “NSW Commissioner”, being the person holding office or acting as Legal Services Commissioner under Div 2 of Pt 3 of the Application Act: Application Act, s 3.

20. [104]

    Taken together, the Uniform Law and the Application Act permit (i) the delegation by the NSW Commissioner as the “designated local regulatory authority” of specified functions of the Commissioner, including Ch 5 functions, and (ii) the exercise of those delegated functions by the Bar Council with respect to barristers.

21. [105]

    By s 406 of The Uniform Law:

22. [106]

    The reference in s 406 to “[a] local regulatory authority” means “any designated local regulatory authority” (see [103]-[104] above), and the reference in this jurisdiction to the “designated local regulatory authority” for Ch 5 of the Uniform Law is the NSW Commissioner: Application Act, s 11(1) (Table 1).

23. [107]

    By s 28(2) of the Application Act:

24. [108]

    By s 29 of the Application Act, in addition to its other functions, the Bar Council may exercise functions conferred or imposed on it or the Bar Association by (a) the Uniform Law, (b) the Application Act, or (c) as delegate of the NSW Commissioner.

25. [109]

    The Uniform Law and the Application Act 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, which although not a legal entity, for convenience the firm name may be used for the sake of suing and being sued: see, for example, r 9.41 of the Federal Court Rules 2011 (Cth); and in England where proceedings also may be commenced in the name of or against a partnership, see Sadler v Whiteman [2010] 1 KB 868 at 889 (Fletcher Moulton LJ), and more recently: The Connaught Income Fund, Series I (in liquidation) v Capita Financial Managers Ltd [2014] EWHC 3619 (Comm). By contrast this procedure is not available in this State with respect to proceeding by or against a partnership: see UCPR, r 7.1.

26. [110]

    That the Bar Council has standing to bring disciplinary proceedings in the Tribunal as the delegate of the NSW Commissioner, is consistent with other provisions in the legislative scheme for the disciplining of barristers, which also recognise the standing of the Bar Council to appear before and become a party to disciplinary proceedings in the Tribunal. Schedule 5, cl 21(1)(c) of the Tribunal Act, relevantly, provides:

27. [111]

    The Bar Council can also obtain a costs order against a legal practitioner where a finding is made by the designated tribunal that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, unless the designated tribunal is satisfied that exceptional circumstances exist: Uniform Law, s 303(1). A similar provision is found in Sch 5, cl 23(1) of the Tribunal Act, which specifically refers to making a costs order in favour of “a Council” (which includes the Bar Council). The Bar Council can also obtain funding from the Public Purpose Fund for payment of its costs and expenses, relevantly, in exercising Ch 5 functions, and in relation to any proceedings in or on appeal from the Supreme Court: Application Act, s 53(1)(k) and (l).

28. [112]

    At the time the Bar Council commenced the disciplinary proceedings against Mr de Robillard in November 2020, the NSW Commissioner had delegated the Ch 5 functions to the Bar Council by the 2019 delegation. There is no challenge to the validity of the 2019 delegation. Contrary to Mr de Robillard’s contentions, the Bar Council has standing conferred by statute to institute and prosecute disciplinary proceedings in the Tribunal, as the delegate of the NSW Commissioner pursuant to the 2019 delegation.

29. [113]

    The submission that the Bar Council does not have standing to appear in this Court to oppose the appeal is difficult to reconcile with the notice of appeal which named the Bar Council as the first respondent. Nevertheless, the Bar Council’s standing to appear in this Court on his appeal is not in doubt.

30. [114]

    By s 35, the Application Act provides for appearances by the “local regulatory authority” before any court as follows:

31. [115]

    As indicated, a “local regulatory authority” in this jurisdiction is relevantly the NSW Commissioner, and this includes the Bar Council as delegate of the NSW Commissioner. The appeal by Mr de Robillard against the decisions of the Tribunal is a “matter” in which the Bar Council is “concerned or interested” as the delegate of the NSW Commissioner: Application Act, s 35.

32. [116]

    Further, as noted, the standing of the Bar Council in an appeal before this Court is recognised by s 53(1)(i) of the Application Act which provides for payment from the Public Purpose Fund of the costs and expenses of a Council, which includes the Bar Council, in relation to any proceedings “in … the Supreme Court” with respect to the discipline of a legal practitioner.

Whether the application filed in the Tribunal was invalid

1. [117]

   It is said that the Bar Council’s application filed in the Tribunal on 10 November 2020 was invalid for several reasons: (i) the 2015 delegation of the NSW Commissioner’s Ch 5 functions to the Bar Council was invalid, (ii) the absence of “proper” minutes of proceedings of the Bar Council on 14 May 2020, (iii) the application as filed was defective, (iv) the “surreptitious” filing by the Bar Council of an amended application on 10 September 2021, (v) the temporal issue of the timing of the Bar Council’s consideration of PCC reports and its decision to institute disciplinary proceedings, and (vi) the delay in commencing the disciplinary proceedings after the Bar Council’s decision on 14 May 2020.

2. [118]

   As of 19 July 2017, the date of referral by the NSW Commissioner of the Wells complaint to the Bar Association, the applicable delegation by the NSW Commissioner of the Ch 5 functions to the Bar Council and the Law Society respectively was dated 18 June 2015 (the 2015 delegation). Although no point was raised in the Tribunal, Mr de Robillard submitted that the referral of the Wells complaint to the Bar Council was void and of no legal effect because of deficiencies in the 2015 delegation, as subsequently identified by the Principal Member of the Occupational Division in a decision made on 25 June 2019: Council of the Law Society of NSW v DXW [2019] NSWCATOD 101.

3. [119]

   In DXW a complaint against a solicitor referred to as DXW was received by the Law Society of New South Wales on 22 September 2016, and on 23 September 2016 the Professional Standards Department of the Law Society sent a list detailing complaints (including the complaint against DXW) to the NSW Commissioner and requested the Commissioner to “activate [a] reference number and advise [the Professional Standards Department of the Law Society] in due course”: DXW at [22]-[26]. The operative terms of the 2015 delegation provided for the delegation by the NSW Commissioner of “a disciplinary matter which I have decided not to deal with or continue to deal with, which I refer to the relevant Professional Association for assessment, investigation and determination under Chapter 5 …” (see DXW at [18]). The “relevant Professional Association” was defined in the 2015 delegation to mean the Bar Association or the Law Society. The Principal Member found that the 2015 delegation was confined to a complaint which “has already been made to the Commissioner or made by the Commissioner” (at [48]), and therefore there was no complaint to form the basis of a disciplinary matter, and no basis to initiate proceedings in the Tribunal (at [50]).

4. [120]

   The Bar Council accepted in oral argument that the effect of DXW was that the Bar Council, like the Law Society, was unable to act on the delegation by the NSW Commissioner. The precise reasons why that was so was not explained in submissions; it seems to be that the NSW Commissioner had referred the Wells complaint to the Bar Association rather than the Bar Council, and there was an issue as to the power of the Bar Association to sub-delegate a referred complaint to the Bar Council.

5. [121]

   In any event, the Bar Council says that the delegation point is answered by the amendment to Sch 9 (Savings, Transitional and Other Provisions) of the Application Act introduced by the Justice Legislation Amendment Act (No 2) 2019 (NSW), with effect from 22 November 2019, which added cl 23 of Sch 9, the full terms of which are set out in Sch A to these reasons. The Explanatory Note to the amendment stated:

6. [122]

   The amendment provides, in terms, that the 2015 delegation is taken to be, and always to have been, validly made under section 406 of the Uniform Law, and validates any decision, determination, or other action of the Bar Council as an authorised sub-delegate of the Bar Association during the relevant period of 18 June 2015 to 22 November 2019, that would have been valid if sub-cll (1)-(3) of cl 23 had been in force at the time: cl 23(4)(a).

7. [123]

   The effect of the amendment is to validate the referral by the NSW Commissioner of complaints to the Bar Council relying on the 2015 delegation, including the Wells complaint. Mr de Robillard did not submit to the contrary.

8. [124]

   Although there is no ground challenging the Tribunal’s finding at S1[160]:

9. [125]

   It is said that the minutes of 14 May 2020 are not “proper” minutes because (i) the minutes do not identify the persons present at the meeting, and (ii) there is no evidence that the minutes of 14 May 2020 were subsequently approved. The challenge in this Court to the authenticity of the 14 May 2020 minutes must confront the following matters.

10. [126]

    First, there is a partial admission by Mr de Robillard in his reply to the amended application. As recorded at S1[3] and [8], the amended application included:

11. [127]

    Second, the complaints that the minutes of 14 May 2020 do not include the names of the persons attending the Bar Council meeting via Zoom conference and were not approved such as by signing by the Chair of the meeting or the Chair of the next meeting of the Bar Council, were matters which could have been taken up in cross-examination of Mr Tolhurst at the Stage 1 hearing but were not. Mr Tolhurst gave unchallenged evidence in par [36] of his affidavit that:

12. [128]

    Third, consistent with the partial admission by Mr de Robillard in his reply, and the absence of cross-examination of Mr Tolhurst, no submission was made by counsel for Mr de Robillard at the Stage 1 hearing that the 14 May minutes were inaccurate or lacked authenticity. There was no error by the Tribunal in finding that the Bar Council had resolved on 14 May 2020 to institute the disciplinary application against Mr de Robillard.

13. [129]

    Relevantly, the application filed on 10 November 2020 was in the prescribed form and correctly identified the nature of the application under the heading “Application”, being an application for a disciplinary finding and order under the “Legal Profession Uniform Law (NSW)”.

14. [130]

    The Bar Council accepted that the application did not identify the specific provision of the Uniform Law pursuant to which the application was made. However, that omission is of no consequence because the prescribed form did not require identification of the specific provision of the Uniform Law upon which the application was based. In any event, there could be no doubt that the application was made under s 300 of the Uniform Law; this was expressly stated in par [10] of the application.

15. [131]

    It is said that the application as filed was invalid because the relief sought in order [1] was not in the precise terms of s 302(1)(f) of the Uniform Law. That is correct, but this was later acknowledged and corrected by the Bar Council in the amended application filed on 10 September 2021, shortly prior to the commencement of the Stage 1 hearing.

16. [132]

    Mr de Robillard complained that this amendment was done “surreptitiously without telling me”, however, he withdrew this submission when queried by the Court. He asserted that he was not aware of the amendment to order [1], because it was not drawn to his attention in the covering email which enclosed the amended application. That submission was not supported by reference to the materials before this Court, nor was there any application by Mr de Robillard to adduce further evidence on appeal under s 75A of the Supreme Court Act.

17. [133]

    The assertion by Mr de Robillard that he was not aware of the amendment is difficult to reconcile with several matters. First, the amendment was highlighted in the usual manner by underlining, as was the amendment to par [13(k)] of the application, which Mr de Robillard accepted that he did read. Second, Mr de Robillard attended the Stage 1 hearing on 13 September 2021 (via AVL from his counsel’s chambers) when in opening senior counsel for the Bar Council expressly referred to the filing of an amended application and explained that the amended relief was sought in order [1] because the application had not “quite captured the legislation asking [for] a recommendation, we don’t need that order today but that’s the appropriate order”. Third, on the following day, 14 September 2021, Mr de Robillard signed a Reply to the amended application which said in par [1] that the (amended) orders sought by the Bar Council were opposed.

18. [134]

    But even assuming that Mr de Robillard was unaware of an amendment that would not affect the validity of the amended application, or the relief sought by the Bar Council in circumstances where counsel for Mr de Robillard did not object to the filing of the amended application or the terms of the relief sought in order [1] as amended. As a general rule, a party is bound by the conduct of his or her counsel, and counsel has a wide discretion as to the manner in which proceedings are conducted: R v Birks (1990) 19 NSWLR 677 at 683G (Gleeson CJ). This is such a case.

19. [135]

    Timing: it is said that there is a “temporal issue” in that the constituent members of the Bar Council changed from time to time and were not the same at either the time of the referral of the Wells complaint by the NSW Commissioner on 19 July 2017 or the date of the draft PCC report in July 2019 or the final PCC report in April 2020 or the date of the Bar Council’s decision on 14 May 2020 to institute disciplinary proceedings. The submission continued that “the legislature intended that the cohort known as members of a Bar Council would take personal responsibility for checking the nature of the application and the evidence related to the application, and that it would be started within a short span, within six months or 28 days”. There is no substance in these submissions.

20. [136]

    First, it is not in dispute that the constituent members of the Bar Council changed from time to time. The reference to the “Bar Council” in the Application Act means the Council of the Bar Association, being the NSW Bar Association: Application Act, s 3. This is to be understood as denoting the shifting body of constituent members of the Bar Council from time to time. There is no requirement in the Application Act that the constituent members of the Bar Council at the time of referral of a complaint by the NSW Commissioner to the Bar Council must be the same as the members of the Bar Council at the time of its decision to initiate disciplinary proceedings in the Tribunal, or indeed at the time of lodging the disciplinary application in the Tribunal.

21. [137]

    Second, s 137(1) of the Application Act says that a disciplinary application may be made to the Tribunal at any time within six months after the NSW Commissioner decides to initiate proceedings in the Tribunal with respect to the alleged conduct. In this case, the Bar Council as the delegate of the NSW Commissioner filed the application on 10 November 2020, being within six months of the Bar Council’s decision on 14 May 2020.

22. [138]

    Insofar as Mr de Robillard complains about alleged conduct of members of the “previous” Bar Council in their dealings with Mr de Robillard (grounds 13 and 14), these can be put aside. Such complaints are not relevant to the validity of the application filed in the Tribunal.

23. [139]

    Delay: the delay of nearly three years in the Bar Council’s assessment, investigation, and determination of the Wells complaint, is regrettable. Senior counsel for the Bar Council acknowledged that the material before this Court did not explain any particular step in the delay, other than (i) the time from December 2017 to March 2018 in seeking responses from Mr de Robillard to the Wells’ complaint and the s 371 notice, (ii) the time from July 2019 to November 2019 when progress on all matters relying on the 2015 delegation was suspended until the amendment to the Application Act, effective on 22 November 2019, and (iii) the time from February 2020 to April 2020 seeking a response from Mr de Robillard to the draft PCC report sent to him on 18 February 2020, which report was finalised by the PCC in late April 2020.

24. [140]

    Nevertheless, the delay by the Bar Council in dealing with the Wells complaint does not impact the validity of the application filed in the Tribunal. However, the delay is relevant to the exercise of the Court’s discretion concerning the application for removal.

Challenge to finding of professional misconduct

1. [141]

   The grounds challenging the finding of professional misconduct are general in nature. Together they amount to a claim that Mr de Robillard did not breach the specified provisions of the Barristers Rules, because Mr de Robillard was justified in making allegations against Mr Wells in 2016 proceedings.

2. [142]

   Addressing Ground 1 of the application, the Tribunal summarised the case advanced against Mr de Robillard and his essential response at S1[166]-[167] and [180]:

3. [143]

   The Tribunal found at S1[181]-[182]:

4. [144]

   It is not necessary to summarise the Tribunal’s reasons for rejecting Mr de Robillard’s asserted justification for the allegations made against Mr Wells relying on the 28 November 2014 letter from Mr Wells to Tony Ristovski (at S1[243]-[251]), or the subsequent inter-party correspondence during 2016 (at S1[252]-[256]). There is no ground of appeal or submission by Mr de Robillard challenging the Tribunal’s findings in relation to this correspondence from Mr Wells.

5. [145]

   Nor is there any direct challenge to the Tribunal’s findings that Mr de Robillard breached rules 60(a), 61(a), 64(a) and 65(a) for the reasons given at S1[218]-[233], which included:

6. [146]

   Further, there is no direct challenge to the Tribunal’s finding that Mr de Robillard breached rule 8(c) for the reasons given by the Tribunal at S1[234]-[256], which included:

7. [147]

   Mr de Robillard’s essential proposition on appeal is that the allegations made against Mr Wells in the 2016 proceedings were justified given the contents of (i) the 6 May 2016 email from Nadine Ristovski to Mr de Robillard, (ii) the Ristovski affidavit, and (iii) other affidavits filed in the 2015 proceedings.

8. [148]

   The Tribunal summarised the 6 May 2016 email and Mr de Robillard’s response at S1[213]-[214]:

9. [149]

   The 6 May email does not assist Mr de Robillard. He acknowledged in this Court that he had not obtained confirmation of the matters the subject of the 6 May email before the initiating documents and points of claim were filed in the 2016 proceedings. He sought to explain this omission as a consequence of Nadine Ristovski being unavailable to provide instructions, as she had gone on a holiday with her daughter to Thailand. Accepting that to be so, it provides no justification for Mr de Robillard making allegations of serious misconduct against Mr Wells without factual material which provided a proper basis for the allegations.

10. [150]

    The Tribunal summarised the contents of the Ristovski affidavit at S1[216]:

11. [151]

    The Tribunal further found that the Ristovski affidavit did not provide reasonable justification for the allegations made against Mr Wells in the 2016 proceedings, giving the following reasons at S1[257]-[258]:

12. [152]

    It is said that these findings are in error because the Tribunal disregarded the context in which Mr de Robillard made the allegations against Mr Wells in the 2016 proceedings, namely, the existing dispute between the parties to the 2015 proceedings. But the Tribunal did not ignore those contextual circumstances. The Tribunal had regard to the circumstances preceding the 2016 proceedings, commencing with the initial letter of demand from Mr Wells to Tony Ristovski dated 28 November 2014 and the subsequent inter-party correspondence relating to the claims made in the 2015 proceedings: at S1[183]-[212], [243]-[256].

13. [153]

    It is said that the Tribunal erred in disregarding other affidavits filed in the 2015 proceedings which were not before the Tribunal but were referred to in the Ristovski affidavit. The only affidavit referred to by Mr de Robillard was an earlier affidavit of Tony Ristovski sworn 11 April 2016 (the April affidavit), parts of which were summarised in the Ristovski affidavit at pars [14]f, [77]f and [100]f. Given that the April affidavit was not tendered by Mr de Robillard at the Stage 1 hearing, there was no error by the Tribunal in not considering material not put in evidence by Mr de Robillard.

14. [154]

    In any event, the relevance and materiality of the April affidavit was not demonstrated in this Court. First, insofar as the Ristovski affidavit referred in summary terms to parts of the April affidavit, nothing in that summary assisted Mr de Robillard’s submission that the Tribunal erred in finding that Mr de Robillard had engaged in professional misconduct. Second, no application was made by Mr de Robillard to put the April affidavit before this Court as further evidence on appeal pursuant to s 75A of the Supreme Court Act.

15. [155]

    The submission that material not in evidence before the Tribunal provided a justification for Mr de Robillard’s conduct was entirely speculative.

16. [156]

    It is said in asserted justification of the allegations of accessorial liability against Mr Wells in the 2016 proceedings, that the words “aid or abet” are wide words and “you don’t have to do an action to aid and abet” another party’s breach of duty. This submission fundamentally misstated the nature of accessorial liability under the Corporations Act.

17. [157]

    For a person to be “involved” in a contravention of the Corporations Act within the meaning of s 79(a) of the Corporations Act, the person must be an intentional participant in the contravention, the necessary intent being based upon knowledge of the essential elements of the contravention: Yorke v Lucas (1985) 158 CLR 661 at 667, 670; [1985] HCA 65. Although knowledge may be inferred from the fact of exposure to the obvious, that does not obviate the need for knowledge of the essential facts constituting the contravention: Giorgianni v The Queen (1985) 156 CLR 473 at 507-508; [1985] HCA 29.

18. [158]

    These principles direct attention to the state of mind of the individual in relation to the alleged contravention and how it is said that the individual participated with knowledge in the alleged contravention by another person. Here, the points of claim did not permit such a course, nor did the written submissions signed by Mr de Robillard dated 22 November 2016 confront this significant omission, which Mr de Robillard ultimately conceded before Black J (see [21] above).

19. [159]

    It is also said in asserted justification of the allegations against Mr Wells, that the Tribunal failed to have regard to the “urgency” of the matter in terms of the commercial interests of the plaintiff companies in the 2016 proceedings in obtaining urgent interim relief to restrain the conduct of Alex Ristovski alleged to be in breach of his duties as a director. That submission ignored the Tribunal’s reasons. The Tribunal did make allowance for the “apparent urgency” of the matter, but found at S1[231], that this did not provide a proper basis for making very serious allegations of misconduct against Mr Wells. There was no error in that finding.

20. [160]

    Nor was there any error in the Tribunal’s further finding at S1[231], rejecting Mr de Robillard’s “ends justifies the means” submission:

21. [161]

    It is said that the Tribunal focused “unduly” on sub-par (a) of each of the Barristers Rules found to have been breached, instead of undertaking a “holistic” consideration of each rule within the context of the “major premises” of the legislative scheme (ground 15), namely, the interests of the general public in having access to justice (ground 22). There are several difficulties with this contention.

22. [162]

    First, as the Tribunal found, r 8(c) of the Barristers Rules acknowledges the role played by each barrister in maintaining public confidence in the profession and the administration of justice and the strong element of public interest in the performance of the role, given counsels’ paramount duty to the administration of justice in the context of allegations: at S1[235]-[240]. See also: Legal Services Commissioner v Merkin [2019] QCAT 272, concerning rule 12(c) of the Barristers’ Conduct Rules 2011 (Qld) which is in the same terms as rule 8(c) of the Barristers Rules. As the Tribunal said in its conclusion at S1[282]:

23. [163]

    Second, as the Tribunal also found, the submission ignored the very special protection of advocates’ immunity which a barrister enjoys from civil suit arising from the conduct of a case in court: Giannarelli v Wraith (1988) 165 CLR 543 at 555 and 556; [1988] HCA 52. Further, as the Tribunal correctly observed at S1[241]-[242]:

24. [164]

    Third, the submission ignored the concessions made by Mr de Robillard at the hearing before Black J on 28 November 2016 (see [21] above). That Mr de Robillard sought to resile from those concessions on appeal demonstrated his lack of insight with respect to his conduct as counsel in the 2016 proceedings.

25. [165]

    Fourth, the submission misstated the objectives of the Uniform Law stated in s 3, and the objectives of Ch 5 stated in s 260. These are addressed at [199]ff below. In short, it is not the premise of the legislative scheme that the object of disciplinary action against legal practitioners is constrained by the interests of the general public having access to justice.

26. [166]

    The challenge to the Tribunal’s finding on Ground 1 of professional misconduct has not been made out.

Challenge to finding of unsatisfactory professional conduct

1. [167]

   In light of the facts that (a) the Bar Council abandoned reliance on its claim that Mr de Robillard be removed from the roll in the inherent jurisdiction of this Court and confined its claim to one based on the Tribunal’s recommendation, and (b) the Tribunal’s recommendation was based only on Ground 1, it is not necessary to address Ground 2. Even so, Mr de Robillard advanced a series of submissions directed to challenging the Tribunal’s finding of unsatisfactory professional conduct based on that ground, including asking this Court to infer in light of the sequestration order made against him on 17 August 2017 that he was unable to pay the $16,906.36 the subject of the costs assessor’s certificate which had been registered as a judgment on 7 June 2017.

2. [168]

   There is no utility in dealing with Mr de Robillard’s factual challenges, save to note that while it is not implausible that Mr de Robillard’s financial circumstances in the weeks prior to his bankruptcy were strained, it is unlikely to have been difficult for Mr de Robillard to adduce evidence about his financial circumstances in the weeks preceding his bankruptcy, yet he failed to do so.

3. [169]

   However, there may be some utility in addressing a point raised during the hearing concerning the operation of r 13(1)(q) of the General Rules, not least because the circumstances where a legal practitioner has been the subject of a personal costs order are apt to coincide with circumstances where disciplinary action may be considered or in fact brought against that legal practitioner. There appear to be some misconceptions in this area.

4. [170]

   Rule 13(1)(q)(i) authorised the Tribunal to have regard, when considering whether Mr de Robillard was a fit and proper person to hold a practising certificate:

5. [171]

   The Bar Association’s application before the Tribunal was narrowly circumscribed. Its complaint based on r 13(1)(q)(i) was confined to Mr de Robillard’s failure to pay the deemed judgment that came into existence upon the lodgment of the costs certificate in the Supreme Court. As drafted, that ground recognised that the order made by Black J did not of itself impose any duty which Mr de Robillard might contravene for the purposes of the rule. However, the reasons of the Tribunal at S1[262]-[280] directed to this ground seem to proceed on the basis that Mr de Robillard had contravened the order made by Black J on 28 November 2016. The Tribunal referred to Mr Wells being “put to further cost in respect of enforcement procedures, including the obtaining of the report from a costs assessor” and described Mr de Robillard’s response as “simply a case of a steadfast challenge at every stage”. The Tribunal also said at S1[274]:

6. [172]

   It will be seen that the Tribunal described Mr de Robillard as being subject to a “duty to pay the sums ordered”. It will also be borne in mind that if Mr de Robillard had paid Mr Wells the assessed amount of costs, it would have been within two months of his being made bankrupt, and so would be recoverable as a preference in proceedings brought by his trustee in bankruptcy. As events emerged, it was not possible for Mr de Robillard to pay from his own funds the amount of costs claimed by Mr Wells.

7. [173]

   But the question of principle that arises in relation to this ground turns not upon Mr de Robillard’s subsequent bankruptcy, but rather upon the juristic nature of deemed judgment created by filing the cost assessor’s certificate. The Bar Council embraced the proposition that Mr de Robillard was subject to a duty:

8. [174]

   Counsel did not return to the point.

9. [175]

   As was implicitly recognised by counsel’s response reproduced above, there was no contravention of the order made by Black J on 28 November 2016. The fact that the order was expressed to be “payable forthwith” engaged r 42.7(2) of the UCPR, with the consequence that the costs were payable despite the fact that the proceedings had not been concluded. Even so, the order was not enforceable until such time as it was quantified and had been filed in court. Until the costs assessor had determined the amount of costs, there was no enforceable obligation to pay any amount of money to Mr Wells. In short, there was an order, but it was not one which could be contravened for the purposes of r 13(1)(q).

10. [176]

    The effect of filing the costs assessor’s certificate was that it was taken to be a judgment of the Supreme Court, in accordance with s 70(5) of the Uniform Law, which provides:

11. [177]

    Accordingly, Mr Wells became a (deemed) judgment creditor, entitled to execute his judgment in familiar ways, including by serving a bankruptcy notice or lodging a writ on any real property owned by Mr de Robillard or seeking a garnishee order.

12. [178]

    However, contrary to the reasoning of the Tribunal at S1[274] which was adopted by the Bar Council, the existence of a judgment against Mr de Robillard did not mean that he was subject to a duty to pay it. Instead, he was liable to the various remedies to which a judgment creditor is entitled. Another way of expressing this is that the judgment creditor was empowered to exercise certain remedies against Mr de Robillard and his property. The difference between being subject to a duty and being amenable to the exercise of a power is basal. Even if one is unfamiliar with the analysis of Wesley Hohfeld, the inutility of any analysis of duty is obvious on a moment’s consideration: see W N Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, (1913) 23 Yale Law Journal 16. If there were a duty to pay a judgment debt, what is the sanction for breach? Another judgment?

13. [179]

    The consequence is that there are two reasons why r 13(1)(q)(i) was never applicable. First, there was no order. Secondly, there was no contravention.

14. [180]

    As to the first, the only order was that of Black J. But the order made by Black J was not an order which obliged Mr de Robillard to do anything. Nor, until such time as the costs had been assessed, was it capable of being enforced against Mr de Robillard.

15. [181]

    Although the report of the professional conduct committee referred to the “judgment/order” which issued from the Supreme Court following the lodgement of the costs assessor’s certificate, that is merely the title of the generic document. The terms of the certificate itself correctly, and consistently with s 70(5), describe it as a judgment.

16. [182]

    Secondly, there was no contravention. The amenability of a person to the various processes by which a judgment may be executed is distinct from the requirement in r 13(1)(q)(i) that there be a contravention. But only if there is some obligation to do something, or to refrain from doing something, can there be a contravention. There can be no contravention in the absence of an obligation.

17. [183]

    The foregoing is corroborated by the explicit provision made in the rules for whether the practitioner has been “an insolvent under administration”, a term which includes bankruptcy. If the approach taken by the Tribunal is correct, then every person who is made bankrupt based on a judgment debt will also be a person who has contravened a court order.

18. [184]

    The reasoning above concerning a court order to pay costs and its consequences is to be distinguished from a court order that a legal practitioner repay particular funds held on trust, or restore documents to a former client, or otherwise do or refrain from doing some act. Those are all examples of orders which may be contravened by a legal practitioner, thereby engaging r 13(1)(q). An intermediate case will arise where a gross sum costs order against a practitioner is made. Such an order is directly enforceable without the need to go to assessment. No view is expressed as to the operation of r 13(1)(q) upon those orders. The Tribunal’s finding of unsatisfactory professional conduct should be set aside.

Challenge to the Tribunal’s recommendation

1. [185]

   The grounds challenging the Tribunal’s recommendation that Mr de Robillard be removed from the roll were general in nature. Together they amount to a claim that the Tribunal:

   1. (1)

      failed to consider Mr de Robillard’s disciplinary record in a holistic manner;

   2. (2)

      failed to take into account that Mr de Robillard had already been punished;

   3. (3)

      engaged in an abuse of process in the conduct of the Stage 2 hearing; and

   4. (4)

      showed little regard for the “major premise” underpinning the Uniform Law.

2. [186]

   Neither party referred in submissions to the standard of appellate review of the Tribunal’s recommendation under s 301(1) of the Uniform Law. That provision says that, if the Tribunal finds that the lawyer is guilty of unsatisfactory professional misconduct or professional misconduct, the Tribunal “may” make any orders that it thinks fit, including any one or more of the orders specified in sub-pars (a) to (l) of s 301(1). Plainly the Tribunal has a discretion in determining what protective order, if any, is appropriate in the circumstances. The nature of that task does not call for a unique outcome; it is a finding for which there is not one correct answer, adopting the language of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [49]. It is an evaluative judgment to which the House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 deferential standard of appellate review applies.

3. [187]

   For the reasons that follow, the challenge to the Tribunal’s recommendation should be rejected.

4. [188]

   It is said that the Tribunal erred in focusing only on the prior adverse findings made against Mr de Robillard in relation to practice as a barrister within “a short period” leading up to the cancellation of his practising certificate on 21 June 2018.

5. [189]

   The prior adverse findings against Mr de Robillard arose from several complaints against him in the period August 2016 to October 2018. The Tribunal summarised the circumstances of these complaints (at S2[237]) and noted (at S2[238]) that Mr de Robillard had been the recipient of five reprimands, one caution, and was required to provide an undertaking in relation to the complaint that he had represented that he was a barrister in January 2019, when he no longer had a practising certificate. Those findings were:

   1. (1)

      on 12 October 2017, following a complaint referred by the NSW Commissioner, the Bar Council found that Mr de Robillard had breached r 54 of the Barristers Rules in communicating by email dated 19 July 2016 addressed to the Principal Registrar of the Family Court of Australia, and the Bar Council made an order to reprimand him;

   2. (2)

      on 11 October 2018, following upon a complaint by a client (Client A), the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in failing to provide the client with monthly updates about his case and in failing to progress the client’s case by taking action against a financial institution despite being paid $10,000 by the client, and made an order reprimanding him and also that he return to Client A the $10,000 fee he had received;

   3. (3)

      on 9 November 2018, following a complaint by the Bar Council on 8 June 2017 arising out of the investigation by a PCC of the complaint by Client A, the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in (i) receiving trust monies from Client A in breach of s 252 of the Legal Profession Act, (ii) receiving and disbursing funds to himself without accounting to his client, (iii) failing to comply with r 24B of the Barristers Rules (6 January 2014) then in force, and (iv) failing to comply with a notice issued pursuant to s 371 of the Uniform Law, and made an order that Mr de Robillard be reprimanded;

   4. (4)

      on 6 June 2019, following a complaint by a client (Client B), the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in legal proceedings involving a money claim by a plaintiff against the Australia Africa Business Council (AABC) of which he was President, in seeking to disavow AABC’s liability to pay the debt occurred in circumstances where there were no reasonable grounds on the basis of proof or facts or a reasonably arguable view of the law to support the defence propounded by Mr de Robillard on behalf of the AABC that it was not a party to the arrangement and/or not liable for the debt. The Bar Council further found that Mr de Robillard’s conduct breached Barristers Rules, rr 101(f) and (g) by retaining the brief from the AABC in circumstances where he, on any view, knew that defence of the case would bring his own conduct into question and in circumstances where he had a financial interest given that he might be found liable for the debt and this conduct also amounted to unsatisfactory professional conduct. The Bar Council made an order that Mr de Robillard be reprimanded;

   5. (5)

      on 24 August 2020, arising out of the complaint by Client A, the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in failing to make a costs disclosure to Client A, contrary to ss 309 and 311 of the Legal Profession Act, and made an order that Mr de Robillard be cautioned; and

   6. (6)

      on 20 August 2020, the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in failing to comply with the s 371 notice issued on 23 January 2018 in relation to the Wells complaint (see [30] above) and made an order reprimanding him.

6. [190]

   The Tribunal took this disciplinary history into account as demonstrating that Mr de Robillard’s conduct, as found in the Stage 1 reasons, (i) was not an isolated instance of unprofessional conduct, (ii) was an extensive history, (iii) reflected a period of repeated failure to meet his obligations as a barrister, (iv) the previous disciplinary orders had had little deterrent effect on him, and (v) was not addressed or explained by Mr de Robillard; rather he claimed that he was the subject of a “vendetta” by the previous CEO of the Bar Association (at S2[386(10)-(20)]). That characterisation of the prior adverse findings was well-open to the Tribunal on the evidence before it.

7. [191]

   Mr de Robillard said that he has already been punished because (i) he has not practised as a barrister since July 2018, and (ii) his reputation had been damaged by the reporting of the disciplinary proceedings. He said that his work with government authorities in Kenya, Mauritius, Siera Leone and Côte d’Ivoire stopped in early 2020 after anonymous letters were sent to various ambassadors alleging that he had been struck off as a barrister and could not be trusted.

8. [192]

   The Tribunal had regard to both of these matters and that Mr de Robillard had been the subject of adverse publicity and his reputation had been damaged (at S2[386(22)-(24)]). Again, no error has been demonstrated.

9. [193]

   It is said that the conduct of the Tribunal on 22 and 23 August 2022, including the senior member of the Tribunal as from 22 August 2022, “behaving very badly”, and having an argument with the presiding member (ground 9) amounted to an “abuse of process” by the Tribunal which brought the administration of justice into disrepute.

10. [194]

    When asked by the Court to provide transcript references, Mr de Robillard said that he did not know whether the transcript reflected what he alleged had occurred at the Stage 2 hearing. He asserted that there was a “problem” with the transcript but undertook to provide a transcript reference for his submission that the senior member was “behaving very badly”. No transcript reference(s) was provided to the Court on the second or third day of the hearing.

11. [195]

    A related submission was made that the Tribunal’s decision was beyond power because (i) the Tribunal did “various things which contradict the purpose for which the power was given”, and (ii) the Tribunal “misused” the power it was given under the Uniform Law by using its power in a way that “achieved the contrary result for which the power was granted”, being the protection of the public against a lawyer.

12. [196]

    As to (i), none of the “various things” alluded to by Mr de Robillard were identified in his submissions. As to (ii), the complaint about misuse of power is really a complaint that Mr de Robillard disagrees with the Tribunal’s decision. That Mr de Robillard does not accept the Tribunal’s decision that the protection of the public would be served by his removal from the roll, does not mean that the Tribunal misused its power in making that recommendation. That does not demonstrate error in the Tribunal’s recommendation.

13. [197]

    Further, the assertion that the Tribunal misused its power conferred by s 302(1)(f) of the Uniform Law ignored the reasons given by the Tribunal when making the recommendation that Mr de Robillard be removed from the roll, namely (i) to “protect the public”, (ii) to serve as a sufficient deterrent to other lawyers, and (iii) “in order to uphold the confidence and respect of the public in the legal profession as a whole”: at S2[387].

14. [198]

    Those reasons accord with the well-established jurisdiction of the Tribunal in disciplinary matters to protect the public and not to punish the legal practitioner, keeping in mind the high standards required of legal practitioners in the practise of their profession. This includes protection of the public against similar defaults by other practitioners, and publicly marking the seriousness of what the practitioner has done, and whether the practitioner is a fit and proper person to be held out by the court as such: The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441A-C, 444C-G (Mahoney JA), 470-471 (Giles AJA), a disciplinary case against a solicitor under the 1987 Act.

15. [199]

    It is said that the Tribunal showed little regard for the “major premise” underpinning the Uniform Law, namely the interests of the general public in having access to justice (ground 22). Contrary to the so-called “major premise”, the objectives of the Uniform Law are stated in s 3, and relevantly include:

16. [200]

    It is also said that the Tribunal’s decision and actions of the Bar Council could adversely affect public respect for and confidence in the administration of justice, unless the Tribunal’s decisions are set aside (ground 23). This misstates the position. Chapter 5 of the Uniform Law is concerned with “dispute resolution and professional discipline”. It contains s 260 which states the three objectives of Ch 5, as follows:

17. [201]

    The Tribunal’s decisions were made in performance of its disciplinary function of regulating the conduct of legal practitioners. There is no basis in the evidence for the contention that the Tribunal’s decisions adversely affected public respect for and confidence in the administration of justice.

18. [202]

    It is said that the Tribunal chose not to enquire about “some extraordinary statements, far more offensive than those the subject of the Tribunal proceedings”, which were contained in the reply filed by Mr de Robillard on 25 January 2021, but were not the subject of cross-examination by senior counsel for the Bar Council (ground 11).

19. [203]

    Although no written or oral submissions were made in support of this ground, the absence of cross-examination of Mr de Robillard on “far more offensive” statements is unsurprising, given that the contents of the reply filed 25 January 2021 were not relied upon by Mr de Robillard at the Stage 1 hearing, except par 35(a) relating to the Bar Council’s “standing” to be a party in the Tribunal.

20. [204]

    The challenge to the Tribunal’s recommendation has not been made out. For the avoidance of doubt, if the correctness standard of review applied on appeal, I would reach the same conclusion in this case.

REVIEW OF ORDERS OF THE REGISTRAR

1. [205]

   The nature of a review of a decision of a Registrar of the court under s 121(3) of the Supreme Court Act 1970 (NSW) and UCPR, r 49.19 was considered in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [4]-[10] (Hodgson JA, Ipp JA agreeing), [52]-[53] (Basten JA). A review of a decision of a Registrar is not an appeal and in such a review the Court must exercise its own discretion. This discretion extends to whether, and if so, how to intervene.

2. [206]

   The onus is on the applicant seeking to have the Court set aside or vary a Registrar’s decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so: Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [18] (Hodgson JA). With respect to a decision on practice or procedure, this will normally require at least a demonstration of error of law or error of the kind referred to in House v The King at 504-505.

3. [207]

   The costs order made by the Registrar on 21 September 2023 in favour of the Bar Council followed an order made on the Bar Council’s motion filed 10 August 2023 in the terms sought that Mr de Robillard communicate solely with Hicksons Lawyers in relation to the appeal proceedings and the summons proceedings. In her reasons, the Registrar observed that the parties did not provide written submissions on costs and that a costs order would ordinarily be made in the circumstances: at [12]. That was consistent with the usual rule in UCPR, r 42.1 that costs follow the event, unless there is reason to order otherwise.

4. [208]

   The application to review the September 2023 costs order is out of time, as the motion was filed more than 28 days after the order was made: UCPR, r 49.20(2). The Court may extend time under this sub-rule at any time r 49.20(4). The considerations of general relevance to an extension of time are: (1) the length of the delay, (2) the reason for the delay, (3) whether the applicant has a fairly arguable case, and (4) the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) at [55].

5. [209]

   Here, the delay of five months in challenging the costs order is both lengthy and unexplained. Nor does Mr de Robillard have a fairly arguable case to set aside the costs order. His contention that the Bar Council is not a party to the appeal and therefore cannot obtain an order for costs in its favour on its successful motion is misconceived. No other basis for challenging the Registrar’s discretionary decision on a matter of practice or procedure has been identified. An extension of time to challenge the costs order made on 21 September 2023 should be refused.

6. [210]

   On 29 January 2024 the Registrar made an order extending time for Mr de Robillard to file and serve his written submissions on the appeal by 5:00 pm on 5 February 2024 (order 1), and a self-executing order that in the event of failure to comply with order 1, the proceeding was dismissed (order 2). The self-executing order was made in circumstances where Mr de Robillard had previously failed on two occasions to comply with directions made by the Registrar on 25 September 2023 and 11 December 2023 for the filing of submissions in chief on the appeal by specified dates (30 November 2023, and 15 December 2023 respectively).

7. [211]

   Mr de Robillard failed to comply with order 1 made on 29 January 2024; his written submissions were filed on 6 February 2024, by email at 10:00 am addressed to the Registrar, copied to the solicitors for the Bar Council. In his email, Mr de Robillard stated that he had not been able to file his submissions in the Registry “by close of business yesterday as ordered”, he apologised for that failure and proffered as an explanation that he had been suffering from the after-effects of a serious Covid infection. However, given the earlier guillotine order, the Registrar considered that the proceeding had already been dismissed and made a confirmatory order on 6 February 2024:

8. [212]

   The Bar Council neither consented to nor opposed the discharge of order 2 made by the Registrar made on 29 January 2024 and the further order made by the Registrar on 6 February 2024 confirming dismissal of the appeal proceedings.

9. [213]

   Given the minor delay in complying with order 1 made on 29 January 2024, and the absence of any prejudice to the Bar Council arising from the non-compliance, it is in the interests of justice that Mr de Robillard be permitted to pursue his appeal, the substance of which has been addressed above. Accordingly, order 2 made by the Registrar on 29 January 2024 and the further order made by the Registrar on 6 February 2024 should both be set aside.

10. [214]

    The appeal has failed except with respect to the Tribunal’s finding on ground 2 of unsatisfactory professional conduct. As to costs, other than the costs of the appeal relating to the Tribunal’s finding on ground 2, in respect of which each party should pay his or their own costs since the error in the Tribunal’s finding was not a matter identified in the appellant’s grounds or submissions on appeal, there is no reason why costs should not follow the event: UCPR, r 42.1.

11. [215]

    Insofar as Mr de Robillard has failed on his motion, he should pay the costs of pars [1] and [3] of the motion relating to the unsuccessful challenge to the costs order made on 21 September 2023. To the extent that Mr de Robillard has succeeded on the motion in setting aside order 2 made on 29 January 2024 and the further order made by the Registrar on 6 February 2024, no costs order should be made on the motion given that Mr de Robillard sought an indulgence, and that part of the relief sought in the motion was not opposed by the Bar Council.

REMOVAL FROM THE ROLL

1. [216]

   The Supreme Court is required by s 22 of the Uniform Law to maintain a roll of Australian lawyers for this State. Section 23(1) of the Uniform Law empowers the Supreme Court to order the removal of the name of a person from the Supreme Court roll, on:

2. [217]

   The Bar Council’s application for a removal order relied solely upon s 23(1)(c), the recommendation of the designated tribunal, which in this jurisdiction is the Tribunal (Application Act, s 11(3), Table 2). As indicated, the Bar Council abandoned reliance on the inherent jurisdiction of the Court.

3. [218]

   Mr de Robillard raised two anterior issues with respect to the application for a removal order: first, the standing of the Bar Council to apply for such an order, and second, the significance of the findings of the Tribunal and its characterisation of Mr de Robillard’s conduct as professional misconduct.

4. [219]

   As explained above, the local regulatory authority for this jurisdiction is the NSW Commissioner and the Bar Council is the delegate of NSW Commissioner with respect to the Commissioner’s Ch 5 functions, which include disciplinary matters against a barrister. Further, by s 35 of the Application Act the “local regulatory authority” may appear before any court in any matter affecting the local regulatory authority in which it is “concerned or interested”.

5. [220]

   The application for a removal order under s 23(1)(c) of the Uniform Law is properly brought by the Bar Council as the moving party in the Tribunal because the Tribunal’s recommendation is a matter affecting the Bar Council in which it is “concerned or interested” having sought and obtained that order under s 302(1)(f) of the Uniform Law, as the delegate of the NSW Commissioner exercising the Commissioner’s Ch 5 functions.

6. [221]

   That the Bar Council has standing to apply for a removal order under s 23(1)(c) is recognised by the provisions of the Application Act. By s 53(1)(l), the costs and expenses of a Council, which includes the Bar Council, in relation to any proceedings “in … the Supreme Court” with respect to the discipline of a legal practitioner may be paid from the Public Purpose Fund. The summons seeking a removal order answers that description.

7. [222]

   Mr de Robillard submitted that this Court should make its own findings on the material before it and not be bound or influenced by the findings of the Tribunal. The Bar Council argued to the contrary, referring to 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 (Brereton JA, Leeming and White JJA agreeing); Council of the Law Society of New South Wales v Leslie [2021] NSWCA 59 (Macfarlan, White and McCallum JJA); and Law Society of the Australian Capital Territory v Powrie (2017) 12 ACTLR 184; [2017] ACTSCFC 4.

8. [223]

   In Yoon at [22], [32]-[33], the Court (Bell P, Ward and White JJA) found, that in the absence of any challenge to the Tribunal’s findings by way of an appeal by the practitioner, this Court should accept those findings and the Tribunal’s characterisation of the practitioner’s conduct. That approach was accepted and applied in Leslie at [30].

9. [224]

   In Clifton at [8], Brereton JA said that although the current regime in the Uniform Law no longer confers the ultimate power of removal from the roll on the Tribunal, but reserves it to the Court, albeit upon the recommendation of the Tribunal, the Court is not required to “revisit, review or rehear proceedings that had been heard on a final basis by the Tribunal”.

10. [225]

    A similar view has been taken in Powrie where the Full Court of the Supreme Court of the Australian Capital Territory rejected the submission by the legal practitioner that the Court should engage in a review of the determinations of the designated tribunal as to whether the conduct constituted professional misconduct or unsatisfactory misconduct, given the availability of appeals from such determinations.

11. [226]

    In this case, I have concluded that Mr de Robillard’s appeal from the Tribunal’s finding of professional misconduct and recommendation under s 302(1)(f) of the Uniform Law should be dismissed. On that assumption this Court can proceed on the basis that Mr de Robillard has been found guilty of the relevant breaches of the Barristers Rules and the Tribunal’s characterisation of that conduct as professional misconduct.

12. [227]

    Nevertheless, the Court is not bound to follow the Tribunal’s recommendation that the practitioner’s name be removed from the roll. As observed in Leslie at [30], the Court “retains the responsibility to be satisfied that the orders sought are appropriate on the facts found”. That is, the Court must independently exercise the power under s 23(1)(c) of the Uniform Law on the evidence and material before it.

13. [228]

    The Bar Council relied upon all of the evidence that was before the Tribunal at the Stage 2 hearing, including documentary evidence tendered by Mr de Robillard (who did not give affidavit evidence at the Stage 2 hearing), namely:

    1. (1)

       affidavit evidence of Mr de Robillard’s disciplinary history contained in the affidavit of Andreas Heger dated 28 January 2022, together with the transcript of cross-examination of Mr Heger, and a supporting affidavit of Christopher Moore dated 27 September 2022, together with the transcript of cross-examination of Mr Moore; and

    2. (2)

       six documents tendered by Mr de Robillard comprising:

14. [229]

    The prior disciplinary findings against Mr de Robillard have been summarised at [188] above. The contents of the documentary evidence tendered by Mr de Robillard before the Tribunal was summarised by the Tribunal (at S2 [305]-[313]). It is not necessary to refer to that summary as no submissions were made with respect to those documents by either party.

15. [230]

    Mr de Robillard did not give evidence in this Court, but he tendered a bundle of documents of 185 pages (Ex 1) containing character references, newspaper articles and material relating to his time in Vanuatu in 1997, and articles (some written by him) and miscellaneous documents. He also tendered the original of a handwritten letter dated 8 December 1995 addressed “Dear Roger” (Ex 2), the first page of which was included in Ex 1 at tab 30.

16. [231]

    Character evidence: the personal references fall into several categories: first, there are personal references that speak of Mr de Robillard’s general character as a friend and are very supportive of him notwithstanding the general understanding of the referees of the finding in the Tribunal that Mr de Robillard is guilty of professional misconduct. There are 13 such personal references (tabs 1, 3, 4, 5, 6, 8, 13, 16, 17, 18, 19, 20 and 22 of 1). Tab 21 contains a personal reference that does not speak specifically to the allegation against Mr de Robillard.

17. [232]

    Second, there are personal references from friends who also have legal training or qualifications. There are four such references (tabs 7, 9, 10 and 11 of 1). Whilst these are supportive of Mr de Robillard, none of these references speak specifically to the allegation against Mr de Robillard.

18. [233]

    Third, there is a personal reference from Mr Stewart Woodman, emeritus professor in Politics and Strategic Studies, University of New South Wales, Canberra, which speaks of his knowledge of political unrest in Vanuatu in 1998 (in fact 1997) when Mr de Robillard was imprisoned for a short period in Vanuatu, which the author understood, incorrectly, was a matter that may be raised in relation to his fitness to practice (tab 15 of 1). Whilst supportive of Mr de Robillard, the author acknowledged that he is unaware of Mr de Robillard’s work as a lawyer, except by way of general knowledge that he was in great demand to work in the international arena.

19. [234]

    Fourth, there is a personal reference from a former client of Mr de Robillard in Local Court proceedings in October 2014, which is supportive of him but does not speak specifically to the allegation against Mr de Robillard (tab 12 of 1). There is also a “thank you” letter from an instructing solicitor in 1999 (tabs 12 and 14 of 1).

20. [235]

    Other documents: the other documents in Ex 1 provide background context to Mr de Robillard’s previous dealings with the Bar Council, past officers of the Bar Association, and past Presidents of the Bar Council. Such documents are of either marginal or no relevance to the question for this Court, namely, whether Mr de Robillard is not a fit and proper person to practice and is likely to remain so for the indefinite future. These include documents relating to:

    1. (1)

       the circumstances of Mr de Robillard’s arrest and imprisonment in Vanuatu in March 1997, his conviction for contempt of court and sentence of imprisonment for two months, and his successful appeal against conviction in May 1997, represented by Mr Michael Adams QC and Ms Nicole Abadee of counsel (tabs 24, 25, 26, 31, 32, 33, 36, 37 and 38, Exhibit 1);

    2. (2)

       Mr de Robillard’s past dealings with the NSW Bar Association or Bar Council, including Mr Selth, a former Executive Officer of the Bar Association, and various past Presidents of the Bar Association (tabs 27, 28, 29, 30 and 47 of 1);

    3. (3)

       a statement by Mr John Murphy MP in the Commonwealth Parliament on 25 May 2006 correcting an earlier statement by the member which had incorrectly named Mr de Robillard in association with other barristers as having committed serious tax offences (tab 46 of 1); and

    4. (4)

       copies of two unreported decisions in which Mr de Robillard appeared as counsel, one in 1999 in the Federal Court of Australia, and the other in 2011 in this Court (tabs 49 and 50 of 1).

21. [236]

    The ultimate question for this Court is whether Mr de Robillard is a fit and proper person to remain on the roll. Given that legal practitioners have heavy responsibilities and particular privileges which must be properly exercised in the interests of justice and of maintaining public confidence in the legal profession, the Court is concerned to ensure that only fit and proper persons, once admitted, continue in practice as officers of the Court.

22. [237]

    In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-8; [1957] HCA 46, Kitto J said of the expression “a fit and proper person”:

23. [238]

    In the determination of that question this Court acts on established principles reflecting the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of the practitioner: NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [26]. The object of protection of the public includes deterring others who might be tempted to fall short of the high standards required of them. As Giles AJA said in Foreman at 471:

24. [239]

    Thus, proceedings of this kind serve the purpose of maintaining public confidence in the administration of justice; that purpose having aspects of public accountability as well as deterrence: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [59].

25. [240]

    The conduct or circumstances which may establish that a person is no longer a fit and proper person to be on the roll include professional misconduct. Serious professional misconduct may be sufficient to make a finding of lack of fitness and propriety and consequent removal but, as indicated, this must be for protective reasons and not as punishment of the individual.

26. [241]

    Removal from the roll is the appropriate order where it is demonstrated both that the lawyer is presently not fit to practise and is likely to be unfit for the indefinite future: Green at [67]. Consideration of whether a practitioner’s unfitness to practice is likely to be indefinite allows consideration of whether a less severe order such as suspension (for example), is appropriate: Legal Services Commissioner v Rushford (2012) 38 VR 141; [2012] VSC 632 at [23].

27. [242]

    The practice history of Mr de Robillard is that after his admission to the roll of Barristers (as it then was) on 10 March 1988, he was issued with a practising certificate as a barrister in New South Wales on 26 August 1991 and held a practising certificate for the following periods:

    1. (1)

       26 August 1991 to 8 September 1993 (subject to conditions imposed on pupils by the Rules of the NSW Bar Association);

    2. (2)

       8 September 1993 to 6 March 2002 (unrestricted);

    3. (3)

       16 August 2002 to 21 February 2003 (subject to conditions regarding compliance with tax obligations);

    4. (4)

       27 March 2003 to 12 August 2005 (subject to conditions regarding compliance with tax obligations); and

    5. (5)

       12 August 2005 to 29 June 2018 (unrestricted).

28. [243]

    Mr de Robillard has not held a practising certificate as a barrister since 29 June 2018: see [33] above.

29. [244]

    The conditions referred to in [242(3) and (4)] above can be put aside. Although referred to its written submissions, these conditions were not pressed by the Bar Council in oral argument as being relevant to Mr de Robillard’s current fitness to practise.

30. [245]

    In Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 200-201; [1960] HCA 40, the joint judgment of Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ spoke of the privilege enjoyed by counsel which must not be abused:

31. [246]

    The conduct of Mr de Robillard the subject of the Tribunal’s finding of professional misconduct involved Mr de Robillard repeatedly alleging that Mr Wells had commenced and used legal proceedings for an improper purpose. That allegation was very serious, and at no time did Mr de Robillard present to the Court in the 2016 proceedings any evidence that it was true. Rather, at the hearing before Black J on 28 November 2018, Mr de Robillard made the concessions referred to at [21] above.

32. [247]

    The conduct of Mr de Robillard was of the most serious kind. As the Tribunal said when summarising its finding of professional misconduct (at S1[282]), there was no reasonably available factual foundation for joining Mr Wells to the 2016 proceedings or for the serious allegations of misconduct levelled against him. The inevitable consequence of joining Mr Wells where he was acting for one of the defendants was that he would be required to cease acting for his client, in addition to having to defend himself against those very serious allegations.

33. [248]

    Although the evidence does not rise to the level to permit a finding that the object of Mr de Robillard’s claims against Mr Wells was to intimidate him to cease to act for his client (cf Clyne at 199), it is obviously unfair and improper in the highest degree for a barrister in Mr de Robillard’s position to make very serious allegations of misconduct against an opposing solicitor that were not reasonably based on the material then available to the barrister hoping, in the absence of such material, that mere assertion would suffice to permit his client to obtain interlocutory relief against the other party, including Mr Wells when such allegations would inevitably lead to Mr Wells ceasing to act for his client.

34. [249]

    Mr de Robillard’s disciplinary history is summarised at [188] above. None of the prior adverse findings were disputed by Mr de Robillard in this Court. It is said, however, that the failure to respond to the Bar Association’s requests for information, various draft reports, and s 317 notices in relation to earlier complaints and the Wells complaint, was due to “previous difficulties in dealing with the Bar Association”. Mr de Robillard described himself as having been “in a constant struggle with them”. He said in oral argument:

35. [250]

    This misses the point. The prior adverse findings constituted a period of repeated failure by Mr de Robillard to meet his obligations as a barrister between 2016 and 2018; at that time Mr de Robillard was an experienced counsel, having been in practice as a barrister for about 25 years. He offered no explanation for his disciplinary history but suggested an abuse of power or a vendetta against him by the Bar Council. There is no evidence that supports that assertion.

36. [251]

    The character evidence is supportive of Mr de Robillard, however, such evidence can only be given little weight. It does not speak specifically to either the allegation against Mr de Robillard the subject of the Tribunal’s finding of professional misconduct, or the allegations against Mr de Robillard the subject of the prior adverse findings against him.

37. [252]

    Mr de Robillard said that he has been adequately punished by the loss of his reputation, and financially, as he has not been able to practise as a barrister since mid-2018 when his practising certificate was cancelled. The later circumstance was a consequence of a “show-cause” event related to his bankruptcy, not the disciplinary proceedings brought by the Bar Council. Nevertheless, accepting that there has been damage to Mr de Robillard’s reputation from adverse publicity and loss of income as a barrister over six years, the more significant point is that throughout the period since mid-2018 Mr de Robillard has shown no substantial remorse or regret for his conduct.

38. [253]

    Whilst Mr de Robillard acknowledged some wrongdoing on his part in his final submission at the Stage 2 hearing before the Tribunal, the Tribunal found that he was still not accepting full responsibility for his conduct (S2[386(30)]). He failed to acknowledge before the Tribunal his conduct the subject of prior adverse findings of unsatisfactory professional conduct, and instead, attributed those prior adverse findings to the influence of others conducting a vendetta against him. Nor did he demonstrate before the Tribunal insight that he understood what was improper about such conduct, how he came to behave in that manner, and what he has done or will do to ensure that no such circumstance will occur again (S2[386(29)]).

39. [254]

    That remained the position in this Court. In response to the summons seeking a removal order, Mr de Robillard continued to display a lack of insight and absence of contrition. His failure to accept and understand the impropriety of his conduct in breach of the Barristers Rules is relevant to whether he should be permitted to remain on the roll: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; [1968] HCA 20. The misconduct by Mr de Robillard goes to the core of his professional obligations as an advocate and officer of the Court.

40. [255]

    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.

41. [256]

    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.

42. [257]

    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.

43. [258]

    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.

44. [259]

    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.

45. [260]

    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.

46. [261]

    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.

47. [262]

    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.

48. [263]

    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]:

49. [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

1. [265]

   I propose that the following declaration and orders be made:

   1. (1)

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

   2. (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. (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. (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. (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. (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.

   7. (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.

   8. (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.

   9. (3)

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

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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:

9. [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:

10. [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”.

11. [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.

12. [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.

13. [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?

14. [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.

15. [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.

16. [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]:

17. [281]

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

18. [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.

19. [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].

20. [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.

21. [285]

    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.

22. [286]

    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.

23. [287]

    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.

24. [288]

    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.

25. [289]

    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.

26. [290]

    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.

27. [291]

    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.

28. [292]

    GRIFFITHS AJA: I agree with Gleeson JA.