Council of the New South Wales Bar Association v de Robillard

NCAT Occupational|2022-10-18

REASONS FOR DECISION

The Council of the New South Wales Bar Association ("the Council") made an application on 28 September 2022 for the following interlocutory orders: 1. That the Respondent communicate solely with Hicksons Lawyers in relation to the Applicant's conduct of this matter and does not communicate (including by email or telephone) with any member of the Applicant. 2. That the Respondent pay the Applicant's costs of this application. 3. Such further or other orders as the Tribunal deems fit.
Mr de Robillard opposes the interlocutory application.
The hearing of the interlocutory application began on 14 October 2022. After a brief hearing, it was adjourned to 18 October 2022 to give Mr de Robillard further time to produce written submissions, and to allow the Council to consider the purpose and wording of the order sought. The hearing concluded on 18 October 2022.
The Council relied upon an affidavit of Mr Moore sworn on 27 September 2022 and filed on 28 September 2022, which had exhibited to it a bundle of correspondence, including emails. The Council also relied upon an affidavit of Ms Stevenson, affirmed on 17 October 2022.
Both parties provided written submissions and also made oral submissions.
The substantive proceedings are an Application for disciplinary findings and orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') in relation to Mr de Robillard. A decision in relation to culpability has been published (see Council of the New South Wales Bar Association v de Robillard [2021] NSWCATOD 207). The panel hearing the substantive proceedings is comprised by Acting Judge Le Poer Trench, Senior Member Dixon SC and General Member Porter. A hearing in relation to the issue of disciplinary orders proceeded before the same panel on 22 and 23 August 2022 and is listed to continue on 24, 25 and 26 October 2022.

Mr de Robillard's recusal application

On the 18 October 2022, the second day of the hearing of the interlocutory application, Mr de Robillard asked me to recuse myself.
On 14 October 2022, the first day of the hearing of the interlocutory application, I discussed with the parties whether the form of wording of the order sought accurately reflected the Council's purpose in seeking the order. I also discussed with Mr de Robillard whether some of his objections to the order could be addressed by changes to the wording of the proposed order. At all times, I made it clear that I did so in order to clarify the issues in dispute between the parties.
Mr de Robillard said, in his written submissions: 6. It is submitted that at the hearing of 14 October 2022, her Honour clearly "descended into the fray", used judicially inappropriate words to the effect: "It's none of your business" and started proceedings by suggesting to Counsel appearing for each member the Council of the NSW Bar Association what each member must really have meant even though the words, as used, did not convey the meaning which her Honour believed they should have conveyed. Essentially her Honour was reframing the case for members of the Bar Council without seeking any explanation from Counsel, which included Senior Counsel retained by the members of the Bar Council to explain how such an incompetently drafted application could have been filed" (Mr de Robillard's written submissions, paragraph 6). 7. Her Honour's failure to require the members of the Bar Council to explain the incompetence of their application and her Honour's several attempts to draft alternative applications on behalf of members of the Bar Council would raise in the relevant bystander the apprehension that her Honour had pre-determined the key issue: Did the Tribunal have power to make the order? 8. The relevant bystander would understand each and every member of the Bar Council is generally considered among the leaders of the profession who did not need her Honour to explain to them how the orders in their application should be drafted. 9. The relevant bystander would also apprehend that, by suggesting an order in terms which sounded more reasonable that that drafted by members of the Bar Council, her Honour would have assisted members of the Bar Council by making my rejection of her Honour's proposed amended draft seem unreasonable and further, had I agreed to the amended draft and the orders made, could influence any putative Court of Appeal judge to form the preliminary impression that I was an unreasonable person because of the need for the Tribunal to make the order…. 10. By assisting the members of the Bar Council to draft the terms of their Orders, her Honour was improperly increasing the inequality in resources available to me, as an unduly stressed and self-represented litigant relative to those made available (at the expense of the Crown in right of the State of New South Wales) to the members of the Council at no cost to each member of the Council but at great costs, financial and otherwise to me and more generally to members of the general public….
Near to the conclusion of the hearing on 14 October 2022, Mr de Robillard was insisting that counsel for the Council tell him the name of the individual at the Council who had given instruction in relation to a certain issue. This was of no assistance to me in the hearing of the interlocutory application, and so I asked him to stop asking the question. When he persisted, I indicated that the identity of the person was none of his business.
The principles relevant to an application for recusal on the basis of apprehended bias are conveniently summarised in NSW Education Standards Authority v Yeshiva College Bondi Limited [2022] NSWCATAP 160 at [70]-[75]: 70. A useful starting point for consideration of the relevant principles is the decision of the High Court of Australia in Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380. At [11]-[12] the plurality explained: It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide[4]. That test has been adopted, in preference to a differently expressed test that has been applied in England[5], for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done[6]. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."[7] The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial"[8]. 71. We pause at this point to note that the majority of the authorities on this topic to which we have been directed are ones in which a judge has been asked to recuse herself or himself, with the exception of Webb v The Queen (1993-1994) 181 CLR 41 and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20. In this Tribunal, members do not take an oath or affirmation of office but are required to adhere to the Tribunal's Code of Conduct. Notwithstanding the lack of oath or affirmation, we consider that the objects of the NCAT Act enshrine principles of fairness and impartiality analogous to a judge determining a matter on its merits "without fear or favour affection or ill-will". We also have regard to the decision of the plurality in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; 75 ALJR 277 [2000] HCA 63 where their Honours explained at [4]-[5]: The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness[8]. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making. Two examples will suffice to make the point. First, as Mason CJ and Brennan J said in Laws v Australian Broadcasting Tribunal[9]: "The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v Randwick Municipal Council[10]; Salemi v MacKellar [No 2][11]; FAI Insurances Ltd v Winneke[12]." [footnotes omitted] Secondly, few administrative decision makers would enjoy the degree of independence and security of tenure which judges have. These differences, however, must not obscure the fundamental principle. That principle is obviously infringed in a case of actual bias on the part of a judicial officer or juror. 72. It is also relevant that we refer to the earlier decision of the High Court in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. In that case, Mason J emphasised the importance of a judicial officer not too readily recusing herself or himself. His Honour explained: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 73. The touchstone for determination of this appeal may be found in the decision of the High Court in Ebner. There the plurality referred to the two "mights" (i.e. that a fair minded lay observer might reasonably apprehend that a decision maker might not bring an impartial mind to the issue at hand) and the assessment of the logical connection to the apprehension of bias and the matter to be determined. 74. The principles espoused in Ebner are cogently explained in the more recent decision of Charisteas v Charisteas [2021] HCA 29. Importantly there the High Court emphasised the appearance of bias when a trial Judge had a social relationship with a barrister appearing before him. The court explained: The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"[4]. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal[5]. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits[6]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed[7]. 75. Later, their Honours at [18] said, again with reference to the decision in Ebner: The apprehension of bias principle is so important to perceptions of independence and impartiality "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (emphasis added) [16]. No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear[17]. No question as to the understanding or motivation of the particular judge arises.[footnotes omitted]
On 18 October 2022, I declined to recuse myself. My reasons for doing so are set out in this decision.
I reject the contention that telling Mr de Robillard that the identity of the person who had instructed the Council's solicitors in relation to an issue is none of his business, in circumstances where the identity of that person is irrelevant to the determination of the interlocutory application before me, could cause a fair minded lay observer reasonably to apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the application for interlocutory orders which is before me. Conducting proceedings so that irrelevant discourse is minimised is an important part of the task of presiding over proceedings. A fair minded person would not reason that, because I would not allow Mr de Robillard to pursue a quest for information which was irrelevant to the application before me, I would not be impartial and unprejudiced in considering the Council's interlocutory application.
I reject the contention that raising the issue of whether the wording of the orders sought reflected the Council's purpose, as it seemed to be from the material before me, and whether some of Mr de Robillard's objections could be addressed by a differently worded order, could give rise, in a fair minded lay observer, to a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issue of whether an interlocutory order could be made within power and whether such an order ought to be made in all of the circumstances. I made it abundantly clear, throughout the discussion, that there had been no pre-judgment of the issues and I was simply seeking to clarify whether there was a dispute between the parties and, if so, the ambit of that dispute. Mr de Robillard had not complied with the directions leading up to the hearing of 14 October 2022, and had not filed or served his written submissions. Mr de Robillard's characterisation of the discussion as the giving of assistance by me to "the members of the Bar Council" is neither accurate nor fair. Mr de Robillard was given the opportunity to comment on the wording of the order, and did comment, without resiling from his opposition to the order.
I reject Mr de Robillard's submission that the timetable for the filing of written submissions was to his disadvantage. Mr de Robillard was provided with adequate time to file written submissions, and did so early in the morning of 18 October 2022. No inference that he was treated unfairly in relation to preparation for the hearing of this application arises.
Towards the end of the hearing on 18 October 2022, Mr de Robillard was making submissions in relation to the correspondence exhibited in CEM-1 to the affidavit of Mr Moore of 27 September 2022. Mr de Robillard noticed that the correspondence included the text of an unsigned document apparently written to the President of the Tribunal by Mr de Robillard. The title of the document is "For the Personal Attention of her Honour Justice Armstrong". The text of the document contains a number of criticisms of my conduct of the directions hearings in this matter, as well as addressing other, more general issues. Clearly, the Council has come into possession of that document. It is likely that it was sent by Mr de Robillard to Dr Ruth Higgins SC, who is the Senior Vice-President of the Council, with the email that Mr de Robillard wrote to Dr Higgins, dated 21 August 2022, which is also included in the exhibit to the affidavit. That is likely because, in his email to Dr Higgins SC, Mr de Robillard wrote: I would also respectfully request you bring my email addressed to the President NCAT to the attention of the Bar Council for consideration.
When he noticed, during the hearing, that his document to the President of the Tribunal was exhibited to Mr Moore's affidavit, Mr de Robillard submitted that I should recuse myself on the basis that I had now read that document.
I reject the inference that bias or apprehended bias arises from the inclusion of Mr de Robillard's document in the exhibit to Mr Moore's affidavit. Mr de Robillard has repeatedly made it abundantly clear to me, in the course of some of the directions hearings in this matter, that he is aggrieved in relation to what he says he believes happened in various directions hearings. Nothing in the document exhibited to Mr Moore's statement concerning what Mr de Robillard says is his perception of what occurred in various directions hearings was new information to me.
There is no evidence before me as to whether the document apparently meant for the President of the Tribunal was actually sent to her, or to anyone else, apart from Dr Higgins SC. I note that Mr de Robillard wrote, in the document: I have copied this email to: (a) the solicitors purporting to be representing each individual member of the current NSW Bar Association Council. (b) The President of the NSW Bar Association. (c) Andreas Heger, the new Chief Executive Officer of the NSW Bar Association who may well not be aware of the abusive manner in which members of the Bar Council have, jointly and severally, been dealing with me since about 1998 under the leadership of his immediate predecessors, Mr Philip Seth and Professor Tolhurst.
The fact of Mr de Robillard having written the document and sent it to Dr Higgins SC, and possibly to others, does not give rise to actual bias. Nor does it give rise to apprehended bias. A fair minded lay observer would not reasonably apprehend that a judge might not bring an impartial mind to the resolution of an interlocutory application on such a basis. Knowledge that the document had been written by Mr de Robillard, and sent by him to Dr Higgins SC, and possibly to other people, would not be considered, by a fair minded lay person, to be likely to cause a judge to decide an interlocutory application other than on its legal and factual merits.
Were it otherwise, judge shopping would become a simple matter for any litigant.
I keep in mind the words of Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, which bear repeating: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
I note that it is evident from the document at p 11-13 of CEM-1 that I am not the only Tribunal member to have been the subject of a request for recusal by Mr de Robillard. There are at least two others.

Is there power to make the interlocutory order sought?

Statutory provisions

The Council submitted that there are two sources of power for the making of the orders.
The first source of power contended for is given by legislation. Section 29 of the CAT Act provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note - The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A general application is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
Section 302(2)(b) of the Uniform Law is also relied upon by the Council. Section 302(1) and (2) provide: 302 Determination by designated tribunal - disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following - (a) an order that the lawyer do or refrain from doing something in connection with the practice of law; (b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services; (c) an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions; (d) an order that the lawyer's practice be subject to periodic inspection by a specified person for a specified period; (e) an order that the lawyer seek advice in relation to the management of the lawyer's practice from a specified person; (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; (g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer; (h) an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled; (i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period; (j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period; (k) a compensation order against the lawyer in accordance with Part 5.5; (l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct. (2) Subject to section 303, the designated tribunal may make ancillary or other orders, including - (a) an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or in accordance with the order or as agreed; and (b) an interlocutory or interim order, including an order of the kind referred to in subsection (1).
The Council submitted, in summary, that s 29(2)(a) of the CAT Act confers upon the Tribunal jurisdiction to make an interlocutory decision in relation to matters within the Tribunal's general jurisdiction. There is no doubt that this matter is within the Tribunal's general jurisdiction.
The CAT Act defines "interlocutory decision" in s 4 in the following way: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
I take the words 'interlocutory issue' in sub paragraph (i) of the definition of 'interlocutory decision' to mean an issue which has arisen in proceedings between the commencement and finalisation of the proceedings.
The Council submitted that s 29(2)(b) of the CAT Act refers, in this context, to s 302(2)(b) of the Uniform Law. Section 302(2)(b) of the Uniform Law confers power upon the Tribunal to make 'an interlocutory or interim order' in disciplinary matters. This matter is a disciplinary matter.
The Council relied upon s 303(4)(a) of the Uniform Law as the source of the power to award the costs sought. Section 303(4)(a) says: (4) The designated tribunal may make orders requiring - (a) a lawyer in respect of whom proceedings are pending before the designated tribunal; or (b) a person, body or fund nominated in relevant jurisdictional legislation for the purposes of this section - to pay costs on an interlocutory or interim basis.
I accept the Council's submission that the Tribunal has power to award costs in this matter.
The Council submitted, in its written submissions: 4. The orders sought should be made because the respondent's use of these proceedings as cover to continue to send lengthy communications to current (and former) members of Bar Council, despite Bar Council's repeated requests to communicate with its legal representatives, is an abuse of the processes of the Tribunal. It subjects individual members of the Bar Council to harassment, where those individuals are not personally parties to the proceedings and where they are entitled to conduct proceedings via their representatives. This consequence alone should entitle Bar Council to the orders it seeks. 5. In addition, however, the respondent's conduct raises the complexity and therefore potentially the cost of conducting these proceedings. As is evident from the content of CEM-1, the respondent's emails frequently seek the recipient's involvement in actual procedural steps of the Tribunal (see, for example, p2, 12, 16); and make or foreshadow submissions about the conduct of the proceedings (see, for example, pp 5-10). These are not always copied to Bar Council's legal representatives (pp 5-10 and 16 of CEM-1). This puts Bar Council's legal representatives in a position of having to locate and collate the respondent's correspondence sent to various recipients or risk missing relevant information regarding the respondent's conduct of the matter.
CEM-1 is the exhibit to Mr Moore's affidavit of 27 September 2022.
Page 2 and page 16 of CEM-1 are both copies of an email dated 4 January 2022 from Mr de Robillard to Mr Michael McHugh (as he then was), in his capacity as the President of the Council. Mr de Robillard writes, in that email, among other things: As you are aware, I have always held you, in your capacity as President of the NSW Bar Association and 'de facto' person responsible for the functions of the Council, personally responsible for the abusive conduct towards me in relation to the NCAT proceedings.
Page 12 of CEM-1 is one page of the document Mr de Robillard wrote which is entitled 'For the Personal Attention of Her Honour Justice Armstrong'. This document only relates indirectly to the interlocutory orders sought.
Pages 5 - 10 of CEM-1 are the email from Mr de Robillard to Dr Higgins SC dated 21 August 2022. The Tribunal decision referred to in [6], above, was published on 10 December 2021. The following are extracts from that email which relate directly to these proceedings: Recently, photos of me obtained as I was exiting the airport in Honiara were used to publicise my recent demise at the hands of the Bar Council in NCAT. A peremptory check of the transcript of the proceedings will show how unfair, if not abusive, it has been on the part of the members of the Council to claim, let alone publicise in the media, their unjustifiable claim that I was relying on 'gut feeling' when drawing Points of Claim on an urgent basis in a corporations list matter before Black J. … The NCAT proceedings against me starting in 2020 No doubt you would be aware that each member of the existing Bar Council (including yourself) will be personally responsible for prosecuting NCAT proceedings against me starting next Monday 22 August 2022. … I hope that every member of the Council (since 2020) has been kept personally informed of the proceedings which each member has commenced individually against me, in late 2020. I have kept the previous President well-informed and no doubt he has kept his fellow prosecutors as well informed. I could not access the current President's email address; hence my email to you. The proceedings have been somewhat abusive and members of the Council have even resisted accepting (and, at times, have demurred) with the concept that each member of the Council is bound by the ethical/model litigant principles while prosecuting me in NCAT. … May I respectfully suggest that the President has some duty in the general supervision of the activities of the NSW Bar Association and I hope you will bring these matters to the President's attention as soon as possible. All members of the Council should acquaint themselves personally with the history and issues which I have raised since 2020, in these proceedings but which I had already placed on record with Presidents Walker SC, Harrison SC and Slattery SC. In particular I have repeatedly requested and been denied access to my own files held by the NSW Bar Association. Once again, I request such access. I note that I did not pursue any cost order against the Bar Association in the 2004 ADT proceedings. How much has the Bar spent so far in these proceedings? In April, we were told that the case could not be listed for hearing until September because of Senior Counsel's availability. Query why another Senior Counsel could not have been briefed? Are members not entitled to know how much the Council spends in proceedings such as mine each year? I hope that members of the Bar Council will attend the hearing tomorrow Monday 22 August 2022. I respectfully submit that each member is, from a legal point of view, personally responsible for the prosecution. So far neither the Council nor the Tribunal has explained why my contention may be wrong in law. … I would also respectfully request you to bring my email addressed to the President NCAT to the attention of the Bar Council for consideration. I would very much welcome the opportunity to attend a Bar Council meeting so that members may be properly informed about the issues which the Bar needs to address following Mr Selth's intervention into the affairs of the profession. I also respectfully suggest that members of the Bar Council cannot absolve themselves of responsibility by simply relying on what employees of the NSW Bar Association inform them. In any event, I hope we may have an opportunity to discuss some of the issues I have raised in due course.
Mr de Robillard, in his written submissions, complained that the wrong form had been used to make the application for interlocutory orders. A General Application form was used, and Mr de Robillard thought that a Stay or Interim Order Form would have been more appropriate.
I refer to s 38(4) of the CAT Act, which provides: 38 Procedure of Tribunal generally … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
The application for interlocutory orders was validly made.
Mr de Robillard said, in his written submissions, that s 29 of the CAT Act is a 'machinery' provision, 'but is not, per se, the source of the power'.
Mr de Robillard argued that the power conferred by s 302 of the Uniform Law to make 'an interlocutory or interim order, including an order of the kind referred to in subsection (1)' is confined to a period of time after the completion of a hearing into the conduct of a respondent lawyer.
Mr de Robillard argued that the members of the Bar Council were currently abusing the Tribunal's processes, rather than him.
I reject Mr de Robillard's submission in relation s 29 of the CAT Act. Section 29(2)(a) of the CAT Act plainly gives the Tribunal power "to make ancillary and interlocutory decisions" in proceedings in the exercise of the Tribunal's general jurisdiction.
I reject Mr de Robillard's argument in relation to s 302 of the Uniform Law. It is a misreading of s 302(1) and (2) of the Uniform Law. The word 'including' in s 302(2)(b) indicates that the Tribunal may make interlocutory or interim orders of the kind set out in s 302(1) as a subset of the general power being conferred to make interlocutory or interim orders. It cannot be read as confining the power to that subset.
The question of whether the Council is abusing the Tribunal's processes in the manner asserted by Mr de Robillard is not relevant to the resolution of this interlocutory application, though I note that there is no evidence before me to support his assertions.
The Tribunal has power under s 29 of the CAT Act and under s 302 of the Uniform Law to make interlocutory orders in these proceedings.

Implied power

The Council said, in its written submissions: 9. The Tribunal has an implied power to "exercise such authority as will ensure that its processes are not the subject of abuse.". Council of the Law Society of New South Wales v Clarke [2017] NSWCATOD at [73] and [77]. The implication arises out of the principle that a grant of power carries with it everything necessary for its exercise: Clarke at [71] citing Grassby v The Queen 91989) 168 CLR 1 at 16-17 per Dawson J. 10. The Tribunal is this matter is empowered to exercise the functions conferred on it by the LPUL, including findings as to misconduct by practitioners and consequent disciplinary orders. It exercises those functions pursuant to the object of the NCAT Act as set out in s 3 of that Act. The objects include that the Tribunal resolves issues before it "justly, quickly and cheaply": s 3(d). The implied power must therefore extend to that which is necessary for the exercise of those powers. 11. The implied power is enlivened in these circumstances for three reasons. First, the use of Tribunal proceedings to harass parties or individuals is undoubtedly an abuse of the Tribunal's processes. 12. Second, the respondent's conduct as set out in paragraphs [4]-[5] above also interferes with the Tribunal's ability to resolve, and Bar Council's ability to access resolution of issues "justly, quickly and cheaply". 13. Third, the respondent's conduct undermines the Tribunal's exercise of the disciplinary functions conferred by the LPUL by his continued personal approach to the members of the disciplinary body which has invoked the Tribunal process provided for in Part 5.4, Div 3 of the LPUL. That is particularly so where the respondent continues to attempt to reopen the Tribunal's findings and orders with individual Bar Council members (see pp 6, 11-12, 20, 22-23, 27-29).
The relevant part of page 6 of CEM-1 is set out above at [39]. Pages 11 and 12 of CEM-1 are part of the document headed "For the Personal Attention of her Honour Justice Armstrong", and I will not consider them because they do not relate directly to the interlocutory orders sought.
Page 20 of CEM-1 contains an email sent by Mr de Robillard to Ms Stevenson, of Hicksons Lawyers, the solicitors for the Council, on 26 August 2022. It has been copied to Dr Higgins SC. In the email, Mr de Robillard criticised the alleged conduct of the Council's counsel towards him in the hearing room on 23 August 2022. The principal issue ventilated by Mr de Robillard in the email relates to his request that the Council provide him with an estimate of the Council's legal costs in relation to the matter up to 23 August 2022. In the email, Mr de Robillard said that if he was not provided with an estimate of the Council's costs by 2pm on 26 August 2022, he would make an application to the Tribunal for an order that the Council provide him with an estimate of its costs.
Pages 22 - 23 of CEM-1 contain an email sent by Mr de Robillard to the Principal Registrar of NCAT on 29 August 2022. The email is copied to Ms Stevenson and to Dr Higgins SC. The email is principally concerned with Mr de Robillard's request for the Council to provide him with an estimate of its legal costs. In the email, Mr de Robillard asserts that "the Tribunal orally directed the Council to provide me with those details on 23 August 2022". Mr de Robillard says, in the email: I understand that the Tribunal said words amounting to a direction or order on 23 August 2022 but have accidentally omitted to include the order in its Order issued on 25 August 2022.
Mr de Robillard asks that the Tribunal "fix its oversight under the slip rule".
Mr de Robillard asks for an order which includes the names of the solicitors who have worked on the proceedings since they were filed, and details of all Counsel's fees incurred.
Mr de Robillard's email ends with the following, above the sign-off: I have copied this email to Ms Stevenson, of Hicksons Lawyers as well as to the Senior Vice President of the Bar Council: Ruth Higgins SC.
Pages 27 - 29 of CEM-1 contains a further email from Mr de Robillard to the Principal Registrar of NCAT dated 8 September 2022, which is copied to Ms Stevenson and Dr Higgins SC. In the email, Mr de Robillard sets out what he says is his recollection of what occurred in the Tribunal hearing in August 2022, when he requested that the Council be required to provide him with an estimate of its legal costs. In the email, Mr de Robillard then set out what he understood to be the objections of the Council to his request and set out his detailed submissions with respect to those objections. In the email, Mr de Robillard is critical of counsel for the Council. He is also critical of the presiding member and the senior member of the Tribunal.
The final paragraphs of Mr de Robillard's email, before the sign-off say: My respectful submission s that the costs which each member of the Bar Council has (actively or passively) caused to be accumulated up to the date of publication of the Tribunal's findings are relevant and the public is entitled to know, as am I. The Tribunal may also be minded to formulate good policy reasons why the General Member and members of the public who attend the proceedings, and will continue to do so, should or should not be kept informed of the costs being accumulated for the stated purpose of protecting them (members of the public) from me. I have tried to provide an answer as quickly as possible and apologise in advance should any of my language offend any administrative staff or member of the Tribunal. I have copied these submissions simultaneously to Ms Stevenson acting on behalf of all members of the Bar Council since 2019 and to Higgins SC for the information of the current President of the Bar Council whose email address I do not have.
By email, Ms Stevenson repeatedly requested Mr de Robillard not to write directly to members of the Council, but to direct all communication to Hicksons Lawyers, the Council's solicitors in this matter. On 20 September 2022, Ms Stevenson noted that these requests were being ignored, and foreshadowed the filing of the interlocutory application under consideration in these reasons.
On 17 October 2022, Mr de Robillard sent a further email to Ms Stevenson and copied it to Dr Higgins SC. In the letter, Mr de Robillard was critical of Hicksons Lawyers' conduct of the Council's case, and set out his criticism in detail. The email was exhibited to Ms Stevenson's affidavit of 17 October 2022.
Mr de Robillard submitted, in his written submissions, that he had only copied correspondence to Mr McHugh SC (as he then was) and to Dr Higgins SC. I note, however, that CEM- 1, at p 5 - 10 contains an email written by Mr de Robillard to Dr Higgins SC on 21 August 2022.
Mr de Robillard, in his written submissions, set out matters which, in his opinion, the Council should be taking into account in the conduct of the matter, including in relation to the provision of instructions to the Council's solicitors and counsel. These submissions did not address the interlocutory application.
In his oral submissions, Mr de Robillard said that, in order for the Tribunal to have implied power to make the orders sought, the Council would have to prove that he had engaged in the harassment of the members of the Council, and that no such proof had been forthcoming.
Mr de Robillard said that the Council was bound to the wording of the orders sought in its application in the absence of an application to amend the order.
Mr de Robillard repeated many of his complaints about the Council, and various officers of the Council, which appear in the emails in CEM-1.
Mr de Robillard said that he had agreed to stop communicating directly with Dr Ruth Higgins SC "as soon as the President advises me by email that she does not wish to be contacted: please refer to page 25 of exhibit CEM-1."
Nothing in Mr de Robillard's submissions challenges the notion that the Tribunal has the implied power contended for by the Council and described in Council of the Law Society of New South Wales v Clarke [2017] NSWCATOD 142 at [73] and [77].
I reject the submission that it is necessary for the Council to prove that Mr de Robillard's correspondence amounts to harassment of a Council member. In any event, even if that were required for the exercise of the implied power, it is not a pre-requisite for the exercise of the statutory power.
I accept that the Tribunal has implied power to make the interlocutory orders sought. The Tribunal, as I have said, also has express power under both the CAT Act, s 29(2)(a) and under the Uniform Law s 302(2)(b).

Should the power to make the interlocutory orders sought be exercised?

Reference has been made to the guiding principle of the Tribunal, set out in s 36 of the CAT Act, and I bear in mind that I must seek to give effect to the facilitation of the just, quick and cheap resolution of the real issues in the proceedings in considering this application for interlocutory orders.
From my reading of the correspondence referred to above, particularly the email to Dr Higgins SC of 21 August 2022, but also the emails to which Dr Higgins SC is copied in, it is clear to me that the reader of those emails, be that reader Dr Higgins SC or another member of the Council, such as the President, will be given the impression, by the content of the emails, that Mr de Robillard is seeking to impose upon them an obligation to intervene in various situations, including, specifically, in relation to this matter, in the Council's conduct of its case and perhaps also in the conduct of and giving of instructions to the Council's solicitors and barristers. This has the potential to have an adverse impact upon the proceedings of the Tribunal by interfering with the Council's conduct of its case. This undermines the just, quick and cheap resolution of the real issues in the matter. The source of information concerning the conduct of the proceedings and the source of advice concerning the conduct of the proceedings for the Council should be its solicitors and counsel, not the respondent.
The impression which may be given to a reader of Mr de Robillard's emails in CEM-1 that he is seeking to impose an obligation upon members of the Council to intervene in his interests in the Council's conduct of the substantive matter may well be experienced by a reader of those emails as harassment.
The potential of Mr de Robillard's correspondence in CEM-1, including the correspondence to which Dr Higgins SC is copied in, to increase the workload of Hicksons Lawyers and counsel for the Council is obvious. The potential for that increase in workload to increase the quantum of legal costs incurred in the Council's case is also obvious. This also runs counter to s 36 of the CAT Act. Mr de Robillard submitted that there is no proof that this effect will be realised, and speculated that Hicksons Lawyers might be working on a retainer. I note that there is no evidence as to any retainer. In any event, the potential for the quantum of legal costs to be increased is sufficient. The matter should not be conducted in such a way as to generate unnecessary work for Hicksons Lawyers or for counsel.
An interlocutory order restricting Mr de Robillard's communication with the members of the Council is warranted.

The interlocutory orders

It was implicit in the form of order 1, sought by the Council, that the interlocutory order being sought was to be in force for the duration of the matter. I suggested that this be made express, and the Council indicated that it would be content with that. Mr de Robillard did not have a substantive objection to this course.
Mr de Robillard has an argument in relation to the identity of the applicant in these proceedings. He sought to have the order refer to the Council of the New South Wales Bar Association rather than 'the applicant'. The order will be worded accordingly, but I am not to be taken to have made any decision whatsoever in relation to Mr de Robillard's argument as to the identity of the applicant. I have not made any such decision.
Costs should follow the event. There will be an order for the costs of the interlocutory application.
I make the following orders: 1. The respondent must refrain from communicating, by any means, with any member, for the time being, of the Council of the New South Wales Bar Association, in relation to the conduct of this matter by the Council of the New South Wales Bar Association, until this matter has been finalised by the making of orders which dispose of the matter. 2. The respondent is to pay the costs of the Council of the New South Wales Bar Association in relation to the interlocutory application filed by the Council of the New South Wales Bar Association on 28 September 2022.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2022

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