Council of the New South Wales Bar Association v de Robillard - [2023] NSWCATOD 75 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Council of the New South Wales Bar Association v de Robillard

[2023] NSWCATOD 75

NCAT Occupational|2022-08-23

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2022-08-23

Catchwords

[2004] HCA 1 Applicant S254-01, Ex parte - re MIMA [2002] HCATrans 103 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
[2011] HCA 2 Clyne v New South Wales Bar Association (1960) 104 CLR 186
[1960] HCA 40 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
[2021] NSWCA 339 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Source

Original judgment source is linked above.

Catchwords

[2004] HCA 1 Applicant S254-01, Ex parte - re MIMA [2002] HCATrans 103 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283[2011] HCA 2 Clyne v New South Wales Bar Association (1960) 104 CLR 186[1960] HCA 40 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76[2021] NSWCA 339 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337(2006) 246 LSJS 361 Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443[2001] SASC 242 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504[1989] HCA 44 Wentworth v New South Wales Bar Association (1992) 176 CLR 239

Judgment (78 paragraphs)

[1]

er v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gaudie v Local Court of New South Wales [2013] NSWSC 1425 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Practitioners Conduct Board v Kerin [2006] SASC 393; (2006) 246 LSJS 361 Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443; [2001] SASC 242 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 New South Wales Bar Association v Archer (No 8) [2006] NSWADT 318 New South Wales Bar Association v de Robillard [2004] NSWADT 45 New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 NSW Education Standards Authority v Yeshiva College Bondi Ltd [2022] NSWCATAP 160 Polsen v Harrison [2021] NSWCA 23 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2011] VCAT 1406 Vakuata v Kelly (1989) 167 CLR 568; [1989] HCA 44 Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Category: Principal judgment Parties: The Council of the New South Wales Bar Association (Applicant) Christian Roger de Robillard (Respondent) Representation: Counsel: K Morgan SC (Applicant) A Poukchanski (Applicant, junior counsel) Respondent (self-represented)

[3]

Introduction

This decision follows the Stage 1 hearing in this matter. The Tribunal determined the Stage 1 case on 10 December 2021 where it found Christian Roger de Robillard ("the Respondent") was guilty of unsatisfactory professional conduct and professional misconduct. The hearing was conducted over five days in August and October 2022.
In Council of the New South Wales Bar Association v De Robillard [2021] NSWCATOD 207 ("the Stage 1 decision"), we stated the following at [9]: "The parties have asked that we determine the matter to Stage One only in this hearing. That is, we determine if the Council has established that the respondent is guilty of professional misconduct or in the alternate unsatisfactory professional conduct. We do not, in that exercise, consider what order should be made against the respondent (if any). That will be the subject of a Stage Two hearing, before us, should that be necessary."
Before proceeding to address the Stage 2 issues and considerations, we need to provide our reasons for accepting that the Council of the New South Wales Bar Association ("Bar Council") has a separate legal identity capable of being a party to this proceeding. The determination of this issue was agitated before us in the Stage 1 hearing and was particularised in the decision we made on 10 December 2021. We did not provide reasons in relation to that issue however, we had reached a conclusion that the Bar Council is a legal entity and is able to be a party in this proceeding.
The issue of the Bar Council having an independent legal personality continues as a relevant matter in this part of the determination (Stage 2) just as much as it was in Stage 1.
In Stage 1, Mr de Robillard argued, through his Senior Counsel, that "the Application should be 'struck out' because (a) the Bar Council has no independent legal personality which could make it a competent party in curial proceedings." That argument relied upon par 35 of the Reply document which the Respondent had filed on 27 January 2021 and which set out the words which we have set out in this paragraph.
At [65] of the Stage 1 decision, we set out the following: "The evidence of the respondent having concluded, the respondent's counsel informed us that, in light of the respondent's "Response to the Amended Application for Disciplinary Findings and Orders", the original reply document, marked as exhibit R4, will largely go to the Stage 2 proceedings except for the submission at paragraph 35(a), which is: 'That the Bar Council has no independent legal personality'. The respondent said the short argument is that the respondent contends the Council is not a legal or juristic entity or an individual and it doesn't have the capacity to be competent in making these proceedings possible."
We had set out the respective submissions of the parties on that issue at [102]-[105] of our Stage 1 decision. The submissions are lengthy and we do not repeat same here.
The Respondent made further submission through his Senior Counsel, and by himself, which we set out at [106]-[142]. The only reference to the issue surrounding the "independent legal personality" of the Bar Council, we have captured in [102] of the Stage 1 decision.
Central to the position taken by Mr de Robillard in the written submissions filed on his behalf was that the Bar Council has no independent personality that would make it a competent party to the proceedings. It was contended that it was not a legal entity or a juristic entity or a body politic or a natural person or not a person or party within the meaning of the relevant provisions of the Civil and Administrative Tribunal Act 2013 (NSW) or the Interpretation Act 1987 (NSW).
The Applicant countered those submissions in written submissions set out at [104] of our Stage 1 reasons.
We accepted the analysis by the Bar Council there set out as correct and proceeded to deal with the complaints. The Bar Council in our view did have the "independent legal personality" to bring the proceedings. That "personality" is encapsulated by ss 11, 28(2) and 29 of the Legal Professional Uniform Law Application Act 2014 (NSW) which recognises that the functions exercisable by the New South Wales Legal Services Commissioner may be exercised by the body described as the Bar Council, which is defined in s 3 as the Council of the Bar Association, which is in turn defined as the New South Wales Bar Association. The Bar Council also tendered the delegation authority. It was contained in the document titled "Instrument of Delegation and Direction". By that delegation, the Bar Council has the right or authority to commence the proceeding currently under consideration and to do so in its own name.
During the hearing of this Stage 2 of the proceedings, Mr de Robillard raised the contention that the question which he then described as the "jurisdictional fact", a reference to his earlier argument about the independent legal personality of the Bar Council, had not been determined by us. We indicated to Mr de Robillard that we had satisfied ourselves the Bar Council could be a party to this proceeding and that we would provide reasons in this final determination of the proceedings.
The Council in this Stage 2 hearing, addressed the issue of the independent legal personality of the Bar Council. It relied upon the submission it made at Stage 1 on that issue at [65]-[66] of the reasons published by the Tribunal in its' Stage 1 decision. It submitted that the Tribunal does not appear to have set out any explicit conclusions on the question in its' Stage 1 reasons. The Tribunal is not functus officio until Stage 2 orders are made and it can therefore provide its' determination on this issue.
In our view, the analysis set out at [104] of our Stage 1 reasons, which we accepted and proceeded on, enabled us to hear the application brought by the Bar Council.
We note in relation to this aspect of the independent legal personality of the Bar Council, that there have been a number of cases since the commencement of the Legal Profession Uniform Law (NSW) ("LPUL") which the NSW Court of Appeal has determined and which involved the Council of the New South Wales Bar Association as a party. We note this issue as to the independent legal personality of the Council of the New South Wales Bar Association has not thus far, to our knowledge, been the subject of contest.
The Stage 2 hearing requires us to determine the protective orders, if any, which should be made. That includes the possibility of making the recommendation as sought by the Council of the New South Wales Bar Association ("the Council" or "Bar Council"). The outcome sought by the Council in its' filed application is: "That the Tribunal recommends that the name Christian Roger de Robillard be removed from the Roll kept by the Supreme Court of New South Wales and the Australian Legal Profession Register". The Council also seeks "[t]hat the [R]espondent pay the costs of the Council of the New South Wales Bar Association". The Respondent opposes the making of any orders and seeks the dismissal of the Council's application.
The hearing commenced on 22 August 2022. The Respondent sought to agitate a number of preliminary matters before the Tribunal moved to consider any evidence or submission in relation to the protective orders which might be made against the Respondent.
The Tribunal noted the following list of preliminary matters which the Respondent informed us he wished to agitate. 1. The Tribunal has not made a decision as to whether the Council is an independent legal personality capable of conducting this proceeding in its' own name. 2. A matter of possible apprehended bias in relation to the Tribunal arising from an allegation that Ms Morgan SC, counsel for the Council, had knowledge of a matter which would be solely in the knowledge of the Tribunal. 3. The Tribunal should recuse itself from the further hearing in this matter on the basis of apprehended bias against the Respondent. 4. That the Senior Member and the Principal Member recuse themselves from further hearing on the ground of apprehended bias. 5. A request that the Council supply the Respondent with detail of its' costs incurred in the proceeding to the Friday before the commencement of this hearing. 6. A request that the Tribunal provide the Respondent with a list of the exhibits marked in the Stage 1 hearing. 7. A request that the Respondent be advised what pages from the affidavit of Mr Tolhurst, read in the Stage 1 hearing, are before the Tribunal. 8. A complaint that the Respondent had been denied a request to be provided with copies of the sound recording from the Stage 1 hearing until the morning of the commencement of this hearing.
The Respondent pressed his application for Senior Member Dixon SC, to recuse himself from the further hearing in the matter; for the Principal Member, Le Poer Trench ADCJ to recuse himself from the further hearing in the matter; and for the Tribunal as a whole to recuse itself from the further hearing of the matter. That application was heard on 23 August 2022. The Tribunal, and the individual members of the Tribunal who had been named by the Respondent in his applications, refused the applications. The following orders were made on 23 August 2022. 1. Senior Member Dixon, on the application of the Respondent, refuses to recuse himself from the further hearing of the matter; 2. Principal Member Le Poer Trench ADCJ, on the application of the Respondent, refuses to recuse himself from the further hearing of the matter. 3. The Tribunal as a whole, on the application of the Respondent, refuses to recuse itself from the further hearing in the matter. 4. The reasons for these orders will be provided in writing with the final determination of the Stage 2 hearing.
The Respondent provided no affidavit or oral evidence in response to the evidence of the Council filed in this Stage 2 hearing (he did make an application to give oral evidence on the final day of the hearing, however, that was refused, as will be seen later). He did tender documents which he said supported his application for recusal. Those documents are as follows: 1. A copy of an article in The Australian newspaper containing a photograph of the Respondent and dated 26 December 2021. 2. A copy of an article in Lawyerly Media dated 23 December 2021. 3. A copy of an article in Lawyers Weekly dated 20 December 2021. (The content of these documents is provided further in these reasons.)

[4]

The Recusal Applications made by the Respondent

During the hearing, which took place over five days, the Respondent made a number of recusal applications. In this judgment, we have endeavoured to capture all of his recusal applications and provide a determination for each.
On 22 August 2022, the Respondent made an application for Senior Member Dixon to recuse himself from the further hearing in the matter. His application was predicated upon what he described as the Senior Member "staring at me pointedly since I've been sitting here this morning" (22 August 2022 transcript, p 12). He described the Senior Member as "staring in a very mean and aggressive manner".
On 22 August 2022, the Respondent sought that the Principal Member also recuse himself because the Tribunal had not, following the hearing in relation to Stage 1, published reasons addressing the issue raised by the Respondent, that the Council was not an entity having an independent legal personality. The apprehended bias is said to be that the Tribunal is not concerned with determining the capacity of the Council to appear in the Tribunal and/or that the Tribunal "thinks, or has decided, that the Council can do no wrong" (22 August 2022 transcript, p 12, lines 46-49). In support of this application, the Respondent also stated: "A member of the public, informed in the law as is required under Johnson v Johnson [2000] HCA 48, would apprehend that there is something untoward that has happened when this morning Ms Morgan told me the Tribunal has made a decision but they have not yet published their reasons, and when asked to identify the source of her understanding, as she put it, she referred to paragraph 66, 102 and 105, or 102 to 105, of her [sic] reasons" (22 August 2022 transcript, p 13). The Respondent further informed the Tribunal: "Can I say, just to clarify, what Ms Morgan said to me was that the Tribunal - when I said, 'Well how are you going to deal with the Tribunal not having yet made a decision about this point?', she said, 'They've made a decision', that's what she told me, 'They've made a decision but they haven't published their reasons yet'. And then when I said, 'Well, how do you know they've made a decision?' Then she backtracked and said, 'I understand they've made a decision.' So that's a matter of serious concern to the informed members of the public who would apprehend that somehow the Council has some inside information as to what the Tribunal has been doing."
The Respondent further stated: "… the apprehension would be increased, … [i]n the knowledge that the Senior Member and the Principal Member are both members of the Bar Association. And you're both practising barristers. And in fact, I understand on the last occasion the Principal Member mentioned that he received an email from the Bar Association during the course of the proceedings."
When the Respondent was asked to clarify the timing and context of the alleged receipt by the Principal Member of such email, he stated: "Well that's why we need to listen to the tape. I don't want - I mean I've been accused of making statements without definite knowledge so I'm just saying my recollection is that the Principal Member stated that he had some difficulty because he'd received an email from the Bar Association" (22 August 2022 transcript, p 14, line 10). We note no further evidence of such a statement from the Principal Member having been made, as alleged by the Respondent, was provided in support of the recusal application or otherwise. The Principal Member did not make any such statement which suggested a communication received by him from the Bar Association caused him "some difficulty". Nor was there any suggestion the Principal Member had received any communication from the Bar Association which in any manner touched on the subject matter of the proceeding or any aspect of the proceeding.
Further in support of his recusal application, the Respondent said: "The impression the member of the public would obtain from the very first hearing on 13 September, and which would be strengthened by the body language and all the events that have happened today, and I should say I'm not - when I say body language I'm not at all addressing Ms Porter the General Member, I'm looking at the Senior Member and the Principal Member. If one looks at that, one can see that we have in front of us two barristers who simply know me from reputation, who have looked at the records that they have received as to my alleged past conduct and have decided 'This man is not someone we want to be among us as a barrister, we need to get rid of him. Not because he presents some sort of danger to the public but simply because he's not one of us.'"
The Respondent further submitted that in the decision delivered in relation to Stage 1, the Tribunal had demonstrated a "coloured view" of the evidence he had given. His words, as recorded on the transcript were: "It was a representation of my evidence, the evidence I gave, and in my respectful submission it was biased and unfairly coloured, and in my respectful submission any member of the public watching my evidence on the video link, and reading the judgment of the reasons, would apprehend that the Tribunal had a very coloured view of my evidence."
The Respondent excursed into argument which was not in our view addressing his recusal applications, rather he raised argument which was really a possible appeal point. He used phrases such as "the Tribunal should have considered", and "the Tribunal refused to look at". When called upon to identify how those submissions supported his recusal application, the Respondent stated: "Well this apprehension of bias is central, it says, the contention is the fact that the Tribunal ignored all those submissions and that evidence, chose to ignore all that evidence and submissions, and simply looked at the 2016 proceedings and found that I had no basis for the application for an injunction against Mr Wells, means - or would lead to the apprehension that the Tribunal was not prepared to look at the real facts of the case because those facts did not suit the determination, or the predetermination of the Tribunal to find that I was not a fit and proper person to be a barrister."
Although not apparently central to the recusal applications the Respondent had articulated, the above was an allegation that the Tribunal had pre-judged the case before the hearing commenced and had selectively marshalled the evidence in the Stage 1 decision in order to justify its' collective pre-judged view that the Respondent was guilty of unsatisfactory professional conduct and professional misconduct. As such, the allegation was an extremely serious allegation to make of the appointed members of any tribunal created by statute.
At the conclusion of a lengthy submission, the Respondent crystallised his submission to be: "It doesn't matter what the motivation is, the point is what counts is not what I think, what counts is not what the Tribunal thinks, the test is what would an informed member of the public knowing the full history of all my transactions with the Bar Council and the Bar Association since 1998, knowing all of these things, may determine - I'm not too sure what they would - what they might decide, but what my submission is that leads to an apprehension of bias on the part of the Tribunal not doing its duty to the best of its ability because it may already have made a preliminary determination as to the outcome" (22 August 2022 transcript, p 22).
As will be seen later, the above paragraph misstates the test for establishing a case of apprehended bias.
The Respondent then submitted: "Well all I'm saying [is] the informed bystander would wonder why the Tribunal would not take the Council to task and ask for an explanation, 'Why did you not provide this document on the spot?'" (see 22 August 2022 transcript, p 27). (That appears to be a reference to the affidavit of Mr Ristovski which was provided to the Respondent at the conclusion of the Stage 1 proceeding and was then relied upon by the Respondent in his submission to Stage 1.)
The Respondent submitted part of the recusal application was predicated upon the following (22 August 2022 transcript, pp 27-28): "And the Tribunal would have seen from my Reply that was before the Tribunal that I have set out in great detail the long history of dispute with the Bar Council going back to 1998, and one would have thought that the Tribunal would have taken that into consideration when managing those proceedings with the Bar Council, and the way in which the Bar Council was running the proceedings. But instead of questioning the actions of the Bar Council in my respectful submission the informed bystander would understand that Senior Member Dixon spent considerable time trying to tighten up the Bar Council's case, asking quite relevant questions so that the case would become solid when it wasn't previously."
We pause here to note that the Respondent's counsel in the Stage 1 hearing informed us that the matters referred to by the Respondent in the preceding paragraph were relevant only to any Stage 2 hearing and then addressed that part of the Reply document which identified the independent legal personality of the Council and also the complaint relating to the order made by Justice Black that the Respondent pay Mr Wells' costs.
The Respondent then referred to a connection between the Principal Member and Justice Rees of the Family Court of Australia as a basis for recusal. He submitted (22 August 2022 transcript, p 28): "The other issue is that one of the matters that the Tribunal will have to deal with is …, I think it was a reprimand, that I was given by the President of the Bar Council because Justice Rees of the Family Court, who would be one of your colleagues - one of the colleagues of the Principal Member". The Respondent described the circumstances arising from a complaint Justice Rees had made about an aspect of his conduct in a family law proceeding before her. He submitted (22 August 2022 transcript, pp 28-29): "Because what I'm saying is my submission is that your Honour, or the Principal Member, will have to deal with some history where a complaint was made by one of your fellow judges against me and I was found guilty of misconduct.… I think the member of the public would give rise to some apprehension when - well, let me say why, because if one reads anything to do with the Bar Association, the Bar Council, the judges, what comes out of all those statements is how collegiate the business is, how much everyone enjoys being in that collegiate atmosphere where everyone supports each other."
The Respondent then addressed what he described as "the apprehension of bias" because "the Principal Member is a practising barrister". The Respondent submitted "that creates a conflict". Further, the Respondent submitted there was apprehension in the public about the role of the Principal Member as an Acting District Court judge and what that might convey to the public about that position. The Respondent submitted: "Well I'm not too sure what that means, but the point is obviously that's something that a member of the public would be concerned about and there are ample cases about the issues with acting judges. They would wonder whether you're an acting judge which means that you simply are a judge, or whether you are a judge one day and a barrister the next day, and something else another day. Obviously if one is a judge one has some independence. But if one is an arbitrator in the Family Court then one very much depends on the goodwill of the profession to obtain work as an arbitrator, and in more recent times the Family Court has been pushing very hard for cases to be determined by arbitrators, and who better than an ex-judge of the Family Court?"
The Respondent was asked to clarify his point about the Principal Member also being an arbitrator. The Respondent said (22 August 2022 transcript, p 31, line 37: "Well the member of the public would see you, who are supposed to be a judge, or acting judge, I don't know whether there's a difference, I would have thought it should be the same, and a judge should be someone independent, but if you're also an arbitrator specialising in family law matters, then you depend on the profession to obtain work as an arbitrator."
The Respondent was then asked by the Principal Member: "And what flows is that a member of the public would apprehend that I would favour the Bar Council because of that, is that what you're saying?"
The Respondent then said (22 August 2022 transcript, pp 31-32): "Well I don't know who the Bar Council is, all I'm saying is they would apprehend that you would be favouring, one, the Association to which you belong, the New South Wales Association, and two, whichever lawyer, barrister, is involved."
The submission went further. The Respondent said: "Well if you are an arbitrator - you would have referrals by solicitors such as Hicksons". (We note that is the name of the Council's solicitors' firm). "Or the Bar Council, or members of a profession, because as an arbitrator you depend on work flowing to you from the profession. … The apprehension is that there could be a predisposition. … Conscious or unconscious. … There are ample articles about the unconscious bias among judges, it's well known" (22 August 2022 transcript, p 32).
We note here that no application for recusal was made in relation to the Tribunal or any of its' members during the Stage 1 hearing. A number of the contentions submitted by the Respondent to support his recusal applications were in existence during the Stage 1 hearing when the Respondent was legally represented.
The Respondent submitted there was an apprehension which arose from the conduct of the Stage 1 hearing. He submitted: "And on several occasions I was stopped by the two members who told me that I had a barrister and I wasn't an advocate. In my respectful submission the informed member of the public would know very well that even in the most formal of proceedings, which this is not, this is not supposed to be formal proceedings, judges are very protective of witnesses who are giving evidence and they are allowed to give evidence without being interrupted by counsel, and that was not the case in my matter. And the fact is that the Tribunal characterised my evidence as in such a way which was totally unfair, the point is that it was Senior Counsel for the Bar Council who cut the cross-examination very short without putting to me all the issues she should have put under Browne v Dunn, which my Senior Counsel referred to, but which the Tribunal decided was not relevant because it was said that I already knew what the issues were a long time ago. … But the informed bystander would know that a lot of issues that became apparent during the hearing only became apparent, and became crystallised, because of the questions that Senior Member Dixon was giving to - was putting to the Senior Counsel for the Bar Council, and that's when a lot of issues became crystallised. Because before they were just parallel lines between 'You broke all these rules, all these barristers rules, 61, 62, 60A, 8C', it was all just a mishmash without any connection between what the action was that breached which rule, and that's what Senior Member Dixon achieved in these proceedings, assisted the Bar Council in making its case a bit more watertight than it should have been. … But in my respectful submission the informed bystander would form the impression that in fact what the Tribunal was doing was protecting the Senior Counsel for the Bar Council in relation to the answers I was giving to her questions."
The Respondent then drew in that part of the Stage 1 proceeding which related to the costs order made against the Respondent in favour of Mr Wells. The Respondent submitted (22 August 2022 transcript, p 34): "So that would be yet another aspect of an apprehension on the part of the informed member of the public about whether or not the Tribunal was really concerned to establish that there was a liability to pay which I've crystallised before determining that somehow or other I was guilty of professional misconduct notwithstanding the fact that Mr Wells was paid as we all know. … And what the informed member of the public would be concerned about is the fact that the Tribunal in its reasons, instead of making its own determination, relied heavily on what Justice Black said about a matter which was, the informed member of the public would understand, not the issue which was before the Tribunal."
The Respondent then addressed a report dated 22 April 2020 which had been admitted to evidence in the Council's case. The Respondent submitted this was in exactly the same terms as an earlier report prepared in relation to the Respondent. The Respondent submitted (22 August 2022 transcript, p 35): "The apprehension of bias is that they're the sort of things the Tribunal should have looked at in the circumstances where, in your reasons, the Tribunal said there was evidence before the Tribunal which counsel had tendered which satisfied the Tribunal, or words to that effect, whether it was satisfied or not, because there's a lot of decisions that were not made in those reasons, but basically it was to the effect that, 'Well we've got evidence that shows all the procedural steps'. But the question should have been asked."
In the hearing on 23 August 2022, we understood the Respondent would be making submissions to support his recusal applications. In the submission in support of his recusal applications, the Respondent submitted that part of the apprehension of bias arose because the Tribunal had not asked (and assumedly it is contended, but not stated, had an obligation to ask him) what he had meant by the words "gut feeling" in the evidence he had given in the Stage 1 hearing (23 August 2022 transcript, p 7).
Following that submission, the Respondent made a further application that Senior Member Dixon SC "immediately recuse himself from hearing this matter any further". When asked whether this was a fresh application founded upon a different basis to that application described in the hearing on the previous day, the Respondent said the following: "My application is that you, Principal Member, recuse yourself along with Mr Dixon, various events which happened yesterday now means in my respectful submission that Mr Dixon himself should recuse himself from these proceedings".
The Respondent then said: "Well, as I've said yesterday, there were several moments where, and I notice that Mr Dixon's demeanour is quite different today, but yesterday from the moment he came on to the bench Mr Dixon could be described as a cheetah on a branch about to jump on his prey."
The statement of the Respondent was directed to Senior Member Dixon who responded with the following: "Mr de Robillard, just stop there, please. I take exception to what you are saying. You have no foundation at all for what you are saying and I suggest that you take a cautionary break if you need it to reconsider what you were saying."
The Respondent then said: "That's all the more reason why you should recuse yourself, with respect. The point is this is not what I'm saying. I'm saying what the member of the public would apprehend from looking at Member - …"
When that was challenged by the Principal Member, who said "You described what you saw as in those words, not the member of the public sitting at the back. You've described what you saw". The Principal Member reminded the Respondent of what he had said, namely "Yesterday he came on the bench like a cheetah on a branch ready to pounce" (23 August 2023 transcript, pp 7-8).
The following exchange then took place (23 August 2022 transcript, pp 8-9): "RESPONDENT: That's not what I said, with respect. SENIOR MEMBER DIXON: All right. RESPONDENT: If I said that then I withdraw that. What I said is looking like a cheetah on a branch and if I could now describe what I said, the look that I got from Mr Dixon yesterday for about an hour and the look was with both his elbows on the bench like that and forward staring at me like he is now. I mean, that's what it was like for about an hour yesterday. Now, not only that once I complained about that then what Mr Dixon did was he sat there with his arms severely crossed like that staring at me still but the point is that's just the background, that's just a build-up, but what he did yesterday is while I was in the middle of an apprehended bias application, in the middle of one, in the course of one, I mentioned that - and I welcome our side exchange, Mr Dixon, and what you did yesterday, Mr Dixon, is now you're shaking your head. SENIOR MEMBER DIXON: I do not wish to engage with you about allegations-- RESPONDENT: Well, stop staring at me then. SENIOR MEMBER DIXON: --Mr de Robillard which are totally unfounded. RESPONDENT: Then stop staring at me. SENIOR MEMBER DIXON: I listen to you as I listen to any counsel. RESPONDENT: You're staring at me, before you were not, before you had your head down looking down. Now, you're staring at me. HIS HONOUR: Would you prefer that the members of the tribunal not look at you during the time that you're addressing them because I don't want to offend you and I want the tribunal members to know that you feel offended if we're looking at you. So would you prefer we don't look at you? RESPONDENT: Well, as I said one problem is the collegiate thing. I have never complained-- HIS HONOUR: Would you prefer we don't look at you when you're addressing the tribunal? RESPONDENT: I can't answer that question in that way. HIS HONOUR: I'm sorry, you won't answer the question? RESPONDENT: I can't answer the question that way because it's an unfair question because I never complained about you looking at me. I've never complained about Ms Porter looking at me. I've only complained about one of them, Mr Dixon."
The Respondent then went further with his application as follows: "While I was making my application knowing that this is an apprehended bias application I mentioned that I wanted Mr Heger but I had indicated to my friend that I was - I had asked for Mr Heger … Now, as soon as I said I've asked and I've been putting the tribunal on notice more than once that I would be asking for this so that we don't waste time. Mr Dixon then pounced and said when did you give that notice in a very aggressive tone of voice. Why would that be relevant in an apprehended bias application? The [C]ouncil had said nothing but Mr Dixon pounced and said when did you give that notice as if it's relevant to an apprehended bias application. Well, that statement is highly irrelevant to an apprehended bias application, highly irrelevant, and I again invite Mr Dixon to recuse himself from these proceedings immediately."
The following exchange then took place (23 August 2022 transcript, p 9): "SENIOR MEMBER DIXON: Your request is denied, Mr de Robillard. RESPONDENT: Would you publish some reasons about that? SENIOR MEMBER DIXON: There is a process to be followed for that which you can follow in due course, thank you."
The Respondent continued to raise a complaint about the Senior Member and stated (23 August 2022 transcript, p 10): "It's important to put on the transcript for the purpose of a transcript that yesterday afternoon the other thing that Mr Dixon did many times was to put, to write furiously on pieces of paper and put it in front of the Principal Member which I just saw he just did now and I'm just asking what Mr Dixon was saying is to indicate that you should tell me my time is up. … I have seen a lot of Court of Appeal judges exchange notes but not in the manner that Mr Dixon exchanged notes with you."
The Respondent formulated his application which arose from the role of the Deputy President, Judge Cole, in the direction hearings which preceded the hearing in this Tribunal. He submitted (23 August 2022 transcript, p 12): "So in my respectful submission, the bias application includes not only what's happened in this Tribunal, in front of the Tribunal members but in my respectful submission the member [of] the public, the informed member of the public would apprehend that as far as Judge Cole was concerned, I was not someone worthy of being provided with procedural fairness. I was someone who was simply wasting the Tribunal's time because the sooner I was struck off the better. But, but when the Bar Council said Senior Counsel is not available until September, then there was no comment made and eventually we waited until September."
Counsel for the Council then addressed at our invitation. She addressed what she described as errors of fact. She then addressed what she said were matters of law arising from the decisions of the High Court. She addressed what she said was "a broader allegation of impropriety" on her part. She said: "Any statement from me to Mr de Robillard was referring to quite expressly to the point made in my written submissions in relation to the decision on jurisdiction."
The Respondent was permitted to provide submission in reply to that of the Council. He did so. In that submission the Respondent continued to address what he said was the conversation which took place between he and the Senior Counsel for the Council. In order to clearly understand what the Respondent was submitting in relation to the conduct of Ms Morgan SC, if anything, the following exchange took place (23 August 2022, p 21): "HIS HONOUR: You say that her words on their face suggest that she had some improper information - sorry, she had information acquired improperly, is that right? RESPONDENT: I'm not making anything - I'm not saying it's improper or improper. I'm simply saying if as happened in those meetings with a judge there was - I don't know why the Tribunal - you try to say that I'm making allegations of impropriety, I'm not. HIS HONOUR: No, no, I understand you are raising there-- RESPONDENT: But it keeps coming out of your mouth, with respect. HIS HONOUR: Just listen? Just listen? I understand that your application is one of apprehension of bias. RESPONDENT: And I'm not implying any impropriety on anyone's part. HIS HONOUR: I understand that's what you say. RESPONDENT: And it could well be that Ms Morgan was just walking by and heard you talking on the phone, saying oh we've made a decision, I mean and it's totally innocent. But the point is that's what she told me. HIS HONOUR: That she heard me talking on the phone? RESPONDENT: Well, no. HIS HONOUR: What? RESPONDENT: Well, anyway we can - we can try to twist me around. Before you know, I'm just saying I'm not implying any impropriety in the possible acquiring of information by this-- HIS HONOUR: Righto, thank you. RESPONDENT: All I'm saying is that's what she said, and the member of the public hearing that would have an apprehension of bias. And it doesn't mean that what she said or her knowledge could have affected the Tribunal's decision one way or another. It goes that High Court case involving the Family Court."
Senior Member Dixon SC, the Principal Member, and the Tribunal as a whole then delivered his and its' decision in relation to the recusal applications as follows: "SENIOR MEMBER DIXON: In respect of the application raised orally yesterday and pursued today by the respondent that I recuse myself from further hearing this matter as a member of the panel I decline to do so. HIS HONOUR: In relation to the application for recusal as directed specifically at me I also decline to recuse myself on the application of the respondent and to the extent that the recusal application is directed to the tribunal as a whole the tribunal refuses to recuse itself on the application of the respondent and reasons for that decision will be published with our reasons in the matter currently before us for determination."
On 24 October 2022, the Respondent again raised the recusal application asserting that Ms Morgan had told him: "that decision has already been made. They simply have not yet announced the decision." He further stated: "and that was said in support of my application that the tribunal, at least your Honour with respect and certainly Senior Member Dixon, should recuse themselves because on what Ms Morgan said to me, she seemed to be aware that a decision had been made, when I'm not aware of that decision." At the time the Respondent made that submission, we pointed out that we had heard that application for recusal and we had refused it, and would publish our reasons when we gave our final decision.
On 24 October 2022, the Respondent further raised his recusal application that the Tribunal should recuse itself, in part, because of the conduct of the direction hearings, by the Deputy President of the Tribunal, Judge Cole and also because, as he said, "which would invigorate the apprehension of bias is the manner in which the Bar Council has been allowed to maintain and prosecute these proceedings without any criticism whatsoever." In response to the Respondent's complaints about the alleged conduct of the Deputy President of the Tribunal, we asked the Respondent: "Could you direct us to any part of the legislation which controls the way in which this Tribunal operates that gives us the power to deal with any of those matters you have raised in relation to Judge Cole? I don't understand where the power would come from for us to do that which you are asking us to do in relation to Judge Cole." The Respondent replied: "I agree this is not very clear and I would need some time to look at it". The Respondent went on to submit there was a general power in the Tribunal to make orders about the running of proceedings before it. Further, he referred to section 36 of the Civil and Administrative Tribunal Act 2013 (NSW) and section 56 of the Civil Procedure Act 2005 (NSW).
The Tribunal members refused the Respondent's applications for recusal and said the reasons would be published with this decision.

[5]

Introduction

We have considered the transcript of the hearing across the five days of hearing and we have identified the following recusal applications and the particulars said to support each application based on apprehended bias: 1. Senior Member Dixon for "staring pointedly" and/or "staring in a very mean and aggressive manner". 2. The Tribunal for failing to publish its decision on the "independent legal personality" of the Bar Council. 3. The Tribunal because the Tribunal had taken the view that the Bar Council can do no wrong. 4. The Tribunal because Ms Morgan SC had inside information to the effect that the Tribunal had decided the "independent legal personality" issue and was still to publish its' reasons. The Respondent in his submission in support of this ground for recusal denied he was stating or implying any impropriety on the part of Ms Morgan SC. He stated she could have overheard the Principal Member speaking on the phone and saying, "Oh we have made a decision." 5. The Principal member because he had allegedly received a communication from the Bar Council which "placed him in some difficulty". 6. The body language of both the Principal Member (not particularised) and Senior Member Dixon which portrayed that they collectively took the view that they knew the Respondent by reputation (not particularised) and have looked at the records and decided "this man is not someone we want among us as a barrister, we need to get rid of him … he is not one of us". 7. The Tribunal as a whole because the Stage 1 decision demonstrated a representation of the Respondent's evidence which was biased and unfairly coloured. That the Tribunal was not prepared to look at the real facts of the case because those facts did not suit the determination, or the predetermination of the Tribunal to find the Respondent was not a fit and proper person to be a barrister." 8. The Tribunal, and in particular Senior Member Dixon, had not in its' management of the proceeding taken into account the way in which the Council was conducting the case (during Stage 1, and possibly Stage 2). Rather, "Senior Member Dixon [had] spent considerable time [in the Stage 1 hearing] trying to tighten up the Bar Council's case [by] asking relevant questions so the case would become solid." 9. The connection between the Principal Member and Justice Rees of the Family Court of Australia, as the Principal Member had been a judge in that court and Justice Rees had referred a complaint against the Respondent to the Bar Association. 10. The Principal Member and the Senior Member because "if one reads anything to do with the Bar Association, the Bar Council, the judges, what comes out of all those statements is how collegiate the business is, how much everyone enjoys being in that collegiate atmosphere where everyone supports each other." 11. The fact that both the Principal Member and the Senior Member are practising barristers and that creates a conflict. 12. The Principal Member is an Acting District Court Judge and the member of the public would be concerned about that and there are ample cases about issues with Acting Judges (no particulars or details provided). 13. That the Principal Member is also an arbitrator in family law matters and depends upon the goodwill of the profession to obtain work as an arbitrator. As a consequence, the Principal Member would favour the Bar Association and the barrister appearing for the Bar Association. Further, as an arbitrator the Principal Member would favour the legal representatives for the Bar Council as they are solicitors and solicitors are a source of work for arbitrators. That would give rise to a conscious or unconscious predisposition. 14. The Tribunal members (Principal Member and Senior Member) stopped the Respondent whilst he was giving evidence to remind him he was represented by Senior Counsel and he was not to excurse into submission rather than confining himself to answering a question asked of him by the counsel for the Bar Council. 15. That the Senior Member, during the cross-examination of the Respondent in the Stage 1 hearing, put questions to the Senior Counsel for the Bar Council and thereby crystallised issues which otherwise would not have been crystallised. The Tribunal thereby protected the Senior Counsel for the Bar Council in relation to the answers the Respondent was giving to her questions. The Tribunal had not required the Applicant to tender the affidavit of Mr Alex Ristovski. 16. The Tribunal because of its' stance in relation to the costs order which the Respondent was required to pay Mr Wells. The Tribunal had not attempted to establish that there was in fact a liability for the Respondent to pay the costs order. That the Tribunal had relied heavily on the words of Justice Black in the Supreme Court proceeding in which Mr Wells had been named as a party. 17. That the Tribunal had admitted to evidence a report dated 22 April 2020 which was in exactly the same terms as an earlier report. 18. The Tribunal did not ask the Respondent, whilst he gave oral evidence, or made submission in the Stage 1 hearing, what he had meant by the words "gut feeling". 19. The Senior Member recuse himself because he "came onto the bench" in a manner which the Respondent described as "a cheetah on a branch about to jump on his prey." That the Senior Member had "pounced and said 'when did you give that notice' in a very aggressive tone of voice", when the Respondent had said he wanted to cross-examine Mr Heger, a witness of the Bar Council. The Respondent contends that question was not relevant in the context of a recusal application. This application was made on 23 August 2022. That application was refused immediately with the reasons to be published in the Stage 2 decision. 20. The Respondent, in support of the application for recusal just refused, alleged he had seen the Senior Member "writing furiously on many occasions and handing notes to the Principal Member". 21. The Tribunal because of the conduct of the Deputy President in relation to procedural hearings conducted for the purpose of addressing disputes or issues which arose between the publication of the Stage 1 decision and the conclusion of the hearing before this Tribunal on 26 October 2022.
These are the reasons of the Tribunal and its members in respect of the recusal applications which were made and refused during the Stage 2 hearing.

[6]

Apprehension of Bias - Legal Principles

All the applications were made on the basis of an apprehension of bias.
The principles relevant to an application for recusal on the basis of apprehended bias are well-settled, including as to their application to an administrative tribunal such as this Tribunal: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ("Ebner") at [83]; Gaudie v Local Court of New South Wales [2013] NSWSC 1425 at [78]-[101] ("Gaudie"); Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [75]-[78] (Gleeson JA, Emmett JA and Tobias AJA agreeing); Windsor v Health Care Complaints Commission Complaints Commission [2020] NSWCA 110 at [52]-[54];Polsen v Harrison [2021] NSWCA 23 at [46]-[50] (Ball P, Baston JA and Simpson AJA); NSW Education Standards Authority v Yeshiva College Bondi Limited [2022] NSWCATAP 160 at [70]-[75].
In determining the applications, we had regard to the following decisions and analysis of the principles to be followed in dealing with the application: 1. In Gaudie at [78]: "The governing principle is that, subject to qualifications relating to waiver, necessity, or possibly special circumstances (none of which arise in this case), a judicial officer is disqualified if a fair-minded lay observer or bystander … might reasonably apprehend that the [j]udge might not bring an impartial mind to the resolution of the question or questions that the [j]udge is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [139], [146]-[152]. The question is one of 'possibility (real and not remote), not probability': Ebner v Official Trustee in Bankruptcy at [7]." (emphasis added) 1. In Gaudie at [79]: "In practice, the application of this test involves the following steps: (a) the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at [8]; (b) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at [8]." 1. In Gaudie at [81]: "A judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [45]." 1. In Gaudie at [84] "As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at [33]." 1. In Gaudie at [97]: "The bystander is taken to have knowledge of all the material and objective facts: Webb v The Queen [1994] HCA 30; 181 CLR 41 at 67, 73-74. The bystander is assumed to have sufficient knowledge to put the remarks of the [j]udge in their proper context: Lee v Cha [[2008] NSWCA 13] at [45]." 1. In Reid v Commercial Club (Albury) Ltd at [78]: "Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented". 1. In Polsen v Harrison at [46(xii)]: "interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge's desire to understand the evidence and to advance the trial process". 1. In Polsen v Harrison at [46(xiv)]: "there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the "actual circumstances of the case" as though the observer was sitting in the court". 1. In Polsen v Harrison at [46(xv)]: "the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made". 1. In Polsen v Harrison at [46(xvi)]: "the context which must be considered includes the legal, statutory and factual context in which the decision is made, and 'the totality of the circumstances', although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles". 1. In Polsen v Harrison at [46(xxi), (xxii)]: "(xxi) the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; [but] (xxii) the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context". 1. As to the status of Tribunal members, other than the Principal Member who is an Acting District Court Judge (NSW Education Standards Authority v Yeshiva College Bondi Limited at [71]: "… 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 [Civil and Administrative Tribunal Act 2013 (NSW)] enshrine principles of fairness and impartiality analogues to a judge determining a matter on its merits 'without fear or favour affection or ill-will'."
In support of his applications, the Respondent relied on the following authorities. First, New South Wales Bar Association v Archer (No 8) [2006] NSWADT 318 ("Archer"), which he contended provided a good overview of the law. That case involved arguments by the practitioner that errors made by the Tribunal in earlier decisions or rulings involved, for example, illogical reasoning or findings that were of "dubious correctness" and that, in those circumstances, the reaction of "ordinary citizens" (that the Tribunal was asked to envisage) was that they might conclude, because of those errors, that the members of the Tribunal could not bring an impartial mind to bear on the future resolution of the case. Mr de Robillard advanced similar arguments before us.
The Tribunal in Archer concluded (at [58]) that: "… we do not believe that in the absence of any appellate rulings as to the merits of our decisions we should ourselves find that our decisions were incorrect. The Respondent's submissions at this point are based on the proposition that for present purposes we should determine, or at the very least assume, that all or virtually all of these decisions were not just incorrect but manifestly so. This is not, in our judgment, a course that we can or should adopt.".
The next case relied upon, namely, Comay (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 concerned, in part, whether the actual conduct of the proceedings in the tribunal under review by the Court were to be judged by reference to a standard possibly less stringent because the proceedings were of an inquisitorial nature as opposed to adversarial proceedings, an issue which does not arise here.
Seachange Management Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2011] VCAT 1406 was then relied upon. In that decision, the Acting President of the Victorian Civil and Administrative Tribunal referred to authorities to the effect that "excessive intervention" during the elucidation of evidence may lead to the appearance of bias or actual bias.
Mr de Robillard next relied upon the decision of the High Court in Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44, a case which was concerned with statements critical of evidence of the defendants' medical witnesses in previous cases. The case is relevant to the current applications by Mr de Robillard because of what was said by the High Court about waiver in the context of alleged bias.
As succinctly stated by Toohey J in Vakuata v Kelly at [17] (see also Brennan, Deane and Gaudron JJ at [5]): "… when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased".
In respect of Mr de Robillard's contentions of unconscious bias referred to below, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 ("CNY17") appears to be relied upon. The facts of that case are far removed from the present. It was concerned with a different regulatory regime in terms of which the Immigration Assessment Authority (the IAA) had to review (as it was mandated to do so) material provided to it by the Department Secretary. Material highly prejudicial and irrelevant to the particular applicant for a protection visa was included in the material that was in fact before the IAA.
It was ultimately held by the Court that the material might have led the decision-maker to make a decision otherwise than on the legal and factual merits of the case because a fair-minded lay observer might have apprehended that the material might have had an effect on the decision-maker, even if that effect was subconscious: CNY17 at [51] (Nettle and Gordon JJ), [142] (Edelman J).
To the extent that Mr de Robillard relies on pre-judgment of the outcome in the first stage of these proceedings, and also that such pre-judgment by one member of the Tribunal may infect the overall outcome, he appears to rely on McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 ("McGovern"). The analysis of the law on this basis of recusal by Chief Justice Spigelman (at [31]-[38]) appears to us to proceed on the basis that the one adjudicator is subject to disqualification because of apprehended bias. It would thus be necessary to establish that the Tribunal member who is disqualified may have influenced other members.
It appears that Mr de Robillard contends that the reasons of the Tribunal delivered on 10 December 2021 demonstrate that the Tribunal was not prepared to look at the facts relevant to the question of whether Mr de Robillard had engaged in professional misconduct or unsatisfactory professional conduct because it did not fit the pre-conceived conclusion that he is not fit to be a barrister. This submission was made by Mr de Robillard on the basis, he said, that the Tribunal chose to ignore evidence and refused to consider documents in proceedings referred to in the 2015 proceedings in the Supreme Court.
The analysis of what constitutes pre-judgment by Chief Justice Spigelman in McGovern at [14]-[24] is also pertinent.
The question is whether the decision-maker is open to persuasion, or whether the conclusion already formed is incapable of alteration, whatever evidence or arguments may now be presented, or whether the decision-maker will apply his or her opinion without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the matters under consideration.
British American Tobacco Australia Services Limited v Laurie and Others (2011) 242 CLR 283; [2011] HCA 2 was also relied upon by Mr de Robillard, but does not advance his arguments. It was a case in which a member of the Dust Diseases Tribunal found in unrelated proceedings that the company had adopted a document retention policy for the purposes of fraud. Ultimately, by majority, the High Court concluded that by reason of pre-judgment the reasonable apprehension of bias test was established. The plurality were persuaded that the judge of that tribunal had expressed himself in terms indicating extreme scepticism about the company's denials and strong doubt about the possibility of different materials explaining the difficulties in circumstances where the nature of the fraud was extremely serious.
The issue now for determination in this stage of the proceedings proceeded on the basis of the findings and conclusions reached in the first stage of these proceedings but involve different considerations, namely, what, if anything, should follow from that decision.
It does not follow from what Mr de Robillard has said that we cannot be persuaded of a particular outcome in this stage of the proceedings.
Mr de Robillard also appears to rely on the contention that if one of the Tribunal members, in hearing the matters brought for determination by the Applicant, has pre-judged the outcome, or that the apprehended bias test precludes that member from continuing to hear the matter, the Tribunal should recuse itself from further hearing the matter.
In our view, Mr de Robillard has not established pre-judgment or apprehended bias of any member and thus the issue does not arise.
We note that in our Reasons we have not expressed any views, let alone concluded views, as to what should be the final outcome in these proceedings.

[7]

The Recusal Applications sought against the Principal Member and the Senior Member

We turn to the recusal application/applications identified above. The stated grounds for those applications are set out in [62] above under the heading "Introduction". The grounds which are said to arise in relation to the Senior Member are numbered 1, 6, 8, 10, 11, 14, 15, 19 and 20 in the sub-paragraphs of [62]. The grounds which are said to arise in relation to the Principal Member are numbered 5, 6, 9, 10, 11, 12, 13 and 14. The grounds which are said to arise in relation to the Tribunal as a whole are numbered 2, 3, 4, 7, 8, 14, 16, 17, 18 and 21.
The first point to emphasise is that Mr de Robillard did not give oral evidence in the Stage 2 hearing at all. He did tender some evidence, which we have identified, in support of the recusal applications. He did make submissions in support of his recusal applications.
The documents tendered in the recusal application were identified as follows and accepted into evidence, subject to relevance: 1. Exhibit D1 - a copy of an article published in The Australian newspaper on 26 December 2021 with a photograph of the Respondent; 2. Exhibit D2 - an article in "Lawyerly Media" published 23 December 2021; 3. Exhibit D3 - an article in Lawyers Weekly 20 December 2021.
We have considered the evidence tendered in exhibits D1, D2 and D3. To the extent the documents are relevant to the recusal application, we find as follows: 1. Exhibit D1: This was headed "Sydney barrister Roger de Robillard faces sanction from NSW Bar Association". The article refers to the Stage 1 judgment and to findings made. The article then speaks of the Respondent's involvement with Mr Moti in the Solomon Islands. It also spoke of the Respondent's experience in Vanuatu in 1996. It said: "he was jailed on contempt of court charges". It claimed the Bar Association had come to his defence. It stated the Tribunal has been asked to have the Respondent removed from the Supreme Court roll and the Australian Legal Professional Register. 2. Exhibit D2: This is an article titled "Barrister faces discipline after 'gut-feeling' prompts unfounded allegations against solicitor". The article misdescribes that a Sydney-based barrister has been reprimanded. The article addresses the proceeding in the Tribunal reported in the Stage 1 decision. Various passages from the decision are set out. 3. Exhibit D3: This article is headed "Tribunal recommends barrister's removal from roll". That title is clearly not correct if it is suggesting the Tribunal made such a recommendation. The Respondent is named in the article. The article sets out the allegations made against the Respondent in the Tribunal hearing.
We cannot see how the documents marked as Exhibits D1, D2, and D3, support the Respondent's recusal applications.
The submissions and allegations upon which an application for recusal was made appears to be, in summary, as follows.
Based on a conversation between Senior Counsel for the Bar Council and Mr de Robillard, held on 22 August 2022 and a short time prior to the proceedings recommencing on that day, Mr de Robillard proceeded to allege that there must have been some exchange of information from unidentified sources within this Tribunal and Senior Counsel for the Bar Council, which gave rise to Senior Counsel having inside information about the decisions this Tribunal had made and is yet to make. This allegation arose in the context, it was alleged, where Senior Counsel had told Mr de Robillard, by reference to written submissions filed on behalf of the Bar Council, how the Bar Council understood the question of the legal personality of the Bar Council, raised in the Stage 1 hearing, had been dealt with in the reasons for the decision of the Tribunal handed down on 10 December 2021, and which would be further addressed in the Stage 2 hearing.
The particular part of the Bar Council submission which was central to the abovementioned conversation was as follows: "32. The Tribunal noted in its Stage 1 Reasons at [65]-[66] that it would address the respondent's argument that the Bar Council did not have the legal personality required to bring these proceedings. The Tribunal does not appear to have set out any explicit conclusions on this question in its Stage 1 Reasons, and the Bar Council has assumed they will be included in the Stage 2 Reasons (noting the Tribunal is not functus officio until the Stage 2 orders are made)."
In this regard, Mr de Robillard contended that the Tribunal had made no decision as to whether the Bar Council did have the legal personality required to bring these proceedings or not. He submitted that could lead the informed member of the public to the apprehension that the Tribunal was not concerned with determining the capacity of the Bar Council to appear in the Tribunal. As set out above, this was said by Mr de Robillard to lead to the further apprehension that the Tribunal simply thinks, or has decided, that the Bar Council can do no wrong.
Further, Mr de Robillard submitted the Bar Council had not addressed that issue in any detail in its submissions, nor had the Tribunal asked the Bar Council for assistance in relation to that point.
The above submission of the Respondent does contain statements which are factually incorrect. The Bar Council was asked to respond to the issue raised in Stage 1 by the Respondent, and it did set out, in that hearing, the legislative provisions and decisions which it submitted countered the Respondent's claim and established it did have a personality capable of being a party to this proceeding. It was contended by the Respondent that this matter had nowhere been addressed in the Stage 1 decision and hence it was submitted a member of the public, informed in the law, would apprehend that there is something untoward that had happened. In fact, the arguments of the Respondent and the Bar Council, addressing the issue, were set out in the Stage 1 decision of the Tribunal. It was then submitted by the Respondent there was a matter of serious concern to the informed members of the public, who would apprehend that somehow counsel for the Bar Council had "some inside information" as to what the Tribunal was proposing to do in this Stage 2 hearing.
When the hearing resumed on 24 October 2022 and until it concluded on 26 October 2022, the Respondent made further recusal applications which are identified in [62] of these reasons.
In respect of the allegations by the Respondent, we also note the following: 1. The document which is said to have "infected" the Tribunal, namely a portion of the affidavit of Mr Tolhurst, was not tendered into evidence and was not before us. 2. The complaint that the Bar Council had not tendered into evidence an affidavit of Mr Ristovski (following one of the particulars in the complaint being struck out) did not deprive the Respondent from tendering the affidavit, which he did ultimately, without objection from the Bar Council. 3. In respect of the complaint that the Bar Association had prepared two reports "almost exactly word for word" concerning his conduct, one dated 21 July 2019 and the follow-up report of 22 April 2020, fails to identify that the first of the reports was in draft, inviting a response from the Respondent, and the second was the final version. The reports concerned complaints of misconduct. In addition, the relevance of this issue, raised by the Respondent, is obscure. 4. Although the Respondent repeatedly complained that he had been unfairly treated in various interlocutory directions hearings, he failed to identify by actual events and contexts, evidence to support these various allegations.

[9]

Inside Information

This heading deals with the Respondent's identified basis for an apprehension of bias as set out in [62] subpars 2, 3 and 4.
As has already been made clear in our reasons for the final determination of this matter, the Tribunal had proceeded on the basis of accepting the Applicant's submissions and its explanation given to Mr de Robillard in respect of our Reasons on the question of the legal personality of the Bar Council.
We do not accept that a fair-minded lay observer or bystander with knowledge of all the material and objective facts, and properly informed of what was set out in our Reasons of 10 December 2021, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the current question or questions that we are required to decide. We do not accept that a fair-minded lay observer would interpret the submission by the Bar Council, referred to at par 32 of the Stage 2 submissions, that there had been a communication between Counsel and the Tribunal. The fair-minded lay observer, in our view, would have no basis for reasonably concluding that our Reasons or the Bar Council's explanation suggested that the Tribunal was not concerned with determining the question of whether the Bar Council had an independent legal personality. Nor would there be a basis acting reasonably to conclude that the Bar Council can do no wrong or that there was "something untoward" which had happened. There would, in our view, be no basis for the fair-minded lay observer to come to the view that Senior Counsel had "some inside information". There was in our view no basis for the making of this serious allegation against Senior Counsel.
We also do not accept that Mr de Robillard was able to articulate the logical connection between what he raised and a feared deviation from the course of deciding the balance of these proceedings on their merits.
We pause here also to reflect upon this recusal application insofar as it contains an innuendo or suggestion of inappropriate conduct against Ms Morgan SC. It contains a suggestion, which the Respondent stated later in his submission was not intended, that a Senior Counsel, or indeed any counsel, clearly aware of her/his professional obligations and duty to the Tribunal, would continue to act and would not take appropriate action, in a circumstance where information about a current proceeding before the Tribunal in which she/he held a brief to appear, and which informed of a decision yet to be made, came to her/his knowledge. Such a suggestion is a very serious inference or innuendo to articulate. In our view, such a suggestion should not have been made in this case.
In our view the Respondent trod a path of making recusal applications with the most serious of accusations which could be made about a member of the profession, or a member of the Tribunal, or the Tribunal as a whole, apparently feeling shielded from any personal consequence by the submission that such a matter would be of concern to the hypothetical "lay observer".

[10]

Membership of the Bar and Practising Barristers

This heading deals with the Respondent's identified basis for an apprehension of bias as set out in [62] subpars 6, 10, and 11.
There appears to be two bases upon which Mr de Robillard relies in this respect. The first is, simply, membership of the New South Wales Bar Association and the second, being practising barristers.
The complaints now raised by Mr de Robillard about the membership of the Presiding Member and Senior Member Dixon of the Bar Association and being practising barristers were clearly known to him and his counsel at the commencement of the proceedings and were not raised prior to the commencement of the proceedings against him in 2021. Even if it could be said that these matters relied upon by Mr de Robillard might give rise to a "reasonable" apprehension of bias, which we do not accept, Mr de Robillard waived any entitlement to later rely on them: Vakuata v Kelly at 587.
The "fair-minded" lay observer would also have some appreciation that, under Schedule 5, Part 4 of the Civil and Administrative Tribunal Act, provision is made for persons with knowledge of, or practising in the particular occupations within the compass of those provisions, be it as architect, solicitor, or barrister, have a role to play in proceedings against others in those occupations. To that extent, the judgment of peers has been provided for.
The second basis set out is the contention concerning the Principal Member and Senior Member. Although not articulated as such, the submission of the Respondent amounts to an allegation of actual bias from the outset of the proceeding and that the Presiding Member and Senior Member had from the outset a closed mind.
The Presiding Member and Senior Member have each published separate reasons rejecting the allegation.
To the extent that it is necessary for the Tribunal to also deal with these allegations we do so as follows.
In Reid v Commercial Club (Albury) Ltd at [68]-[73], it was held (per Gleeson JA, with whom Emmett JA and Tobias AJA agreed) as follows: "[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented': Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: 'The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.' [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicolls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: 'The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.'"
The tests set out above simply have not been met. No clear proof of the allegations was presented by Mr de Robillard.

[11]

Treatment of Evidence and Finding

This heading deals with the Respondent's identified basis for an apprehension of bias as set out in [62] subpars 6, 7, 10, 15, and 18.
In respect of findings of fact made by the Tribunal in its reasons in Stage 1, the fair-minded lay observer acting reasonably and having read the reasons as a whole, would understand the reasoning process and findings. The fair-minded lay observer would not, without the identification of precisely why findings were clearly wrong, conclude that in the second stage the Tribunal might not bring to bear an impartial mind on the separate issue, namely, what the ultimate outcome of the proceedings might be. The fair-minded lay observer would not take the view, in the absence of a properly articulated demonstration of actual error in the acceptance or rejection of evidence, that the Tribunal would or should revisit its earlier findings.
In addition, in relation to the alleged errors as to the findings of fact that were made, we adopt the same approach as in Archer referred to by Mr de Robillard.
The fair-minded lay observer would understand in general terms the processes of the Tribunal and appreciate that challenges to findings of fact are matters for an appeal.
The fair-minded lay observer would see from the reasons that the evidence concerning Mr Ristovski and his affidavit referred to, was not tendered by the Applicant because of what occurred at the commencement of the proceedings. The Applicant had originally made reference to the affidavit of Mr Ristovski in the particulars of the complaints but was objected to by Mr de Robillard. As a result of that, the particular was deleted. It was at all times open to Mr de Robillard to tender the affidavit, which eventually he did.
The fair-minded lay observer would also, by reference to a proper reading of our reasons, identify that the issues raised by Mr de Robillard in respect of the 2015 proceedings were not overlooked and were extensively dealt with.
In respect of the reliance on the evidence given by Mr de Robillard in the proceedings in stage 1, the fair-minded lay observer would recognise that it was he who introduced into evidence his "gut feeling" and what that told him (Stage 1 Reasons at [59]). In addition, as the Reasons point out at [68(3)], the Council relied upon that evidence and the Tribunal at [18] took account of that evidence together with the other material concerning the allegations against Mr Wells, none of which leads us to conclude that the fair-minded lay observer would regard the analysis as giving rise to an apprehension of bias.

[12]

Prejudicial Material

This heading deals with the Respondent's identified basis for an apprehension of bias as set out in [62(8)].
A complaint of the Respondent about the manner in which the Bar Council had conducted its' case against him was that it had managed the hearing to the effect that Mr Tolhurst was not giving evidence in the Stage 2 hearing. The evidence which set out the Respondent's disciplinary record was presented by Mr Heger, the current CEO of the Bar Association. The consequence for the Respondent appeared to be that he could not obtain from Mr Tolhurst's evidence, which the Respondent had referred to in his submissions, about a series of actions taken against him which were, he alleged, orchestrated by a former CEO, Mr Selth.
The circumstance of Mr Tolhurst not being made available for cross-examination by the Respondent in Stage 2, was said by the Respondent to be the subject of his recusal application on the basis of an apprehended bias in the Tribunal toward the Respondent. This arose, as submitted by the Respondent, because the Tribunal had an obligation to ensure procedural fairness was applied to him and the Tribunal, in not requiring the Bar Council to produce Mr Tolhurst for cross-examination in Stage 2, had not provided the Respondent with that procedural fairness.
As Mr de Robillard himself acknowledged, the material originally filed as an attachment to the statement of Mr Tolhurst, and which addressed his disciplinary history, was not tendered and was not admitted into evidence. The particular evidence had been objected to by the Respondent's counsel as not relevant to a Stage 1 hearing. The evidence is not referred to in our Reasons and was not relevant to the issues for determination in Stage 1.
In our view, a fair-minded lay observer with knowledge that the proceedings are not inquisitorial and that the material is not in evidence, will recognise that it was not material which might reasonably cause an apprehension that we might not bring an impartial mind to the resolution of the question currently before us, namely, what action should be taken given our Reasons of 10 December 2021 and by reference to the disciplinary history of Mr de Robillard, which is now in evidence before us.
In our view, the decision in CNY17 v Minister for Immigration and Border Protection does not in any way support Mr de Robillard's contentions. The case dealt with different legislation and different circumstances where the material of concern was actually before the Tribunal considering the review.

[15]

24 October 2022 Recusal Application

This heading deals with the Respondent's identified basis for an apprehension of bias as set out in [62(4)].
On 24 October 2022, shortly after the resumption of proceedings in this Stage 2, the Respondent made a third recusal application. The precise grounds are not entirely clear but appear to be found in the following submissions.
The first ground relates back to the same argument raised in the 22 and 23 August 2022 Recusal Application. Mr de Robillard submitted as follows: "RESPONDENT: The first is - and that was said in support of my application that the tribunal, at least your Honour with respect and certainly Senior Member Dixon, should recuse themselves because on what Ms Morgan said to me, she seemed to be aware that a decision had been made, when I'm not aware of that decision. That's one point." The decision referred to was the question as to the legal personality of the Bar Council.
This ground was then elaborated upon but essentially covered the same argument in respect of the personality of the Bar Council and our dealing with it as raised in the First Recusal Application.
The next ground it appears must be drawn from the following submission: "RESPONDENT: Yes, thank you. The next point is this what - in my respectful submission, the way I had understood the proceedings to have been conducted was that there would be, first of all, a finding of misconduct or non-misconduct equivalent to guilt or not guilty. Basically the misconduct has been established and has been established to a level of misconduct, professional misconduct, not just unprofessional misconduct and Robinson says certain things about that. That's one point but what my concern is that in their reasons, the tribunal did not say, 'We are reserving our decision for later.' The tribunal said, 'These are the issues that have been raised' without analysing in any way, shape or form and then say, 'We will address that issue later in these reasons.' Not 'in our reasons ultimately', but 'in these reasons'. Then the tribunal simply did not address that issue and so at the moment, I'm being asked to defend myself and I'm being defamed and I'm being restrained - and I will come to that in a minute - by the Bar Council. I have been defamed because the Bar Council and this tribunal have allowed publications - …"
The reference to "Robinson" must, it appears, be understood as a reference to the decision of the Court of Appeal in Health Care Complaints Commission v Robinson [2022] NSWCA 164.
The third basis appears to be as follows: "RESPONDENT: Well, my respectful submission is that the - the first proposition is this. That once an application for recusal on the grounds of apprehended bias has been made against the tribunal, it is the tribunal's duty, we say, or I say, with respect, to analyse that application and to publish reasons as soon as possible. That's where I say there's a difficulty. The tribunal ought not to simply say, 'We reject your application about recusal. We will deal with it at the end of the whole proceedings.' In Robinson, from my quick reading of a judgment this morning, there were something like ten hearing days, non-consecutive hearing days. … RESPONDENT: In - yes your Honour, including the fact that the tribunal has so far refused to publish reasons for its decision made on 22 or 23 August to recuse itself and in my respectful submission, it behoves the tribunal, in order to maintain respect and confidence in the administration of justice, for the tribunal to have published its reasons before today in relation to the recusal application."
This was followed by the following: "RESPONDENT: … here is a totally different matter because of the constant issues which I've encountered as to procedural fairness by - on the - by the tribunal, especially in relation to Her Honour Justice Cole, which has been the subject of many written complaints, including I've written to the President of the tribunal about it. Now, I'm not - I have no knowledge of any case which may attribute to the tribunal the actions and decisions of Her Honour Justice Cole but in my respectful submission, the - Justice Cole is acting on behalf of a tribunal and everything that she does reflects on this tribunal as far as member of the public are concerned. I'm talking about apprehension of bias. What the member of the public would apprehend. … And what I'm saying is that the decision made and published on 20 October 2022 by her Honour Judge Cole, in the name of the tribunal, and the associated exchanges of correspondence, again raised in the mind of a public, a very strong concern and apprehension about the procedural fairness and the apprehension of bias with the tribunal. In relation to my matter and including in her reasons published on 20 October, Justice Cole simply ignored several of my submissions, including the fact that section 28 of the Civil Procedure Act - sorry, not the Civil Procedure Act, the Civil Administrative Decision - Civil Administrative Tribunal was relevant to the proceedings. And in fact her Honour actually when - I would invite members of the tribunal to look at the general - what is called a general application, which was filed, with the purpose of enjoining me from contacting any member of the current Bar Council, in circumstances where the only evidence is that I've always copied and once written directly to the President of the Bar Council or to the Senior Vice President because of my reading of the constitution and the duty of the president. So in other words, what I'm saying is, these whole proceedings, starting back at the first directions hearing, have been infected by lack of procedural fairness and if this - if members of this tribunal do not take a proper look at what Justice Cole has been doing and thereby adopts what she has been doing and in relation to that, my application is - my formal application is that the orders made by her Honour on 20 October-- HIS HONOUR: Sorry, we're dealing just with the first point first. RESPONDENT: Well, including the fact that in her reasons, Justice - Judge Cole stated that Ms Morgan appeared for the applicant when that just was not the case. She was not even present at the proceedings but this will have consequences as to costs when I have to pay costs. HIS HONOUR: Look, again, I think you're straying outside of what is necessary for us to know for this application, but you have made it clear that the part of the reason that this tribunal would recuse itself from further hearing includes the interaction that you have had with Justice Cole as particularly set out in the decision that she published on - is it-- RESPONDENT: 20 October. HIS HONOUR: On 20 October. So we understand that. RESPONDENT: But with respect, the tribunal would not understand the portent of what Justice Cole has decided without then looking at the general application and looking at the submissions but more importantly, with respect, the other issue which reflects - which would invigorate the apprehension of bias is the manner in which the Bar Council has been allowed to maintain and prosecute these proceedings without any criticism whatsoever."
When questioned by the Presiding Member as to the alleged treatment of Mr de Robillard by Judge Cole the following exchange took place: "HIS HONOUR: Could you direct me to any part of the legislation that controls the way in which this tribunal operates that gives us the power to deal with any of those matters that you've raised in relation to Judge Cole? I don't understand where the power would come from for us to do the things that you're asking us to do in relation to Judge Cole. RESPONDENT: In my - I agree this is not very clear and I would need some time to look at it, with respect, and in fact when the application was made, I had expected to - that the full bench was - the three members of a tribunal would deal with this application but somehow it was brought in as a general application when there's another form which talks about interim applications. … RESPONDENT: … and I take the point but it's not very clear what the tribunal - how the tribunal can deal with what Justice Cole has done. But in my respectful submission, there's a general power for the tribunal - and it's mentioned in the Robinson case - there's a general power for the tribunal to make orders in relation to the running of a proceedings before the tribunal, that's one. And secondly, there are powers under section 36, I believe, which is the equivalent of section 56 of the Civil Procedure Act, where the tribunal has the power to make orders for the just, quick and fair determination of these proceedings."
After hearing from Mr de Robillard, his application for recusal was refused. These are our reasons.
It was our understanding that the decision made by her Honour, the Deputy President, of 20 October 2022 related to a separate general application made by the Bar Council concerning Mr de Robillard's direct contact with members of the Bar Council, and not its solicitors, about the proceedings before us with the object of obtaining orders from the Tribunal to stop such conduct.
Applying the principles summarised earlier in these reasons, we reject the claim that a fair-minded lay observer, acting reasonably, with a broad knowledge of the objective facts, and taken to have knowledge of the nature of the proceedings, and the context in which separate functions are performed within the Tribunal, might apprehend that the Tribunal, as currently constituted, might not bring an impartial mind to the resolution of the issues the subject of this Stage 2 hearing.
In addition, in our view, Mr de Robillard has not satisfied the two steps analysis as formulated in Ebner v Official Trustee in Bankruptcy, which we set out above.
In respect of the first ground, we reject the ground for the same reasons as we did in respect of the first recusal application. Additionally, in our view, a fair-minded lay observer would not comprehend that the publication of reasons at a later date, in respect of a recusal application made during proceedings that had not yet concluded, would give rise to an apprehension of bias.
The rejection of a recusal application with notice that reasons would be published in due course is well accepted practice and could not be regarded by the fair-minded lay observer as having any logical connection with the matters required to be decided in this stage of the proceedings. The publication of reasons at a later date, does not establish a basis for a feared deviation from the course of deciding this second stage in the proceedings.
In respect of the alleged treatment of Mr de Robillard by Judge Cole in the conduct of the case management of these proceedings, and directions made for the hearing of this matter, we note that the complaints made, by the Respondent, are of the most generalised nature and are not supported by any evidence but are mere assertion.
There is nothing raised to suggest that the Tribunal, as currently constituted, has any relevant knowledge of the complaints made about the conduct of those directions hearings. Nothing was identified to establish how Mr de Robillard's complaints in any way might impact on our decision making.
Mr de Robillard himself acknowledged that he could not point to any authority to suggest that Judge Cole "acting on behalf of a tribunal and everything that she does reflects on this tribunal as far as members of the public are concerned", might influence us.
Whoever the "members of the public" who we were referred to are, is also not clear. A fair-minded lay observer acting reasonably with the basic understanding of the timetabling of a hearing would not, in our view, attribute to us, on the submissions advanced by Mr de Robillard, an apprehension of bias.
During his submission, the Respondent stated that at a particular point in the hearing he observed the General Member looked surprised. It is not clear how Mr de Robillard's perception of an alleged surprise by the General Member is in any way linked to the tests for apprehension of bias. In any event, the General Member joined in the refusal of the Respondent's recusal application.
Having considered all the bases that Mr de Robillard relied on, we were of the view that none of them had any substance and for that reason the Tribunal refused the recusal application.

[18]

Introduction

On 23 August 2022, I refused to recuse myself from further hearing this matter as sought by Mr de Robillard in two applications on the basis of an apprehension of bias on my part. These are my reasons for refusing the application.
For convenience, I refer to the applications made by Mr de Robillard as the First Recusal Application and the Second Recusal Application.
The principles relevant to an application for recusal on the basis of apprehended bias are well settled and are set out in the joint decision of the Tribunal, set out above. I adopt those principles for my decisions.
I deal with the Second Recusal Application first.
During the course of proceedings on 23 August 2022, and whilst addressing his grounds for the recusal in the First Application made by Mr de Robillard, he made a "special application" that I should immediately recuse myself from hearing this matter any further.
The details of the complaints are set out in the Tribunal's reasons on the Respondent's recusal application.
Having heard Mr de Robillard's application that I recuse myself on the grounds identified by him, I declined to do so.
I declined to recuse myself in respect of this application as none of the grounds have merit and are wholly without substance. They do not satisfy the test of apprehended bias as formulated in the decisions referred to above.
Not only did these grounds not establish that a fair-minded lay observer or bystander might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that the Tribunal is required to decide, there was no articulation of any logical connection between the matters raised and the feared deviation from the course of deciding the matters before the Tribunal on their merits (the second limb described in Ebner).
In my view, the fair-minded lay observer or bystander would understand that a request for a witness to attend for cross-examination, if made at the last minute, could have a delaying impact on the hearing of the matter as a whole, and an enquiry as made was not unusual.
In my view, the fair-minded lay observer or bystander would regard what is asserted and is simply a perception of "staring" as no more than close attention by a tribunal member, through spectacles, to what a party was saying or advancing in respect of matters relevant to the proceedings. There was no suggestion that I looked at the other counsel differently.
It is difficult to identify how my "body language" could possibly reasonably portray to the lay observer that I knew the Respondent by reputation, whatever that reputation he referred to might be, or that I had looked at the records, which had not been identified by him, to draw a conclusion adverse to the Respondent in the final determination of the proceeding. I also deny I exhibited such body language or that the lay observer would come to such a conclusion.
Further, the Respondent did not identify in what manner I had failed to take into account in the "management" of the proceeding the way in which the Bar Council was conducting the case. The Respondent did not identify what the relevant questions were, which he said I had asked, and did not identify how those questions "tightened-up" the Bar Council's case.
Additionally, the Respondent failed to identify the questions put to Senior Counsel for the Bar Council, during cross-examination of the Respondent (in Stage 1) or how it was said those questions crystallised issues which otherwise would not have been crystallised.
The absence of details referred to in the paragraphs above would, in my view, be regarded by the lay observer as unsubstantiated conjecture.
The Respondent also claimed he had observed me writing notes furiously and handing them to the Principal Member. This was said to add to the recusal application made in relation to me.
Whilst I accept I had written notes during the hearing on occasions and handed the note to the Principal Member, I reject any suggestion that the way in which I wrote the note and handed it to the Principal Member would give rise to any apprehension of bias against the Respondent in the eyes of the impartial observer. The action identified does not satisfy the requirements for a recusal as we have set out earlier in these reasons.
The application fell far short of satisfying the principles set out in the joint reasons of the Tribunal, and for that reason the application was dismissed.

[20]

REASONS FROM THE PRINCIPAL MEMBER ON THE RECUSAL APPLICATIONS DIRECTED TO HIM PERSONALLY.

This heading deals with the Respondents identified basis for an apprehension of bias as set out in [62] subpars 3, 5, 6,and 9-14.
I have refused to recuse myself from the hearing of this matter as the reasons so far have identified. I rely upon the principles which we have set out in these reasons which address the law in relation to recusal on the ground of apprehended bias.
In relation to the recusal application which the Respondent submitted arose from what he described as the Tribunal's attitude that the Bar Council could do no wrong, I reject that application as not having a foundation arising from any reasonable reading of the transcript of the proceeding. I conclude the fair-minded lay observer would not apprehend the bias nominated by the Respondent in this recusal application.
In relation to the recusal application which is based upon a submission that I am a barrister, I reject that application on the same basis as the Senior Member has rejected same and I adopt his reasons.
In relation to the recusal application based upon my holding an appointment in the State of New South Wales as an Acting District Court Judge, no proper basis for the recusal application was enunciated by the Respondent. The Civil and Administrative Tribunal Act 2013 (NSW) at Schedule 5 entitled 'Occupational Division' requires the constitution of the Tribunal in the hearing of a complaint against a barrister to be constituted as follows: 18 Division functions under Legal Profession Uniform Law (NSW) (1) The Tribunal, when conducting a hearing into a complaint for the purposes of the Legal Profession Uniform Law (NSW), must be constituted with Division members in accordance with whichever of the following constitutions the President determines as being appropriate for the particular case - (a) in the case of a complaint against a barrister - (i) one member with a judicial qualification, one member with a professional qualification who is a barrister and one general member, …"
In relation to the recusal application based upon the submission that both the Senior Member and I are barristers and that creates a conflict, I rejected that ground and the recusal application. As set out above, the Civil and Administrative Tribunal Act 2013 (NSW) at Schedule 5 specifies that one of the members of this Tribunal is to be a barrister. The fact that I, in addition to holding a judicial qualification, am also a barrister, does not, I conclude, create any conflict of any type in the determination of this case. I reject the recusal application based upon that ground. I do not and did not accept the fair-minded lay observer or bystander, would apprehend any bias against the Respondent arising from the circumstance alleged by the Respondent.
In relation to the recusal application based on the submission that I am also an accredited Family Law Arbitrator, and as such obtain appointments to arbitrate Family Law cases from the Federal Circuit and Family Court of Australia are on the recommendation of barristers and solicitors, I would be seen to have a natural disposition to favour the Bar Council, or the solicitors acting for the Bar Council, I reject such an application. I do not accept the fair-minded lay observer or bystander, with the attributes and knowledge referred to in the cases cited by us in these reasons, would conclude I would not bring an impartial mind to the hearing of this case. The fair-minded lay observer would also know I am bound by the oath taken by me at the time I accepted my appointment as an Acting Judge of the District Court of NSW.
In relation to the recusal application based upon the referral of the Respondent for discipline arising from conduct identified by Justice Rees in the Family Court of Australia (as it then was), I also reject that application. The Respondent submitted that as I had also been a judge in that court, the fair-minded lay observer or bystander would apprehend I would be biased towards the Respondent. The exact explanation for how that connection would be made by the fair-minded observer was not articulated by the Respondent, however, it appears to be based upon an observation that Justice Rees and I had been judges in the same court. I do not accept the fair-minded lay observer or bystander would apprehend any bias against the Respondent arising from the circumstance identified by the Respondent. Again, the fact that I am an Acting District Court Judge and have taken a judicial oath to hold that appointment, is relevant to the view the said lay observer or by-stander would take.
I also note here that the recusal applications made in relation to myself, as set above, on the grounds I am an arbitrator, a barrister, a member of the New South Wales Bar Association, and an Acting District Court Judge, were all available in the hearing of Stage 1 and no recusal application was made at that time.
In relation to the recusal application which is said to arise from the manner in which I conducted myself in the Stage 1 hearing, the Respondent has said that arises from the Tribunal members (specifically the Principal and Senior Member) interrupting him when he was giving evidence. This is a reference, as I understand the complaint of the Respondent, to the situation where the Respondent, having taken an oath or affirmation to give his oral evidence truthfully, in our view, strayed from the task of giving evidence into submission. It was necessary to remind the Respondent that he was represented by Senior Counsel who would make submission for him. After the proceeding had been interrupted on a number of occasions because the Respondent was making submission and not answering a question asked or a proposition put, we decided it would be helpful to the Respondent if we offered him the opportunity to make his own individual submission at the conclusion of the hearing following the submission made by his counsel. As the transcript shows, we did invite the Respondent to make submission following his counsel's submissions in the Stage 1 hearing.
In my view, the fair-minded lay observer would not hold an apprehension of bias on the part of the Tribunal or myself, given the opportunity we extended to the Respondent, as above described. I consequently rejected the recusal application as it was stated to relate to me.
One of the Respondent's recusal applications was said to arise because I had placed on the record that I had received a communication from the Bar Association which placed me in some difficulty so far as continuing to sit on the Tribunal in this hearing. Such an allegation was not matched with any specific reference to the transcript, nor was the circumstances surrounding such alleged statement articulated by the Respondent.
I deny that I received any communication from the Bar Association, or a member of the Bar Association or the Bar Council, or any person representing the Bar Council in this proceeding, which in any way referred to the proceeding now under consideration or any other subject which might have given rise to any conflict on my part to continue my role in the hearing of this case. Had any such event occurred, I would have immediately informed the parties, the President and the other Tribunal members, and recused myself from the further hearing.
The Respondent's recusal application was directed in part to me, insofar as he submitted that I, together with the Senior Member, had displayed body language during this hearing or in the Stage 1 hearing which portrayed that I knew of the Respondent by reputation, that I had looked at the records (not stated which records) and had decided the Respondent "is not someone we want among us as a barrister, we need to get rid of him … he is not one of us". I deny I exhibited any such body language. No specifics were provided of how I allegedly displayed any such body language. For my part, I had no knowledge of any reputation apparently known in relation to the Respondent. I did not read any evidence which was not admitted to evidence as recorded in this decision and in the Stage 1 decision and I knew nothing of the disciplinary history of the Respondent until the evidence of Mr Heger, attesting to same, was admitted to evidence.
In any event, I rejected the recusal application based on the allegation in the preceding paragraph because I did not accept the fair-minded lay observer or bystander would apprehend any bias against the Respondent arising from the circumstance alleged by the Respondent.
To the extent that the ground for recusal, identified by the Respondent as the Tribunal taking or holding a view that the Bar Council can do no wrong, is directed at me, I rejected that accusation and recusal application. This is, in my view, nothing more than a view taken by the Respondent in response to the decision published in relation to the Stage 1 hearing. There was no particularisation of the allegation provided by the Respondent. No particular finding, observation or determination made by the Tribunal was cited in support of this particular basis for a recusal application. I reject the recusal application on the ground alleged on the basis that I do not accept the fair-minded lay observer or bystander would apprehend any bias against the Respondent arising as alleged by the Respondent above.
One ground relied upon by the Respondent in support of his recusal application was directed to the Senior Member and myself. The Respondent submitted the ground arose from a collegiality which he had observed between members of the Bar Association, the Bar Council, and "the judges". That members of those groups all support each other. The underlying allegation is that the Senior Member and I would support the Bar Council's action before us because we were both barristers and members of the Bar Association.
For my part, I reject the submission of the Respondent addressing the collegiality ground for recusal. Again, no specific evidence was provided to support the submission. No part of the transcript of evidence was referred to. No portion of the decision published in relation to Stage 1 was cited.
I concluded there was no proper basis for making the recusal application against the Tribunal or myself. I did not accept the fair-minded lay observer or bystander, would apprehend any bias against the Respondent arising as alleged by the Respondent above.

[22]

The issue of the undecided point on whether the Bar Council is an entity capable of bringing this proceeding

The Respondent raised as a matter to be determined by us, whether we had determined the issue raised in the Stage 1 hearing as to the Bar Council's status and ability to bring the current proceeding. He said that the Applicant, through its' counsel, had informed him that the Tribunal had made that determination and that statement gave rise to an application for recusal of the Tribunal on the basis that the Council was privy to some information provided from outside of the hearing before the Tribunal.
On the third day of the hearing, we asked the Respondent to specifically address the issue relating to his assertion that the Tribunal had not decided the issue of the Bar Council's status. Some time was spent, as the transcript evidences, by the Tribunal trying to have the Respondent address that issue. Ultimately, the Principal Member sought to crystallise what the Tribunal understood the Respondent's position might be. The following was put to him, and he was asked to clarify whether it did capture his submission on the point (24 October 2022 transcript, p 7): "If you're correct what do we do about it. You've heard what Ms Morgan says should happen if we haven't given specific reasons. If we haven't dealt with that issue, she says, 'Well, you can deal with it in the reasons published in this part of the hearing.' Because if you're correct and if you had appealed on that point - if you could, I don't know - but if you had appealed on that point and if you're correct that we hadn't dealt with it, then consistent with Robinson, the Court of Appeal would have sent it back to us to decide that point and so that's why I say, if you're correct, why is it that we can't decide that point in the reasons we're going to publish at the end of this hearing?"
In response, the Respondent made submissions which we sought to capture into the following words. Mr de Robillard said, "Because the failure to determine the matter properly raised in stage 1 in the circumstances of this case, gives rise to an apprehension of bias." The Respondent agreed that captured his submission and added there was "only one small issue". He then made further submissions. He said the current circumstance is "totally different" because "of the constant issues which I've encountered as to procedural fairness by - on the - by the tribunal, especially in relation to Her Honour Justice [sic] Cole, which has been the subject of many written complaints, including I've written to the President of the tribunal about it."
We pressed again to try and capture the essence of what we understood the Respondent was submitting. We asked him if his case was "[t]he failure to determine the matter properly raised in stage 1 in the circumstances of this case gives rise to an apprehension of bias." The Respondent agreed that it was and that it has been effectively compounded by the Tribunal failing to publish forthwith its' reasons for refusing the applications made by the Respondent that the Tribunal and individual members of the Tribunal should recuse themselves from the further hearing in the matter (24 October 2022 transcript, p 9).
We refused to recuse ourselves from the further hearing of this action and did so on the basis that we did not accept the fair-minded lay observer or bystander would apprehend any bias against the Respondent arising as alleged by the Respondent.
We have set out, at the commencement of these reasons, our decision and finding in relation to the Council of the New South Wales Bar Association having an independent legal personality which enables it to be a party to this proceeding.

[24]

A request that the Respondent be advised what pages from the affidavit of Mr Tolhurst, read in the Stage 1 hearing are before the Tribunal AND the request that the Council make Mr Tolhurst available for cross-examination by the Respondent in this Stage 2 hearing

On 23 August 2022 (the second day of this hearing in relation to Stage 2), the Respondent made an application that Mr Tolhurst, a witness in the Stage 1 hearing, be called as a witness by the Council in order that the Respondent might cross-examine him and that if he is not called then "all of the evidence that was there before should not be taken into consideration" (23 August 2022 transcript, p 33). We had assumed the Respondent was referring to the evidence of Mr Tolhurst accepted in the Stage 1 hearing.
The application was opposed by the Bar Council. It submitted that the evidence of Mr Tolhurst has now been subsumed by the findings made by the Tribunal. To the extent that the content of that affidavit contained detail of disciplinary proceedings taken against the Respondent, those portions were not read and that evidence is now given by Mr Heger.
In support of his application that the Tribunal direct the Bar Council to make Mr Tolhurst available for cross-examination by the Respondent, he said he "was not aware or even conscious of the fact that I would not be allowed to cross-examine Mr Tolhurst." Further, he submitted, "I assumed when we objected to annexure B that Mr Tolhurst would then be forced to provide further evidence in relation to which I could then cross-examine him, the first submission. The second submission is this: that at all times the tribunal has had and the informed member of the public would assume that the tribunal has read Mr Tolhurst's affidavit. At least the tribunal has constructive notice of that affidavit." Additionally, he said, "I'm entitled to cross-examine Mr Tolhurst about his affidavit because you have taken that into account".
The Respondent also raised an issue of whether Stage 1 has been completed, and thereby not capable of being revisited), or whether the hearing of the Council's application is still at large and thereby permitting the Respondent to cross-examine a witness who had given evidence, confined to the issue of whether the Respondent was guilty of professional misconduct in Stage 1, and who has not been called in relation to evidence relevant to Stage 2, which hearing arises from the Stage 1 determination.
The Respondent submitted it was necessary and relevant for the Tribunal to hear further from Mr Tolhurst because: "I've been prosecuted and I'm not saying persecuted, prosecuted since 1998 by Mr Selth and there's a whole trail of paperwork about that and it's evident in the 2004 determination of the tribunal … I need to understand - the tribunal needs to understand from Mr Tolhurst what exactly has happened between Mr Selth and Mr Tolhurst in relation to my matters. That's important because of the ongoing complaint about abusive conduct and discriminatory conduct against me."
The Respondent further stated that Mr Tolhurst "has been the person who was there when the decision was made to start this prosecution". He stated, "what Mr Tolhurst did under the guise of the Bar Council is to cancel my practising certificate three days before it would have expired in any event."
Further, the Respondent submitted: "There is a demonstrated campaign against me within the Bar Association and the Bar Council which the tribunal cannot, with respect, determine without me being allowed to agitate those matters."
The Respondent further submitted: "It's not to the point, with respect, to say that this is all subsumed in everything else because what this all bears on the basic decision to still be determined whether I'm a fit and proper person to be a barrister and for the tribunal to decide whether I'm a fit and proper person the tribunal needs to know to what lengths I've been pushed when I'm an angry person today, well that's after 1998 and I apologise for my anger."
The argument had not been concluded when the Tribunal took the oral evidence of Mr Heger. That evidence continued until the end of the second day of the hearing and it became necessary to arrange for further hearing dates to be allocated to the matter. That was done, and the further hearing was conducted on 24, 25 and 26 October 2022.
On 25 October 2022, at the conclusion of the cross-examination of the Bar Council's witnesses, the issue of the availability of Mr Tolhurst for cross-examination was raised. The Council raised the matter for the assistance of the Respondent and informed the Tribunal that Mr Tolhurst had been available for cross-examination in the hearing before the Tribunal in 2021 and the Respondent's counsel had informed the Council that he was not required. In our view, this was a significant factor against Mr Tolhurst being called at this stage of the hearing for cross-examination. The Council informed the Tribunal that it opposed any application by the Respondent to cross-examine Mr Tolhurst.
The Respondent submitted that he would have liked to cross-examine Mr Tolhurst because the evidence which Mr Heger was able to give did not go as far as the Respondent would have wished. Further, the Respondent forecast that he would like to give oral evidence the next day when the Tribunal was convening for the fifth day.
On 26 October 2022, following the completion of the evidence of Mr Moore, we reminded the Respondent he was proposing to continue his application to be able to cross-examination Mr Tolhurst.
The Respondent then informed us that: "As long as there is not going to be some sort of Brown v Dunn point taken against me when I make submission about Mr Tolhurst's affidavit on its' face, then I may not need to see Mr Tolhurst."
The Respondent did not press his application further.

[26]

The Evidence identified as relied upon by the Bar Council in Stage 2

The Council identified the further evidence it was relying upon in the Stage 2 hearing. It reaffirmed that the whole of the evidence given in the Stage 1 hearing, together with the determination made by the Tribunal at Stage 1, was available to the Tribunal in this hearing.
The further Affidavit evidence which was relied upon was stated as: 1. Affidavit of Andreas Heger affirmed 28 January 2022 with exhibits labelled AH1. (The affidavit was admitted to evidence and marked as Exhibit A4. The annexure labelled AH1 was admitted to evidence and marked as Exhibit A5.) 2. Affidavit of Christopher Moore sworn 8 March 2022 with annexures attached (admitted and marked as Exhibit A6). 3. Affidavit of Christopher Moore sworn 27 September 2022 with annexure (admitted and marked as Exhibit A7).
The Respondent objected to the admission of the affidavit of Andreas Heger sworn 28 January 2022 together with the exhibits to the affidavit labelled AH1, submitting the Bar Council needed to show when leave had been granted to permit the filing of the affidavit. The Council relied upon the orders made by the Tribunal on 10 December 2021: "(1) The Tribunal finds the respondent guilty of unsatisfactory professional conduct and professional misconduct. (2) The matter is stood over for further hearing to a date to be fixed by the Registrar by arrangement with the parties. (3) The Applicant Council is to file and serve any further documents it seeks to rely upon for the further hearing of this matter, by the close of business on 28 January 2022. The respondent is to file and serve any further documents he seeks to rely upon, for the further hearing, by the close of business on 28 February 2022. Each of the parties is to file five copies of each document. (4) Further directions in relation to the filing of evidence and submissions are to be made in consultation with the parties, at the time the matter is set down for further hearing."
The Council relied upon the filing of the affidavit on 28 January 2022. The affidavit was admitted subject to further specific objections as to its' content. It was marked as exhibit A4.

[37]

Complaint by Somerville Legal on behalf of Client B - November 2017 1. The complaint gave rise to two Grounds. 2. Ground 1 of the complaint alleged the Respondent's conduct during a proceeding was in breach of rules 3, 4, 8 and 9 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (LPUL Rules). 3. On 10 November 2017, the OLSC referred to the Bar Council a complaint by Somerville Legal on behalf of their client, Client B. 4. The complaint arose out of a proceeding for recovery of debt. 1. The Respondent acted for an organisation named as AABC. Judgment debt was entered against the Respondent's client. 2. The Respondent, as President of the AABC, failed to arrange payment of the judgment debt. 3. As AABC's advocate in the proceeding, the Respondent failed to arrange payment of a judgment debt as ordered by the Court. 1. Ground 2 alleged the Respondent acted in breach of rules 13(c) and 101(f) and (g) of the LPUL Rules by placing himself at risk of becoming a witness in his client's case, accepting instructions in circumstances where he had reasonable grounds to suspect that his own personal or professional conduct may be attacked in the case, and accepting instructions in circumstances where he had a material financial or property interest in the outcome of the case apart from the prospect of a fee. 2. On 21 February 2018, the Respondent was given notice of the complaint and invited to make submissions. No response was received. 3. A draft report was prepared by the Professional Conduct Committee which was provided to the Respondent on 5 February 2019. The Respondent was invited to respond. No response was received. 4. At its meeting 6 June 2019, the Bar Council determined the complaint and thereafter provided a Statement of Reasons which stated the Bar Council was satisfied the Respondent had engaged in unsatisfactory professional conduct. 5. The Bar Council reprimanded the Respondent. 6. A formal reprimand was sent to the Respondent on 17 June 2019.

[40]

The Affidavit evidence of Christopher Edward Moore sworn 8 March 2022. (Exhibit A6)

We have noted the following in the evidence of Mr Moore which we have seen as particularly relevant to the determination we are required to make. 1. Mr Moore is a partner in the legal firm Hicksons. His firm has been engaged to act for the Bar Council in this proceeding. He is the solicitor with carriage of the matter now under determination at Stage 2. 2. On 4 January 2022, Mr Moore received from his client, a copy of an email dated 4 January 2022 from the Respondent to Michael McHugh SC, President of the Bar Council. 3. The email was signed "Roger de Robillard, Barrister". A copy of the email was annexed to Mr Moore's affidavit and marked "A". 4. The document is a copy of an email from the Respondent to Michael McHugh SC of Wardell Chambers. The email, dated 4 January 2022, commenced with the words "Dear President", and included the following: "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 function of the Council, personally responsible for the abusive conduct towards me in relation to the NCAT proceedings. I have often brought issues to your personal attention. It now appears that you have misused the media to cause inaccurate information being published against me." There are other statements in the email which are accusatory of both Mr McHugh SC (as he then was) and prior presidents of the Bar Association.
We have included this evidence as we consider it supports a conclusion that the Respondent had not, at the date of the email, accepted responsibility for his conduct, found to be professional misconduct by us at Stage 1.
Mr Moore, also included a copy of part of a text message initiated by the Respondent to Ms Tayah Stevenson, solicitor at Hicksons, which contains the sender identity as "Roger de Robillard, Barrister." The text message is dated 28 January 2022. It is the Council's case before us that the continued use by the Respondent of the descriptive "Barrister" beside or under his name on written communications from him, is a breach of his undertaking to the NSW Bar Association, not to represent that he is a practising barrister.

[42]

The Oral evidence of Mr Heger.

Mr Heger gave oral evidence on 23, 24 and 25 August 2022. His evidence in chief was very short. The balance of the time he was giving evidence was during his cross-examination. Although the time in the cross-examination of this witness was extended because of the necessity for him to access documents in relation to which he was asked questions, we have concluded that much of the cross-examination related to the Respondent's attempt to establish that he had been the victim of an orchestrated campaign against him professionally, by the Bar Association and those who have been members of the Bar Council. To the extent that the cross-examination addressed matters which we have concluded were not relevant to the matter we have to decide, we have largely not referred to it in our notation of the evidence, arising from this cross-examination.
In his evidence-in-chief, Mr Heger explained that he is legally blind and cannot read text. His computer reads the text to him. He apologised for the noise created when he was asked to refer to a document.
Mr Heger made some corrections to his affidavit. He said that in relation to paragraph 92 of his affidavit, where in the second sentence it refers to a "Caution", it should be a "Reprimand".
Mr Heger also corrected paragraph 99. The date stated as "August 2021" should read "August 2020".
The Senior Counsel for the Council then addressed a matter which was objected to in the affidavit of Mr Heger. Mr Heger informed us he is the Executive Director of the NSW Bar Association. He commenced in that post on 7 June 2021. He is authorised to make affidavits on behalf of the Council of the NSW Bar Association. His authorisation arises from a resolution of the Council passed in August 2021. A copy of the resolution was attached to Mr Moore's affidavit.
We have particularly noted the following from the cross-examination of Mr Heger.
The Respondent asked if Mr Heger had discussed this proceeding with Mr Tolhurst. Mr Heger replied: "I have no recollection of discussing the proceeding with Mr Tolhurst."
The Respondent asked Mr Heger, "In relation to these proceedings which member of the staff of the solicitors have you been dealing with?" The question was objected to on the basis of relevance. The Respondent said it was relevant to the issue of costs, authority, source of instructions. When pressed further by us, the Respondent said: "Well, I've explained it's to do with costs. It's to do with the line of authority of decisions which have been taken in these proceedings." We then upheld the objection. The Respondent asked that we provide reasons before proceeding further with the hearing. We informed him we would provide those reasons in these reasons. The Respondent then said: "So you're refusing to allow me or the Tribunal to know the line of authority between the Bar Council and the ..." We informed him: "No, we are refusing the question you asked."
The reason we refused the question was because we could not see how it was relevant to the determination we needed to make in this hearing, nor could we see the relevance to any cost order we might make. We have informed the Respondent we would not consider the question of costs as sought by the Council until we had decided this Stage 2 hearing. The question of quantum of costs is a matter for assessment by another person in the event of a dispute in relation to same. We could see no other evidence which may be relevant arising from an answer being given to the question asked.
The Respondent asked Mr Heger the following question: "You're responsible, for instance, for the budget of the Bar Association?" That question was objected to on the basis of relevance. The Respondent pressed the question and made argument. The witness was asked to leave the court room so the Respondent could make a submission in support of the relevance of his question. As part of the submission, the Respondent said: "The live issue we have at the moment is the identity of the party to the proceedings." He submitted further: "The party to the proceedings, we still don't know who the party to the proceedings is and - sorry, we know - well, we actually don't know because the point is, and if I could explain that. These proceedings were started in December 2020 by the Bar Council of the NSW Bar Association. There have been several changes to the membership of the Bar Council since then and I'm entitled to ask some questions along those lines."
The question asked by the Respondent about the Bar Association budget was rejected on the ground of relevance and the Respondent was invited to continue with his cross-examination.
The Respondent asked Mr Heger about par 7 of his affidavit and his words, "The file goes back over 20 years and some of the correspondence has been lost or cannot be located as many of the Bar Association documents were stored physically and not electronically before 2020." Mr Heger said he did not search the file himself to find that information. He said the reference to a file was a reference to the professional conduct file. He said it referred to the Respondent's professional conduct history.
The Respondent addressed questions to Mr Heger about the personnel makeup of the Bar Council since Mr Heger was authorised to swear or affirm affidavits on behalf of the Council in August 2021. Mr Heger agreed there have been changes in the individual members forming part of the Bar Council.
After a further period of cross-examination of Mr Heger, he was again required to leave the court room. The Respondent then addressed in relation to a line of cross-examination he wished to pursue with the witness. He said it related to the Council of the NSW Bar Association, being a "group of shifting people that come and go". This raised the issue of the outstanding determination of whether the Bar Council had an independent legal personality. Ms Morgan SC for the Council objected to the continued line of cross-examination with this witness, she having conceded, shortly before this argument took place, that "the Bar Council did have multiple people being on the Bar Council at various points in time, temporally." Ms Morgan SC further submitted that the issue has been addressed in written submissions. She said there is no issue that the Bar Council changes in its composition and the Bar Council, in its written submissions, relies primarily on the regulatory regime and its role in the regulatory regime to be the appropriate applicant. She submitted: "This witness cannot add to the factual matrix that will assist the Tribunal." The Respondent did not press the question further.
The Respondent cross-examined, or attempted to do so, about the content of par 15 of Mr Heger's affidavit. This, Mr Heger agreed, related to a complaint in which the Bar Council sought leave to proceed against the Respondent, out of time, before the Administrative Decisions Tribunal (the ADT) and which Senior Counsel for the Council informed the Tribunal was reported as Council of the New South Wales Bar Association v de Robillard [2004] NSWADT 45. The Respondent pressed the witness (and the Tribunal) with the assertion that what was dismissed was the application filed or sought to be filed by the Bar Council. He said that Mr Selth had lodged an application in the Tribunal and had obtained leave "behind his back" to proceed with an application which he knew was out of time.
Once again, this line of cross-examination, or attempted cross-examination seemed to us to address the issue of the relationship between the Respondent and members, office bearers or employees, of the NSW Bar Association and/or the Bar Council of the NSW Bar Association, over a lengthy period of time, where the Respondent alleged he had been treated very unfairly.
The Respondent submitted the judgment of the ADT established that the Tribunal was critical of the Bar Association for having so mismanaged the proceeding.
The hearing was adjourned from 23 August 2022 until 24 October 2022. Mr Heger was still in cross-examination when the hearing resumed.
The cross-examination of Mr Hager proceeded for a considerable time with the Respondent asking questions of Mr Heger about the source of the documents which he had included in exhibit AH1 (as described in his affidavit). The questions were asked in a circumstance where Mr Heger is "legally blind" and requires his computer to assist him in reading a document. We saw examples of how that works whilst Mr Heger was giving his evidence. He was able to have the text in a document converted to speech, which he can understand.
Some questions were framed, dealing with the question of how the documents in exhibit AH1 to Mr Heger's affidavit were sourced within the records of the Bar Association. We set out part of that cross-examination which we consider, captures that evidence, which may be relevant to the decision we are to make. It is as follows: "Q. On your evidence you have not personally made, looked at or considered any other files of the NSW Bar Association to ensure yourself that these were the disciplinary records of the NSW Bar Association about myself? A. Yes. Q. Would you, would you concede that the - such documents as have been annexed to this affidavit, are - have been selected for the purpose of providing a stilted view of the disciplinary proceedings against me? A. No. Q. Well, is there - when you say "no", are you saying that this is a fair representation of all the documents that are held by the NSW Bar Association in relation to disciplinary proceedings against me? A. To the best of my knowledge, yes they are. A. I have told you I have not personally reviewed the file, every piece of correspondence or matter that sits in the disciplinary record, your disciplinary record in the Bar Association."
Over a period of about 10 minutes, we asked the Respondent whether he had a document with him in court which he proposed to show the witness and put to him that in fairness to the Respondent, such document should have been included in the annexure to his affidavit. Although we asked that question a number of times, the Respondent failed to provide us with an unequivocal answer. At one point he said he did have a document but he was not proposing to put it to the witness at that time. He then said he wanted to ask the witness about documents "which eventually will be produced." He then said: "Well, if I could then say on the record that I do have such documents which I intend to put to the witness or to a witness for the Bar Council once someone is produced" (24 October 2022 transcript, pp 40, 41).
The Respondent sought to cross-examine Mr Heger about the role of the CEO of the Bar Association in 2002 and his involvement in the conduct of disciplinary proceedings. That question was objected to by the Council. The Respondent pressed the question by informing the Tribunal that (24 October 2022 transcript, p 61): "Well again, your Honour, my contention is that the tribunal needs to be satisfied that there have not been an authorised and unfair interventions between the Bar Council and other people who had an interest in dealing with me unfairly for their own personal agenda such as Mr Selth and that is why this - this is something your Honour - the tribunal has to keep in mind when looking at my disciplinary record."
The Respondent agreed that there were copies of his own correspondence with the Bar Association included in the document which Mr Heger had attached to his affidavit and that correspondence addressed some issues which the Respondent said amounted to an unfair dealing with him by the Bar Association.
Further in the cross-examination of Mr Heger, the Respondent again made a submission directed at his having suffered at the hands of Mr Selth in his dealings with the Bar Association. The Respondent said: "… but the other point so that it's clear again, is the point I'm making is the way in which this proceedings have been prepared by the Bar Council which is, in my respectful submission, rather misleading because these documents are documents prepared by employees of the Bar Association who were all working directly under Mr Selth and who apparently had no contact with members of the Bar Council so far as I can establish so far."
The Respondent asked Mr Heger to look at p 59 of exhibit A5 (the annexure marked 'AH1' to the affidavit of Mr Heger). That document is dated 10 March 2003 and is a memo or letter from the Respondent addressed to Bret Walker SC. In that document, he included the following: "I shall not burden you with the numerous issues which have arisen from my inspection of the (albeit sanitised) Bar Association file as produced to date. Once again I implore yourself and members of the Bar Council to take a careful look at my complaints about Mr Selth and Mesdames Gibson and Barrett. At least so far as my particular case is concerned they are definitely not fit and proper persons to administer in a transparent way the Statutory Scheme - a most serious task indeed."
Further in that memo or letter, the Respondent stated (Exhibit A5, p 61): "The internal email of 13 February 2003 from Ms Barrett to Terrie Gibson and others at 4.02 pm clearly shows that both Ms Gibson and Ms Barrett knew PRIOR to the Bar Council meeting that I had NOT received the Notice that I could make submissions through Counsel and in writing. They were concerned that I may comply with the next reporting deadline on 16 February 2003 should my Certificate not be suspended on 13 February … I have now done everything humanly possible (given my limited financial resources AND the continuous need to cope with the vicious campaign from some employees of the Bar Association and the Association's incompetent solicitor) to comply with the Tax Laws."
We have included the above extract because it demonstrates that the Respondent has held the view that Mr Selth has influenced the dealings of the Bar Association, with the Respondent, so as to cause the Bar Council to take an adverse view of the Respondent. It appeared from the cross-examination which the Respondent conducted of Mr Heger that the Respondent was seeking to have us go behind the findings and determination of the Bar Council which were the subject of the evidence contained in the affidavit of Mr Heger.
The Respondent put to Mr Heger that he was provided with a bundle of documents and he was not particularly concerned to establish for himself the fairness or otherwise of the representations in those documents. Mr Heger denied that was the case.
It appeared to us that the Respondent sought, in the conduct of this cross-examination, to go behind the determinations of the Bar Council which imposed disciplinary sanctions on the Respondent, for the purpose, we have assumed, of having us determine whether the action was, in our view, properly and fairly reached. Apart from the Respondent having commenced an action in the Supreme Court (and then withdrawn it), there was no evidence that the Respondent had taken any action, within the time when he could have done so, to review a decision of the Bar Council decided against his interests. When challenged about his request that the minutes of the meeting of the Bar Council (which gave rise to the resolution of 14 February 2003 referred to in the evidence of Mr Heger) be produced, the Respondent submitted: "My evidence will be that in fact on that day, the Bar Council was misled, knowingly misled, by employees of the Bar Association because they had sent me a registered mail letter on 31 December 2002 and they had relied upon my non-response to that letter to put to the Bar Council that I had not responded to a request under section 152." The Respondent stated that the staff of the Bar Association knew the letter sent to him had been returned unopened and that fact had not been made known to the Bar Council.
When challenged about whether the Respondent had sought to take the determination of the Bar Council further and have that reviewed, he informed the Tribunal that he had commenced a proceeding in the Supreme Court, however, on advice he did not pursue it.
We note that under the provisions of the Legal Profession Act 1987 (NSW) (the relevant statutory provision in 2003), the Respondent could appeal a determination of the Bar Council relating to his practicing certificate as follows: 38B Appeals relating to practising certificates (1) If a Council: (a) refuses to issue a practising certificate, or (b) refuses to issue a practising certificate of the kind applied for, or (c) attaches a condition to a practising certificate or varies a condition attached to a practising certificate, or (d) cancels or suspends a practising certificate, the applicant for, or holder of, the practising certificate may appeal to the Supreme Court.
That Act also contained provisions to allow for a legal practitioner to review the decision of a Council which imposed a reprimand upon the practitioner.
There was no evidence placed before us by the Respondent or the Council which demonstrated the Respondent had taken action to complete a process or proceeding, instituted by him, to review any decision of the Bar Council which is set out in the evidence of Mr Heger.
At the conclusion of the hearing day on 24 October 2022, the Respondent sought that Mr Heger (still in cross-examination) produce to the Tribunal the next morning the minutes of the Council meetings since July 2019 and up to the date of the decision of the Council to refer the matter, now under consideration, to this Tribunal. That was opposed by the Council. We made no ruling requiring the production.
Given that the Respondent had cross-examined Mr Heger for the whole of the day of 24 October 2022, for at least half a day on 23 August 2022 (his evidence commenced well before the lunch adjournment on that day), we informed the Respondent we considered it reasonable to allow him a further one hour to cross-examine Mr Heger on the following day, 25 October 2022. The Tribunal had set aside three days to complete the hearing of Stage 2 and there was still one witness for the Council to be cross-examined and an expected application from the Respondent for leave to give his own evidence in the hearing. There also needed to be time available to accommodate the parties' submissions.
The hearing resumed at 9am on 25 October 2022. Mr Heger was called for further cross-examination. During the time which we allowed the Respondent to complete his cross-examination the Respondent stated: "RESPONDENT: … Ms Morgan, on more than one occasion, as the transcript will show, was suggesting to Mr Heger a potential answer to a fairly major problem the, the council now faces in relation to Mr Heger's evidence. HIS HONOUR: Well, that is a very serious allegation to make against counsel. RESPONDENT: Yes. Well, we'll see, we'll see what's on - we'll see what's on the record. I'm talking from memory, but we will read the transcript. SENIOR MEMBER DIXON: There's no basis at all for that suggestion, Mr de Robillard. RESPONDENT: All right, well, if there's no basis in the tribunal's mind, then I withdraw that, that, that statement. But I was-- HIS HONOUR: Well, you've made it; you've put it on the record. RESPONDENT: Well, no, no. I'm just-- HIS HONOUR: It's a terrible thing to make an allegation like that against any lawyer, let alone a barrister holding a commission of senior counsel. RESPONDENT: Well, it is a serious allegation and I, I, I-- HIS HONOUR: Right, well, let's move on. RESPONDENT: Well-- HIS HONOUR: Because you've got limited time. What do you want to say? RESPONDENT: No, no, well, let's not worry about my limited time. The point is what Mr Dixon and, and the presiding member is doing now is trying to say that during the hearing of these proceedings, I had already demonstrated the same problems which - for which I am now before the tribunal, which is making statements without justification. So I'm just being set up at the moment, with respect. HIS HONOUR: Well, you only get set up if you make statements of that nature. Whether they are or are not will be for somebody else to determine, not us."
The hearing continued and sometime later the Respondent repeated his complaint about Ms Morgan SC as follows: "RESPONDENT: … But, of course, Ms Morgan today was trying to suggest - when I was trying to make that point clear, she was trying to interrupt me to say 'No, Mr, Mr Heger will be able to, to explain it', and that, in my respectful submission, is improper for her to have done that in front of Mr Heger. HIS HONOUR: Well, right, we don't accept that, Mr de Robillard. Carry on."
The time we allocated to the Respondent to complete his cross-examination of Mr Heger expired at 10am on 25 October 2022. The Respondent sought an extension of time. We asked that he address us setting out why he should be allowed further time. The Respondent then provided the following submission: "Well, I just want to make it clear because, as far as I understand the proceedings as to stage 2 - and, and clearly, Mr Heger has stated in his affidavit at paragraphs 4 and 5, and 6 maybe, that the purpose of his affidavit is for the purpose of stage 2 of the proceedings. On two occasions, he uses the term "purpose". The Bar Council purpose in stage 2 should be to put to the tribunal those matters which would urge the, the tribunal to have me removed from the role of lawyers. Because, in the tribunal's opinion, I am some sort - the public needs to be protected from me, to use the term. It's a protective division; it's not a punishment division; that's extremely clear from the court cases. Now, for the tribunal and, and, in particular, the General Member representing the public to be satisfied that the public needs protection from me, the tribunal, in my respectful submission, needs to know the following matters: One, what member of the public has been affected - adversely affected by any of the matters of which I have been - of which disciplinary proceedings have been taken against me; that's one. Number 2, the Bar Council should also be providing evidence to the tribunal which may, which may also assist the tribunal in considering and weighing into balance whether or not, notwithstanding the disciplinary proceedings, I should still be allowed to practice as a barrister. Because, on the balance, I have done more to assist the public than to, in any way, hurt any member of the public. And what these proceedings are raising is the very important matter of public concern, which is the role of the members of the Bar Council as regulators under the Act. And, and my submissions at the end of these proceedings will be that the members of the Bar Council, who have been involved in the discriminatory proceedings against me - and the history's set out in Mr Heger's affidavit - those members of the Bar Council have been acting contrary to law, and not fulfilling their duties as regulators for the purpose of exercising the protective jurisdiction and function, which they are required to do by the statute, as well as the common law and other legal principles, including their positions as officers of the Court. And, in my respectful submission, at the end of the day, but I mean that's where my cross-examination is going to, if that could assist Ms Morgan. At the end of the day, my submission will be that this affidavit of Mr Heger is grossly lacking in relevant evidence in that Mr Heger has somehow managed to find, among the records of the Bar Association, only those matters that he wanted to put to the tribunal, to provide to the tribunal a false impression or - and unfair impression of my contribution to, and my service to members of the public and to the rule of law since I became admitted as a solicitor on 11 of February 1977, and as a barrister since 1988. And, in due course, I will be taking the tribunal to evidence where, when I have been asked why I should be allowed to practice as a barrister, when I've made a statement to say that at all times, I've lived by the motto of the Bar Association, which is "Servant of all and of none", which means I have taken the risk of upsetting people by - "
There was further submission of the Respondent which he addressed to the General Member of the Tribunal. He said: "Well, I need to explain to member of the general public - the General Member, I beg your pardon, General Member, that that is relevant because my case is that I have been unfairly treated, and Mr Heger's affidavit and all other documents that have been put before the tribunal so far are unfair and do not provide a balanced view. Because since, since Mr Selth came into power, as I call it, of the Bar Association, he has been attacking me and, and other members, other presidents of the Bar Association from time to time - not all the time, but some of them, the more ambitious ones - have attacked me simply because I have spoken up about various issues of public interest which - "
In the further cross-examination of Mr Heger, the Respondent sought to ascertain whether there was a record kept of the member attendance at each Professional Conduct Committee which dealt with a complaint, which was then the subject of a report to the Bar Council.
The Respondent embarked upon a line of cross-examination of Mr Heger about the CEO's obligation to ensure the Bar Association filed a return with ASIC under the Corporations Act 2001 (Cth). In that cross-examination, the Respondent showed to Mr Heger a copy of a letter the Respondent said he had sent to the Governor of NSW on 7 February 2007 with the heading "Need to review appointment of Ian Harrison SC as a justice of the Supreme Court of NSW".
When Mr Heger said that he had read an allegation by the Respondent in the documents annexed to his affidavit (exhibit A5), the Respondent asked if Mr Heger had then carried out a search or made enquiries of his own about that possibility. Mr Heger said he had not.
The Respondent then had marked for identification as MFI 5 a copy of the Minutes of the Bar Council dated 24 April 2002 and as MFI 6 a copy of a letter the Respondent said he had sent to the Governor of NSW in relation to the appointment of Justice Harrison SC to the NSW Supreme Court.
The Respondent's cross-examination then concluded with us refusing to allow the Respondent another extension of time to cross-examination Mr Heger
The annexure to Mr Heger's affidavit, (previously marked as MFI 4) was then admitted to evidence against the objection of the Respondent. We note the transcript erroneously states that the exhibit was admitted "without objection". The exhibit was marked as A5. The documents in A5 were accepted by us as business records.

[43]

The Oral evidence of Mr Moore

Mr Moore was required for cross-examination. His affidavits had been admitted to evidence and marked as exhibit A6 and A7. Subject to a correction which he sought to make in exhibit A6, he confirmed the content of the affidavit was true and correct.
Mr Moore was cross-examined by the Respondent. We noted the following evidence he gave which we considered relevant and helpful to us in this determination.
This cross-examination occurred on the fourth day of the hearing. Many of the questions asked by the Respondent of this witness were objected to. It appeared to us that the Respondent may have become frustrated by his inability to pursue the subject matter he chose to pursue. There were occasions when we had to raise with the Respondent the appropriateness of a question asked, or comment or submission made. Contrary to our rulings about the relevance of the issue of costs, the Respondent returned to the subject on a number of occasions. We nonetheless permitted to allow the Respondent to continue with the cross-examination where there was a relevant question asked or at least some possibility of relevance in a line of cross-examination.
An example of the Respondent's frustration occurred towards the end of day 4. The Respondent asked that Mr Moore, the witness then being cross-examined by the Respondent, be shown copies of the documents which he had marked as exhibits D3 and D2. The Principal Member asked the Respondent what the purpose of showing those documents to the witness was and how, if it was permitted, would it assist us in determining Stage 2. The following exchange then took place (25 October 2022 transcript, p 113): "RESPONDENT: I don't think anything will assist the tribunal, with respect, because the tribunal does not really need to be assisted because you've already made up your mind. But I will keep on trying. HIS HONOUR: Well, that's an offensive thing to say. RESPONDENT: It may be, but that's how I feel. HIS HONOUR: Well, that's offensive. RESPONDENT: Well, if it's offensive, then I apologise and withdraw it. But it's very clear what the tribunal has decided. HIS HONOUR: Well, it's not very clear what the tribunal has decided. RESPONDENT: It seems to be. HIS HONOUR: Well, you seem to have insight that we don't. So, anyway, what did you want to ask about these articles?"
The cross-examination of Mr Moore continued into the final day of the hearing. The Respondent's frustration with the conduct of the hearing continued into the final day of hearing. An example of that frustration is found in the following portion of the transcript. "RESPONDENT Q. Thank you, Mr Moore. So basically, what follows from that is would you be able to identify from your system the various times when various iterations of this document were sent - were received by you and sent back to Mr Heger? A. Yes, I believe that would be possible, through the emails by which they were received. Q. Assuming they haven't been erased? SENIOR MEMBER DIXON: I beg your pardon? RESPONDENT: I said, assuming none of the emails have been erased. SENIOR MEMBER DIXON: Are you suggesting that this legal firm would have erased emails? Is that your proposition? RESPONDENT: I'm not making that proposition at all. SENIOR MEMBER DIXON: Just so I understand. RESPONDENT: Why are you - why is Mr Dixon interfering with‑‑ SENIOR MEMBER DIXON: Mr Robillard, you can answer my question. RESPONDENT: Why is Mr Dixon attacking me by saying - trying to put words in my mouth? SENIOR MEMBER DIXON: I'm asking you whether you are, in fact, suggesting, and correct me if I'm wrong, by that question that this firm may have erased emails? Are you making that suggestion or not? RESPONDENT: No. I'm simply saying the system is such that it can happen. SENIOR MEMBER DIXON: Thank you. RESPONDENT: Sorry? SENIOR MEMBER DIXON: I said, thank you. RESPONDENT: Yes, well, you were smiling as if I've been caught out. I mean, with respect‑‑ HIS HONOUR: Come on, get on with it. It's your time. If you want to take up the time arguing with Mr Dixon, please proceed to do so. RESPONDENT: If I could then ask Mr Dixon not to interfere with my cross‑examination. HIS HONOUR: No, you can't ask that. RESPONDENT: With respect, my time should not be taken up by Mr Dixon asking me such questions. HIS HONOUR: You're taking it up; not him. RESPONDENT: Pardon? HIS HONOUR: You're taking up the time; not him."
The Respondent sought additional time to cross-examine Mr Moore beyond the hour we had allowed him on 26 October 2022. Having heard further submission, we permitted the Respondent a further 15 minutes of cross-examination. There was nothing in the evidence given in that time which we considered helpful to us in this Stage 2 determination.
The Respondent had informed us on a number of occasions during the cross-examination of the Council witnesses that he wished to make an application to cross-examine Mr Tolhurst, a witness for the Council whose evidence was received in the Stage 1 hearing and who was not required in that hearing for cross-examination. As can be seen from our earlier reference to this matter, the Respondent ultimately did not press such application.

[44]

The evidence of the Respondent

The Respondent filed no evidence in the form of an affidavit. He did tender documents, which we have referred to in these reasons.
The Respondent, on the last day of the hearing (26 October 2022), made an application to be granted leave to give oral evidence. Such application was opposed, and the directions made by Judge Cole for the preparation of the case for hearing were relied upon in the Council's opposition to the Respondent's application.
In support of his application, the Respondent stated that until the start of these proceedings (we assume Stage 2) it had been unclear to him exactly what stage the proceedings had reached. He said he had not wanted to put any reply to the case of the Council until he knew what the case was he had to meet. He was unclear as to precisely what the parameters were of the evidence he could give in the proceeding. He said: "The whole of my case, be it in relation to stage 1 or stage 2, is that since Mr Selth became the chief executive officer there has been an abuse of process towards me on each and every one of the disciplinary matters." Further he said: "And the contention I'm going to make at the end of the day is that, in fact, these proceedings and what's happened in these proceedings will demonstrate and illustrate precisely what I have been contending has been happening within the - some of the faceless members of the Bar Council since this campaign started against me."
We pause here to say there was no reason for the Respondent to have been confused as to the stage the proceedings had reached when the hearing commenced before us on 22 August 2022. The Stage 1 hearing was conducted by the parties, the Respondent then represented by Senior Counsel, clearly dealing with the issue of whether the Respondent was guilty of unsatisfactory professional conduct and professional misconduct. The parties clearly sought to reserve to stage 2 any reference to protective orders which might need to be considered by the Tribunal in the event of the Bar Council establishing its' case in part or as it sought. There were portions of the affidavit of Mr Tolhurst which were objected to and not read by the Bar Council because those portions were relevant to Stage 2. The Bar Council relied only on pars 1, 2, 5-25, 30-37 of the affidavit of Mr Tolhurst clearly in response to the Respondent's objection.
Although the Respondent represented himself in this Stage 2 hearing, it is to be remembered he is not an unqualified lay member of the community. He is a trained lawyer who practised for many years as a barrister. We reject any suggestion from the Respondent that he was confused as to the stage the proceedings had reached when the hearing commenced on 22 August 2022 or at any time thereafter. We conclude it was a conscious decision of the Respondent not to file any evidence in support of his case. We reach that conclusion relying upon the matters we have set out above and also accepting that the Respondent, with his professional background, would clearly have understood the consequences of failing to comply with the directions made for him to file any evidence he sought to rely upon for the Stage 2 hearing. We also rely upon the statement made by the Respondent himself in submission in this hearing about his plan to "Let the mice come out."
The following is an extract from the Respondent's submissions to us in relation to his application to be permitted to give and/or call evidence in this Stage 2 hearing. "HIS HONOUR: No, the question I asked you was why couldn't you have put it in an affidavit of your own? RESPONDENT: The best way I can illustrate is to claim - is to repeat what President Mitterrand said to Paul Keating and to the US president at the time when they were at the Élysée Palace and this is Paul Keating who told me the story. Is he said, "Well, why is it that you're letting all these people do all these things to you?" And Mitterrand said, "I'm like an old cat. I close my - I look - I pretend I'm closing my eyes, I let all the mice come out, and then I hit". That's what I've done in these proceedings. I've closed my eyes, I've allowed all the mice to go around and now I'm hitting. That's what it is."
The Respondent then informed us that: "Okay, in my evidence, I will be going through each and every president of the Bar Council since Ian Barker up to President Ruth McColl, and this will illustrate the abusive conduct towards me during that time." The Respondent also added: "What I want to add to this is I had thought that once Mr Heger came and gave evidence, he would concede and accept the extent of my complaints against the Bar association during this whole time." The Respondent submitted that he had anticipated the Council, through Mr Heger, would have put other documents into evidence which would show positive aspects of the Respondent's conduct and also illustrate what he stated was adverse conduct directed towards him by the former CEO's of the Bar Association.
In response to the Respondent's application, the Council submitted the following: "We oppose this course and put simply, the respondent has just said the reason he has defied the orders of the tribunal was so that he could wait and let all the mice, as he described it, come out. We have relied on evidence that was before - that he had since January. He's had submissions of ours since May. He was well aware of what the case was against him and he elected, having been ordered by the tribunal in April, to put his evidence on. He's now detailed, as I understand it, what will be a very particular and extensive attack on the Bar Council's former presidents without any warning and any notice to [the] Bar Council. So, we oppose as strenuously as I can oppose the application."
On 26 October 2020 we refused the Respondent's application and published reasons which were as follows: "In relation to the application of the respondent to be able to call oral evidence now in his case, we note that on 10 December 2021 a direction was made that the respondent file and serve by 28 February 2022 his evidence in relation to stage 2 proceedings. We note on 6 April 22 the respondent was again directed, to file and serve evidence by 6 May 2022 and was not permitted to file further evidence after 6 May 22 without the leave of the Tribunal first had and obtained. We note that on 23 August 2022 when the matter was before us for stage 2 hearing, the tribunal noted the order made on 6 April 2022 by Judge Cole as follows: 'The respondent may file and serve any evidence on which he intends to rely on or before 6 May 2022 and will not be permitted to file further evidence after 6 May 2022 without the leave of the tribunal.' The tribunal noted it is asserted by the applicant that the respondent has not filed and/or served any evidence or other document he is seeking to rely upon since 6 April 2022 other than the document provided on 23 August 2022 and marked as MFI 3 in the current hearing. The respondent's application for leave to be able to give oral evidence is opposed by the applicant. We refuse the application of the respondent to call oral evidence at this time and we will publish our reasons for that refusal as part of our final judgment."
We have considered the above extracted decision given on 26 October 2022 and we would only add the following: 1. The Respondent had provided no note to the Council of the evidence he proposed to provide, he filed no affidavit, nor did he have an affidavit to provide to the Tribunal and seek leave to rely upon. 2. The application was made on the last day allocated for the hearing of the Stage 2 portion of the proceeding. The Respondent had the opportunity to apply to the Tribunal to file his evidence in the lengthy break between the first two hearing days conducted on 22 and 23 August 2022 and the continuation on 24 October 2022, and had failed to do so. Had he taken that opportunity then the Council would have had an opportunity to consider the evidence and prepare for a cross-examination of the Respondent on his evidence.
Given the line of cross-examination undertaken by the Respondent of the Council's witnesses, we had no confidence the Respondent would address matters in his evidence which would assist us in the determination of the action. The Respondent sought to tender documents which had been marked for identification during the cross-examination of the Council's witnesses. We allowed the tender of those documents which were marked as follows: 1. Letter addressed to the Governor of NSW dated 7 February 2007 (subject to relevance and authenticity) marked as exhibit D4. 2. Possible copy of ASIC search dated 29 August 2022 marked as exhibit D5 (subject to relevance and acceptance of it being a document obtained from ASIC records). 3. Bar Council Minutes of 24 April 2002 (previously marked as MFI 5) now marked as exhibit D6 (subject to relevance). 4. Copy of article published in the Sydney Morning Herald on 25 September 2004 (previously MFI 7) now marked as exhibit D7 (admitted subject to relevance). 5. A 63 page document on the letterhead of Selby Kent Levitt dated 6 April 2002 (previously marked as MFI 8) now marked as exhibit D8 (subject to relevance). 6. Letter dated 19 December 2014 to the Respondent from Law and Justice Foundation (previously marked as MFI 9) now exhibit D9, (subject to relevance).
We have considered each of the documents above described and noted the contents of same as follows.

[51]

The Council's Submission

The Council relied upon its' written submission dated 30 May 2022 and which was marked as MFI 10. In relation to that document, we have noted, in particular, the following: 1. The Council seeks orders which recommend that the name of the Respondent be removed from the Roll kept by the Supreme Court of NSW and the Australian Legal Professional Register. It also seeks an order that the Respondent pay the costs of the Council. 2. The Council relied upon s 302(1)(f) of the LPUL to establish the power of the Tribunal to make the order the Council seeks. That section is as follows: 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. 1. The Council sought a costs order pursuant to section 303 of the LPUL. 2. The Council relies upon the reasons published in relation to Stage 1 together with the evidence it led in this hearing. 3. In relation to the nature of the order sought, the Council addressed the order it seeks which it acknowledged the Tribunal had a discretion to make or not make. It relied upon decisions made in Council of the Law Society of NSW v Yoon [2019] NSWCATOD 28 at [47], and A Solicitor v The Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1. It submitted those decisions set out the guiding principle in relation to the removal from the Roll of a practitioner as being "whether the practitioner has been shown not to be a fit and proper person to be an officer of the Supreme Court." 4. The Council submitted the orders are protective (not punitive) although the order may involve deprivation to the person disciplined. The order will also have a deterrent effect to the general legal fraternity. 5. The effect of removal from the Roll is that the Practitioner is disentitled to hold a practising certificate (LPUL, ss 6, 16, 45). A practitioner so affected by removal from the Roll will need to apply to the Supreme Court under s 19 of the LPUL and rule 12 of the Legal Profession Uniform Admission Rules 2015 (NSW) (Admission Rules) and meet the requirements of rule 14 of the Admission Rules. 6. The Council submits that the power to make the Protective order it seeks is found in section 302(1)(f) of the LPUL. It is enlivened by a finding of professional misconduct. The Respondent's disciplinary history and conduct in relation to the current proceeding, the Council submits, warrants the outcome it seeks. The Council submits the Tribunal would find the Respondent has demonstrated a lack of co-operation, lack of insight and a lack of remorse.
In its submission, the Council addressed the factors which it said supported the removal of the Respondent's name from the Roll. It addressed the nature of the conduct of the Respondent and addressed the findings of the Tribunal in relation to the Grounds 1 and 2 which the Council had sought in its' Application heard at Stage 1. The Council highlighted the following matters addressed in the Stage 1 decision of the Tribunal on Ground 1. 1. The serious allegations made by the Respondent against Mr Wells, the solicitor acting for another party in a Supreme Court proceeding. He thereby overstepped his function as a lawyer and officer of the Court: at [232]. 2. The Respondent was aware of the seriousness of the allegations he was making against Mr Wells: at [167], [182]. 3. The claims made by the Respondent were that Mr Wells was engaging in the most serious form of misconduct: at [218], [219], [231]. 4. There was no evidence to support those allegations (the Council set out numerous paragraphs of the Stage 1 decision). 5. The Respondent knew that the consequence of his accusation was that Mr Wells would have to cease acting for his client and thereby cause significant prejudice to Mr Wells' client: at [221].
The Council then referred the Tribunal to the decision in Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 ("Clyne"). The Council submits the case supports the outcome it seeks in this matter. The Council submitted the High Court had stated that "the privilege enjoyed by counsel must not be abused." The Council submits that the Respondent's conduct in this case "is the same in kind as that in Clyne." The Council submits that the action of the Respondent was not an isolated event. It submits that the conduct spanned the preparation of multiple court documents.
The Council submitted the Respondent's abuse of his immunity to make unfounded accusations had the very real probability of diminishing public confidence in the legal profession. Further, the Council submits the findings of the Tribunal made in Stage 1 go directly to the Respondent's fitness to practise as a barrister.
The Council addressed Ground 2 of its' Application heard at Stage 1. The Council submitted that in relation to the Respondent being a fit and proper person to remain of the Roll: 1. The Respondent had refused to pay a personal costs order, without informing Mr Wells of any circumstances that rendered him unable to pay the costs and thereby put Mr Wells to the further cost of attempting to enforce payment: Stage 1 decision at [273]. 2. The Respondent had sought to challenge the order to pay costs: at [274]. 3. For the first time, and during the Stage 1 hearing, the Respondent sought to challenge the validity of the costs incurred by Mr Wells: At [275], [276]. 4. The payment of the debt immediately prior to the Stage 1 hearing did not exculpate the Respondent: [278]. 5. The Respondent placed no evidence before the Tribunal demonstrating he had no capacity to pay: at [278].
The Council submitted: "The Respondent's conduct demonstrates not just a disregard for his Court-ordered obligations, but for his own word, given to the Court when consenting to the personal costs order before Black J. His attitude undermines the essential reliance that courts and fellow practitioners must place on a barrister appearing before the Court and as such is inconsistent with fitness to remain on the Roll."
The Council then addressed the Respondent's disciplinary history. It set out the detail which had been provided by Mr Heger from the records of the Council. The record commenced with a reprimand imposed in October 2017, a further reprimand in October 2018, a refusal to grant a practising certificate for the 2017/2018 year, a caution issued in August 2020, a reprimand in June 2019 and a further reprimand in August 2020. There were other formal disciplinary measures in January 2020, August 2002 and October 2002 which had been identified by the evidence of Mr Heger.
The Council submitted that the Respondent's conduct as found in this proceeding is to be viewed "against this background. Since 2017 the Respondent has repeatedly engaged in conduct that flouted his professional obligations to clients, the Bar Association and the Court." The Council relied upon the decision in Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [44], and the authorities cited in that decision, to establish that a prolonged period of unprofessional conduct may, taken together, justify removal from the Roll. Further, the Council submits the Respondent's disciplinary history, indicates that misconduct is likely to recur. It referred to Legal Practitioners Conduct Board v Kerin [2006] SASC 393; (2006) 246 LSJS 371 ("Kerin") at [25].
The Council addressed the Respondent's lack of co-operation with designated authority. It submitted the Respondent had a long history of refusing to engage with the Bar Council's disciplinary procedures. It referred to the evidence in exhibit AH1. It submitted the Respondent had disregarded letters and statutory notices from a legal professional body. It relied on the decision in Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443; [2001] SASC 242 at [15].
The Council relied upon exhibit AH1 to illustrate examples of the Respondent exhibiting an acrimonious attitude to the Bar Association.
In the submission, the Council addressed what it submitted was a lack of insight, remorse or contrition in and from the Respondent in relation to the current proceeding. It submitted that a practitioner's failure to understand the impropriety of his conduct is relevant to whether the practitioner should be permitted to remain on the Roll: see New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; [1968] HCA 20.
The Council referred to the Respondent continuing to sign correspondence he sends to the Bar Association, as stating he is a barrister. It submitted: "The Respondent's designation on the Supreme Court Roll is as an Australian lawyer (ss 16 and 22 LPUL). Use of the term "barrister" to describe himself, in an email signature, is contrary to the undertaking given by the Respondent in 2020 not to represent that he is entitled to engage in legal practice as a barrister."
The Council concluded its' submission with the following: "The Respondent should be ordered to pay the Bar Council's costs". No further submission was addressed to that request.

[52]

The Council's Oral Submission

The Council provided supplementary submissions at the conclusion of the evidence in this hearing. We noted the following in that oral submission. We have not set out a submission which is a repeat of that which we have set out above.
We asked the Council if there was any legal consequence, in this hearing, arising from the Respondent not holding a current practising certificate. We were referred to the written submission provided by the Council in the Stage 1 hearing where that matter was addressed. In that written submission, the Council set out the following: "The respondent has not held a practising certificate since his practising certificate for the period 1 July 2016 to 30 June 2017 was cancelled by the Bar Council, and his application for renewal of the practising certificate for the period 1 July 2017 to 30 June 2018 was not granted. Section 262(4)(a) of the LPUL extends the application of Chapter 5 to former Australian legal practitioners."
The Council submitted that the Tribunal may make any of the orders set out in ss 302 and 303 of the LPUL. There is a discretion to be exercised.
The Tribunal members asked the Senior Counsel for the Council about the order for costs which was sought. Counsel agreed it could be the subject of further submission following the determination of the Tribunal in Stage 2. The requirement of s 303(1) envisages a cost order is to be made against the lawyer unless the Tribunal is satisfied exceptional circumstances exist. The Council submitted it would be for the Respondent to establish any such exceptional circumstance.
The Council was asked about the reference in par 31 of the Council's written submission for Stage 2, to the Respondent continuing to include the word "barrister" in correspondence with the Bar Association and/or the Council. Ms Morgan SC for the Council stated that the Council relies on that evidence just to illustrate the incapacity of the Respondent to accept the legitimacy of the process, including having given the undertaking not to use that descriptive yet not complying with his undertaking.

[53]

The Respondent's Oral Submissions

The Respondent was invited to make his submission. The Tribunal members endeavoured to hear his submission without interruption. The Respondent spent some time in his submission endeavouring to engage with the Tribunal members rather than make his submission in relation to Stage 2. Doing the best we can, we have identified the following portions of his submission which appear to us to address the Stage 2 considerations.
Given that the Respondent did not give oral evidence or file an affidavit in the Stage 2 hearing, we were limited by not being able to take into account matters which the Respondent framed as submission where the facts said to be addressed were not in evidence before us, in either the Stage 1 or Stage 2 hearing.
The Respondent said he had not practised as a barrister since 26 June 2018 when his practising certificate, he said, "was removed" from him.
As best we understood, the Respondent questioned the necessity to have his name removed from the Roll given that he has not practised since June 2018 and has not been given a practising certificate.
The Respondent informed us that he has been a bankrupt since 2018.
The Respondent addressed part of the content of exhibit D7. The particular portion was titled "Hammered into Shape". The Respondent asserted that the information in the newspaper article must have been provided by "someone within the Bar Association".
The Respondent spent a considerable amount of the time allocated to him to make his submission, informing the Tribunal of historical matters which he said pre-dated the proceeding, which gave rise to this complaint being made by the Bar Council. Given the fact that the Respondent had not given evidence in the Stage 2 proceeding, he did not appear to appreciate that he was only able to base his submission on evidence which had been given in the hearings (Stage 1 and 2).
The Respondent submitted that before the Tribunal can decide that he is a "danger to the public", it needs to determine "What is the major premise of being a barrister?" The Respondent submitted that premise is: "You can be a successful barrister, just stick to doing law". The Respondent submitted further that a major premise to being a barrister, for him, has been: "I was concerned to use my skills to ensure that there would be access to justice and following the fact that everyone is equal before the law."
The Respondent appeared to be addressing the issue of the independent legal personality of the Bar Council and its' ability to be a party to this proceeding, with the following submission: "Who, who can the Tribunal say has made the recommendation for this application before the Tribunal that I should be removed from the roll of barristers? Who are they? Where are the minutes of the meeting which any organisation should keep - any organisation should keep where one can say, "On this day these people met as the Bar Council at a certain time. They had documents in front of them. They considered the documents and they - that's what they decided"? Where are those minutes? All one has is some extraction of some document which says, "Resolved, and this is what's happened". And, and there is, in my respectful submission, no evidence before the Tribunal today except that - you might say that goes to, to - that goes to stage 1. But in relation to stage 2 who are the people and where is the documentation that the Tribunal can accept as a proper, reliable record of a normal business organisation which is a corporate structure registered under the Corporations Act which says: 'There was a directors meeting, there was some meeting there, all these people were there. The meeting started at this time, finished at this time. All these things were considered at the meeting. And, among other things, we decided to ask for the Tribunal to remove De Robillard because he's a danger to the public?' Where are those, those records?"
The Respondent addressed the current complaint in relation to Mr Wells, with the following: "And after that, once I started fighting and saying I need - I want to look at my file and, and, et cetera, then everyone resisted, as everyone is resisting now. And in the meantime people have just put all these - all these cases against me simply because I, I have said things which everyone says is, is upsetting, I agree. I'm not saying I'm not guilty of any of them but all I'm saying is one has to have the context of everything that is in there, which I've not been allowed to do because the Bar Council has simply not provided the documents which are within their records which would have justified all of these - all of the claims I have made. The point is this: that whether or not I'm a person who should be removed from the roll of barristers and whether or not I'm a danger to the public because I stand up to people who are considered to, to be abusing rule of law principles or not respecting them, that's a matter for the Tribunal to decide. But the Tribunal cannot, in my respectful submission, properly decide this without providing me with an opportunity to provide the documents. I have made many calls on the Bar Association to provide me access with my - to my files so that I can look at it. I had drafted here various summonses and I was just refused the opportunity to issue those summonses. So in my respectful submission, the Tribunal cannot be satisfied as to the protective - its protective jurisdiction without being told or being made aware of the full facts. And what I've - what I've just said is only just the tip of the iceberg, as I've said. There is something like a 20‑page document which I have provided to the Bar Council previously which describes in great detail what happened in Vanuatu. So, as I've said, I should be allowed an opportunity to put all these matters to the Tribunal so that the Tribunal can look at the context of what's happened and what I have been through since 1996, including a couple of home invasions where my furniture has been damaged. I mean, everyone - they've done a lot of things which are just there to scare someone. And not only that, but to make you go and scream blue murder and say, 'The, the government is doing this to me, and, and, and, and they're terrible'".
The Respondent submitted: "So that's - and in my respectful submission what is significant about these proceedings, what is significant is that they have used these proceedings to publicise the fact that my word cannot be trusted." When asked who he was referring to, the Respondent said: "the Bar Council. Well, I don't know who, who is behind it. We are told it's the Bar Council."
The Respondent then submitted: "The reason the Tribunal is being asked to remove me from the roll of barristers is not because I went and made some suggestive remark to someone at - you know, a drunken remark to a woman somewhere or whatever the, the, the problem is. It's not for dishonesty. It's for having made a statement in pleadings, they call it, in pleadings. They were - and, and without sufficient - without sufficient basis for what I said."
The reference to "a drunken remark", we have taken to be a reference to the case of EFA. That case was the subject of discussion during the course of the Council's submission. This submission seems to be suggesting that the Respondent's conduct, as found by us to amount to professional misconduct, should not be seen as being particularly high on the scale of serious misconduct.
The next submission of the Respondent identified a portion of the Stage 1 decision. The Respondent said: "The Tribunal has said, 'We are satisfied that there was no basis for him, for Mr De Robillard to say', whatever I'm supposed to have said. And if I could invite the Tribunal to, to at least look at precisely what it is that I've stated in the - in, in, in, in the document. What am I being - this, this is what I'm - this is what I'm saying. What is it that I said which is - which is said to have been done without, without proper basis?" That submission appears to show the Respondent has little insight to the conduct which has been found to be professional misconduct.
During the course of the Respondent's submission, we looked for any sign of contrition on his part for the conduct which we found amounted to professional misconduct. We have identified the following as potentially falling into that description. "Now, the, the - one, one problem is that for the Tribunal to - as I said, I've never said that it was not a mistake. I've never said that I would - I would do it again. In fact, unfortunately - not unfortunately, but the point is the, the undisputed evidence is that when the matter was brought to my attention, and, and I'm referring here to the hearing in front of Justice Black when Justice Black was - as I've said, it was in the context that he was extremely upset with me because I'd been late. And the reason I was late - anyway, that's all explained. But the point is this: that as soon as Justice Black said to me, 'You should not have done this', I recognised immediately and I said, 'I'm not going to press it'. And when Justice Black said to me that he intended to make a cost order against me, I did not resist it." And if one looks at the transcript, Justice Black himself seemed to have been rather surprised that I would have said, 'Yes, your Honour', and he suggested that I should take time, be represented, et cetera, et cetera. But what I did was I took - I took the responsibility because I - I've already given that evidence before that, you know, that's - this is what my belief is; if you're counsel you take the responsibility. I took the responsibility. I accepted that he would make an order against me. And as things turned out, I was not able to pay the, the amount which Mr Wells claimed against me. And initially at the last hearing, at the September hearing, Mr Dixon seemed to be at least sympathetic, saying - asking the counsel - the counsel, 'Well, the man was on the verge of being bankrupt already', but for some reason the Tribunal then, when they published their reasons, decided that that was also a terrible offence that I wasn't able to pay Mr Wells. Now, what, what I am saying is that it's not that - it's not that I have in any way said that it may not have been - that it wasn't an error of judgment to have done this, but when the Tribunal says - " (When asked if he was referring to the Wells matter, the Respondent confirmed that he was.)
In his submission, we consider the Respondent attempted to justify his conduct or perhaps ask for some compassion based upon the particular circumstance in which he found himself. He submitted: "And the Tribunal in their various consideration of the facts say, "Well, Mr Wells' letter was a little bit aggressive", but there's no mention there of letters sent to the father on his deathbed by hardcopy. And in, in a loose moment Senior Counsel for the - Senior Counsel for the Council stated, which was the fact, that this was in fact - if one looks at the pleadings of the 2015 proceedings, this was - and, and all of the correspondence, this was a dispute about a - a family dispute where one brother was trying to get more than his share or some share of the family wealth while, while the father is on his deathbed and after the father had just died. The father died and the, the, death certificate is September, September, I think, 2015, and in December or November they filed the, the application in the Corporations List seeking documents in relation to something like 20 or 12, 12 companies when there were a lot more. And when the Tribunal has, has, has exposed the facts in their - in their documentation here, it sounds as if it was Tony Ristovski who was a bit of a - I mean, there are - there are different ways of saying things. Obviously I'm not very skilled at saying things in a very delicate way. But you - the Tribunal has mentioned the fact that, that Tony Ristovski had been accused of misusing funds by, by, by investing in a company which was in control by the brother. The point is I had clear instructions at the time and I had clear knowledge at the time that something untoward was happening in relation to Mr - in relation to the bank accounts having been stopped. And, and what, what the - what the application was, was simply seeking an injunction for a solicitor and his client not to take any action which would be in breach of section 180 of the Corporations Act or 181."
Further the Respondent submitted: "I was not told that someone who had told me - had given me instructions or given instructions to the solicitor was not available because he'd gone to Malaysia and could not sign the affidavit. But that doesn't mean - that doesn't mean that I did not have the evidence or the knowledge or the belief. What the Bar Council has said is, 'Roger De Robillard has done something terrible. He's gone and put some documents in Court without proper belief or evidence'. But there is no evidence that the Bar Council went and obtained all the files of the 2015 proceedings which had all the evidence. And when I gave evidence before the Tribunal and I said, 'I can definitely remember there was an affidavit', nothing was forthcoming. And because we kept insisting, eventually when, when, Ms, Ms Morgan had, had tried to cross‑examine me and, and I'm not shaken in my cross‑examination as to my belief, then suddenly she accepted that there was an affidavit but then provided the 2016 - the affidavit filed in October 2016 when, when the major affidavit setting out the whole story was in an earlier 2015 affidavit sworn by Mr Ristovski. And that still is not there, nor are all of the documents. If the Bar Council were to investigate this matter properly, there's been no evidence of any attempt to speak to anyone involved in this matter, including the solicitor, even Mr Wells. Mr Wells gives evidence only of what happened in 2016, but he wasn't asked about what happened in 2015. He wasn't asked for all of his correspondence that could have been exculpatory, including the fact where he was asking for documents in his - in his filing in 2015. But the first time I got involved in this case was about February or March 2016, and already he was saying, 'We want so much money otherwise we're going to go on another fight'. Now, the, the issue is - what I'm respectfully saying is that the, the Tribunal may well decide to strike me off because I have not, as it's been put, complied with the Tribunal directions to put on my evidence. But the point is much of that evidence is not within my possession, and as I've said, if one goes to the Supreme Court, as I have done, and one says, 'I want to have copies of all these documents', it, it costs quite a lot of money. You need to do it through law and order or some other group. When the - when the Bar Council had - either has the documents and should put it to the Tribunal, or if they don't have it then they should not be saying there was absolutely no belief or evidence about what I said in court. I respectfully submit that if the Tribunal is to somehow use these proceedings to say Mr - as, as they, they often do, 'Mr De Robillard doesn't have any insight into what's going on or his problem and all that', then I would respectfully say that I should be - that should be put to me so that I can really answer the question of concern to the Tribunal as to what it is that the Tribunal believes means that I need to be removed from the roll of barristers. Again, in relation to that, the Tribunal is not even aware, and cannot be until I'm given time to, to put on evidence, as to what I have suffered since at least 2018 when my practicing certificate, as I said, was cancelled at sometime at - well, I was - I, I received an email at 9.40 at night saying, 'Your - just to let you know, your, your, your practicing certificate has been cancelled effective from 30 June.' The point is that if one looks at all of these facts one can see that the Bar Council in relation to some things, they go to extreme lengths to do their investigation behind the scene, but in relation to this particular matter they have not put before the Tribunal even the relevant file, which is the 2015 file. So it was a very complicated matter. And, and there was an urgency and it - and in my respectful submission, while I understand because I haven't put in all the evidence that, that is - that should be put before the Tribunal, the Tribunal might say, 'Well, as far as we're concerned there was no urgency and therefore you should not have made the statement'. Well, as I've said, I've already agreed that the statement should not have been made, and I've already taken the punishment for it, as far as I'm concerned."
The Respondent seemed to be asking the Tribunal to apply compassion to him in the determination of Stage 2. He submitted: "But, but beneath what's going on there's another story. And my reputation has been totally ruined by what's happened there. And between 2018 when I - they, they stopped me from practicing, I actually - as I've said - I don't know whether I've said it but I actually was working with - I've assisted quite a bit with Cote d'Ivoire, Ivory Coast, and with the government of Kenya and the government of Ivory Coast. And I was actually doing quite well there. And then suddenly anonymous letter went to these governments to say, 'Roger has been struck off as a barrister and don't trust him.' And, and so in 2020 then the, the issue comes along where I'm going to be struck off even though I've been working overseas mainly and not doing anything here."
We concluded the hearing by advising the parties that in relation to the costs application of the Council we will ask the parties to provide submissions on same once we have published our reasons in relation to Stage 2.
The Respondent asked that there be a period of time (at least seven days) between the parties being provided with a copy of the Stage 2 decision and the publication of the judgment on Austlii and elsewhere. He informed us that he wished to make an application to the NSW Court of Appeal seeking an injunction restraining the publication of the decision until the decision can be reviewed by that court.

[54]

Determination

The relevant statutory provisions which are to be addressed by this determination are set out in the decision of the NSW Court of Appeal in EFA at [17]-[25] as follows: "The relevant statutory provisions 17. The principal legislation relevant to the proceedings is the Uniform Law, Ch 5 (ss 260 - 322) which is concerned with "Dispute resolution and professional discipline". Section 260 states three objectives of Ch 5, as follows: '(a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.'" 18. Part 5.4 (ss 295 - 305) of Ch 5 is directed to "Disciplinary matters". For "disciplinary" purposes the Uniform Law draws a distinction between "unsatisfactory professional conduct" and "professional misconduct". By s 296, "unsatisfactory professional conduct" is defined to include: '… conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.' By s 297(1) "professional misconduct" is defined to include: '(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.' By subs (2) of s 297: 'For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.' 19. The definitions of both unsatisfactory professional conduct and professional misconduct are expanded in s 298 to include further specified categories of conduct. The chapeau to s 298 reads: 'Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct … .' Thereafter, in pars (a)-(j), ten categories of conduct are nominated. Relevantly, by par (b), conduct consisting of a contravention of "the Uniform Rules" is specified as conduct capable of constituting either unsatisfactory professional conduct or professional misconduct. 20. The relevant Uniform Rules are the Legal Profession Uniform Conduct (Barristers) Rules made under Pt 9.2 of Ch 9 of the Uniform Law. Relevantly, r 8 provides: 'A barrister must not engage in conduct which is: (a) dishonest or otherwise discreditable to a barrister, (b) prejudicial to the administration of justice, or (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.' 21. Part 5.2 (ss 265 - 284) of Ch 5 of the Uniform Law establishes a formalised process by which complaints about lawyers may be made, investigated, and dealt with. By s 266(1) any person or body may make a complaint that relates to any dispute or issue about any conduct to which Ch 5 applies; by s 266(2) the "designated local regulatory authority" may initiate a complaint containing a disciplinary matter only. By s 267(1) a complaint (which by subs (2), must be in writing, identify the complainant and the lawyer about whom the complaint is made, and describe the alleged conduct the subject of the complaint) is made to or by the designated local regulatory authority. 22. By s 11 (Table 1) of the Uniform Law Application Act the "designated local regulatory authority" is, for the purposes of Ch 5 of the Uniform Law, the Legal Services Commissioner ("the Commissioner") appointed under Pt 3, Div 2 of the Uniform Law Application Act. The Commissioner may, by s 282(1) of the Uniform Law, investigate the whole or part of a complaint, or may, by s 282(2), appoint a suitably qualified person to conduct an investigation. 23. The Commissioner has power, by s 299(1) of the Uniform Law, to find that a lawyer has engaged in unsatisfactory professional conduct, and to make any of a number of specified orders, which (relevantly) include caution (par (a)) and reprimand (par (b)) and the imposition of a fine not exceeding $25,000 (par (f)). The Commissioner may, by s 406(1) of the Uniform Law, delegate its Ch 5 functions to an entity which, by s 405(2), may be a professional association (which includes the NSW Bar Association). 24. By s 300 the Commissioner may initiate and prosecute proceedings against a lawyer in "the designated tribunal" if of the opinion that: '(a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the [Tribunal]; or (b) the alleged conduct may amount to professional misconduct.' 25. By s 11 (Table 2) of the Uniform Law Application Act, the Tribunal is "the designated tribunal". Section 302 of the Uniform Law empowers the Tribunal, if it has found a lawyer guilty of unsatisfactory professional conduct or professional misconduct, to make any orders that it thinks fit, (specifically including orders that may be made by the Commissioner under s 299(1)) and specifies a number of orders additional to those stated in s 299(1). The additional orders that the Tribunal may make include an order recommending that the name of the lawyer be removed from a roll kept by the Supreme Court (s 302(1)(f)) (s 22 of the Uniform Law requires the Supreme Court to maintain a roll of Australian lawyers admitted to practice). Where the Tribunal finds the lawyer guilty of professional misconduct the Tribunal may impose a fine not exceeding $100,000 (s 302(1)(l))."
Section 262(4)(a) provides that the LPUL applies to a lawyer who is a "former Australian legal practitioner". That has application to this determination as the Respondent does not hold a current practicing certificate which would entitle him to practise as a barrister. The section provides: 262 Application of this Chapter to conduct of lawyer or law practice (1) Subject to subsection (5), this Chapter applies to conduct of a lawyer occurring - (a) wholly within Australia; or (b) wholly outside Australia; or (c) partly within Australia and partly outside Australia. (2) This Chapter applies to conduct of a law practice occurring - (a) wholly within Australia; or (b) partly within Australia and partly outside Australia. (3) This Chapter applies to conduct of a lawyer or law practice whether consisting of acts or omissions or a combination of both. (4) This Chapter extends to - (a) a former Australian legal practitioner or former Australian-registered foreign lawyer in respect of conduct while an Australian legal practitioner or Australian-registered foreign lawyer in the same way as it applies to an Australian legal practitioner or Australian-registered foreign lawyer, with any necessary modifications; …"
The Council relies on section 301 and 302 of LPUL to ground the jurisdiction in the Tribunal to make the protective orders it seeks.
In EFA at [164], the Court stated: "… Conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding: there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) is concerned with the capacity of the conduct to constitute unfitness. …" (original emphasis)
At [169], [171]-[173] in EFA, the Court stated: "169. There is something of a paradox in s 297(1)(b). On a literal interpretation the paragraph focuses on the objective circumstances of the conduct found ("conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law"). Yet, as the majority judgments in Ziems, (particularly that of Kitto J), show, a finding of unfitness involves more than an objective analysis of the impugned conduct, absent other relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character. … 171. To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 - by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone. 172. A finding that the impugned conduct would justify a finding of unfitness needs to be made in the context of all available evidence at the time of Stage 1 of the proceeding. It may be, in some cases, that the Commissioner or the relevant professional association has available to it evidence of other instances of conduct similar to, or equally discreditable as, that under consideration; clearly that would be a relevant factor in the determination of whether the conduct in question (not being isolated) was such as to justify a finding of unfitness. That is not this case: so far as the evidence (at the Stage 1 hearing) goes, this was indeed an isolated instance of appalling conduct on the part of the respondent. (At this point, the evidence given at the Stage 2 hearing that adds weight to that inference must be ignored). 173. "Poorly judged, vulgar, and inappropriate" as the Tribunal correctly found the conduct to be, we are not persuaded that the Tribunal was wrong to decline to characterise it as conduct that would (of itself) justify a finding of unfitness. There was nothing to add to that conduct to warrant a finding of unfitness."
The Court of Appeal was aware, through the filing of an affidavit in the appeal hearing, of the costs which EFA had incurred as a result of the proceeding brought against him by the Council. Further, detail of the very substantial increase in the premium for his Professional Indemnity Insurance was provided. There was also a refusal by the insurer to continue to cover EFA at the same level ($4 million).
At [185]-[186] the Court said: "185. There are other factors that need to be taken into consideration. The conduct in question took place on 21 July 2017. The respondent was aware, at least from 2 August 2017, that his conduct was under consideration by the Council. On 7 September 2017 the Council first resolved to take disciplinary action. On 23 August 2018 it withdrew the first complaint and substituted another. It was not until 3 December 2019 that the Council filed its application in the Tribunal. It was another year before the Stage 1 hearing in the Tribunal took place (December 2020). The Tribunal delivered its Stage 1 decision promptly enough, in March 2021, and its Stage 2 decision in May 2021. For more than 4 years the respondent has lived with the uncertainty of his future. It is not necessary to attribute blame for the delay in bringing the matter to a conclusion; the effect has, plainly, involved significant hardship to the respondent. 186. There was also evidence of a great deal of public comment about the events of the dinner. Notwithstanding the non-publication orders, it might be inferred that the respondent's reputation has suffered damage. The media publications were, almost without exception, and with various degrees of vigour, condemnatory of the course the Tribunal had taken in reprimanding the respondent, without further penalty, and of the respondent's conduct. In many cases they misstated the evidence and the findings of the Tribunal. …"
At [194]-[196], the Court stated: "194. This Court does not underestimate the seriousness of the respondent's conduct, nor its implications. At its heart it is sexual harassment that has no place in any society, and certainly not in the ranks of an honourable profession. The conduct towards A was, as the Tribunal found, crass and vulgar. The conduct towards H was demeaning, humiliating and inexcusable. Intoxication afforded no excuse. The conduct called for sanction. 195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: notwithstanding the non-publication orders, a level of public notoriety and humiliation; a four year period of anxiety, while the Council's investigations proceeded; a further period of anxiety since the filing of the Council's appeal; severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; the termination of the respondent's marriage and disruption to his family; a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and an unquantifiable but real and significant impact on the respondent's practice. 196. Bad as the respondent's conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the "human frailty" that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms."
In Council of the Law Society of NSW v Yoon, the Tribunal considered whether a legal practitioner should be the subject of a recommendation that his name be removed from the Roll. The Tribunal set out the following (at [46]-[54]): "Fitness to practice: should a striking-off be recommended? … 46. Findings of professional misconduct having been made, we may, under s 302 of the Uniform Law make such orders as we think fit, including any one or more of the orders specified in that section. s302 (1) (f) permits us to make an order recommending that the name of the lawyer be removed from the roll 47. It is clear from the authorities that the ultimate issue, where an order for removal from the roll is contemplated, is whether the practitioner is shown not to be a fit and proper person to be an officer of the Supreme Court :A Solicitor v Law Society of New South Wales [2004] HCA 1; [2004] 216 CLR 253. 48. The principles guiding the Tribunal in determining whether a solicitor's name should be removed from the roll were summarised by Beazley JA (as she then was) in Law Society of NSW v Walsh [1997] NSWCA 185 at 224 as follows: '1. The Tribunal's power is discretionary; 2. Subject to considerations which would compel the Tribunal to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when the practitioner has been found not to be of good fame and character; 3. The substantive considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Tribunal's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct to promptly report it. 4. In general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct, or service to the profession "are of considerably less significance than in the criminal sentencing process". (Citing Law Society of NSW v Bannister [1993] 4 LPDR 24 at 13)' 49. It is also clear that, in deciding that ultimate issue, we must proceed on the basis that disciplinary proceedings are concerned with protection of the public. In Walsh, Beazley JA went on to confirm that: 'The Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors.' 50. In Dupal v Law Society of NSW [1990] NSWCA 56, a case involving misappropriation of monies entrusted to a solicitor, Kirby P noted at 57 that [']the normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll'. 51. In the same decision, Handley JA said, at 68: 'This Court would be departing from a long course of authority if it were to allow the appeal and substitute a period of suspension for the order of the Tribunal removing the Appellant from the Roll. ... Any decision to the contrary would signal to the profession and the community that this Court was no longer insisting on solicitors maintaining the highest standards of personal honesty and integrity in their dealings with clients and the public and in the handling of the matters entrusted to their charge. The maintenance of those standards and the public interest require, in my judgment, that this appeal be dismissed. It is well established that the jurisdiction being exercised in this case is not penal but disciplinary and that it must be exercised for the benefit of the public.' "Probable permanent unfitness" to practice 52. In New South Wales Bar Association v Cummins [2001] NSWCA 284 at [24], Spigelman CJ confirmed the principle which had been adopted by McHugh JA in the unreported decision of Prothonotary of the Supreme Court of NSW v Ritchard (Unreported, Court of Appeal NSW, 31 July 1987), to the following effect: 'An order for the involuntary removal of the name of a practitioner from the Roll of solicitors is made only because the probability is that the solicitor is permanently unfit to practise. Unless the Court is persuaded that the probability exists, the proper order to make will usually be one of suspension or fine instead of removal.' Conclusions 53. We are satisfied on the basis of the evidence as analysed above that : (1) Mr Yoon's conduct was disgraceful and dishonourable to a degree requiring that his name be removed from the roll; (2) he has been shown not to be a fit and proper person to be an officer of the Supreme Court; (3) the factors outlined in the authorities extracted above and in particular our duty to protect the public require Mr Yoon's name to be removed from the roll; and (4) as at the date of this decision he appears in all probability to be permanently unfit to be allowed to practice. 54. However, we conclude with an observation based on Handley JA's remarks in Dupal, at 68. That is that the decision in Ex Parte Lenehan (1948) [77 CLR 403] stands as continuing authority for the proposition that a strike off order is not final and is not, in the graphic language of James QC (as he then was), in Jauncey v Law Society (Court of Appeal, unreported, 1 February 1989) "a sentence of professional death". Although readmission is not common, there are instances of readmission to the roll on demonstration of a sufficient period of commendable conduct showing rehabilitation and fitness."
The Council submitted that the disciplinary jurisdiction is concerned with the protection of the public. We were referred to the decisions in Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24 at [25]. It submitted that the protection provision may also involve deprivation to the person disciplined. The order will have a deterrent effect.
The Council referred us to the High Court decision in Clyne at [19] (see submission from the Council, par 12): "… A relationship of trust and confidence between that Court and the members of the Bar of New South Wales is essential for the due administration of justice in New South Wales, and that relationship would be in danger of being impaired if, on any but the most compelling grounds, the High Court were to restore to the roll of barristers a person who had been held by the Supreme Court not to be a fit and proper person to practise before it. Here the facts lead inevitably, in our opinion, to the affirmative conclusion that the Supreme Court was entirely right in holding that the appellant is not a fit and proper person to practise as a member of the Bar of New South Wales."
Again, in Clyne at [23], the Court said: "As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worthwhile to quote yet again the oft-quoted words of Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431 . His Lordship said : "This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them" (1892) 1 QB, at p 451 . The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side. This was explained to the appellant, who should have known it before, by Manning J. in certain proceedings in April 1957, to which we shall refer in a moment."
In Legal Practitioners Complaints Committee v Thorpe, the Full Bench of the Supreme Court of Western Australia, referred to a prolonged period of unprofessional conduct may, taken together, justify removal from the Roll. The Court stated at [44]-[45]: "44. A prolonged period of unprofessional conduct may justify an order removing a practitioner from the roll even if aspects of that conduct, taken individually, would not justify such an order: Legal Practitioners Conduct Board v Trueman [2003] SASC 58 [at] [13] (Doyle CJ, Duggan & Gray JJ agreeing); Law Society v Murphy [1999] SASC 83 [at] [18] (Doyle CJ, Millhouse & Prior JJ agreeing). 45. A practitioner's failure to understand the impropriety of his or her conduct may be an important factor in determining whether that practitioner should be permitted to remain on the roll: Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [at] [35]; New South Wales Bar Association v Evatt (1968) 117 CLR 177, [at] 183‑184; Law Society of New South Wales v Moulton [1981] 2 NSWLR 736, [at] 740‑741, 742‑743 (Hope JA, Reynolds JA agreeing), 754 (Hutley JA).
In Kerin, the Full Court of the South Australian Supreme Court, hearing an application by Legal Practitioners Conduct Board to have a legal practitioner removed from roll of practitioners, stated at [25]: "The circumstances disclosed before this Court reveal a failure by the practitioner to understand public professional standards. In particular the position is that, despite the earlier suspension from practice, on his return he continued to behave in a manner inappropriate for a legal practitioner. The circumstances, found proved by the Tribunal, demonstrate a disregard of the practitioner's professional obligations and a failure to meet those obligations. The material before this Court suggests that the practitioner's behaviour cannot be said to be behind him, isolated, and unlikely to recur."
The Bar Council had submitted the Respondent had disregarded letters and statutory notices from a legal professional body. It relied on the decision in Kerin.
In Legal Practitioners Conduct Board v Le Poidevin, the Full Court of the South Australian Supreme Court stated (at [15] in the judgment of Doyle CJ) in the hearing of an application for an order that the name of the defendant be struck off the roll of legal practitioners: "The unprofessional conduct found against the defendant is serious. To practise the profession of the law without holding a practising certificate is a serious matter. In view of the period of time that had elapsed since the defendant last held a practising certificate, and absent any explanation from him, I infer that this conduct occurred deliberately and knowingly. Likewise, the defendant's disregard of the letters and statutory notices without any apparent explanation or excuse, indicates a flagrant disregard of his obligations as a practitioner of the Court and a clear failure to meet standards of conduct reached by practitioners of good repute."
In New South Wales Bar Association v Evatt, the High Court stated at [12]: "The Supreme Court was, however, in error in not appreciating that its findings of misconduct demonstrated the unfitness of the respondent to be a barrister, and compelled the conclusion that he should be disbarred. The facts proved and found demonstrated unfitness to be a member of the Bar - not some isolated or passing departure from proper professional standards amounting to something less than proved unfitness. The Court did regard certain matters as extenuating circumstances but none of them really bears upon the vital issue, viz. whether the findings of misconduct, which were made, proved the unfitness of the respondent to be a barrister. The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v. N.S.W. Bar Association (1960) 104 CLR 186, at pp 201, 202 . The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser."

[55]

Drawing the Conclusion

The matter we need to determine is whether the Respondent's conduct, as we have found in the Stage 1 judgment, viewed with his disciplinary history, enables a finding that he is not a fit and proper person to engage in legal practice.
As stated in EFA at [164], [169]: "164. … Conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding. 169. … [A] finding of unfitness involves more than an objective analysis of the impugned conduct, absent other relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses … also on the personal qualities of the lawyer in question, and other circumstances that bear upon conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character."
At Stage 1, we found the conduct of the Respondent was professional misconduct. We so found because of the seriousness of the Respondents conduct. We summarised our finding as follows (Stage 1 decision at [282]: "In our view, and we find, the conduct of the respondent in joining Mr Wells as a defendant to proceedings in the Supreme Court and in the assertions and allegations made against him as set out above, was professional misconduct by reason of his contravening rules 60(a), 61(a), 64(a), and 65(a) of the Barristers Rules. It was conduct of the most serious kind. There was no reasonably available factual foundation for joining Mr Wells to the proceedings or for the serious allegations of misconduct levelled against him. The inevitable consequence of joining Mr Wells to proceedings, where he was acting for one of the defendants, Alex, was that he would be required to cease acting for his client and would also be required to defend himself against those very serious allegations. That finding underscores the seriousness of the professional misconduct on the part of the respondent."
In EFA, the Court said at [171]: "To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 - by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone."
We now need to undertake, in the light of the evidence taken in Stage 2, "a holistic assessment of the character" of the Respondent, and therefore "his fitness to engage in legal practice".
The evidence we have set out in these reasons and in the Stage 1 decision, paints a picture of the Respondent being a person who was drawn into a legal proceeding by a close family friend. His services in the litigation, which led to the primary complaint made against him in this proceeding, were provided because that close family friend (a goddaughter of his) sought his assistance. He clearly dedicated a great deal of time and effort in that litigation without, it seems, any prospect of immediate personal financial reward.
It is the manner in which he conducted the litigation in which he caused Mr Wells to be joined as a party, which led him to the circumstance in which he finds himself today. It was the inability to reflect on a proposed legal pathway which led to the breaching of Bar Rules and an absence of natural caution which is the hallmark of a practising lawyer. The precautionary filters which prevail with practising lawyers are focused on the power of a legal proceeding, the language which can be used in same, and the harm which may flow to a citizen drawn into litigation inappropriately because of an unfounded allegation or assumption.
An example of the Respondent's impetuous action, entered into without proper reflection, is the communication he made with the chambers of Justice Rees in the Family Court of Australia. That action led to the Respondent being reprimanded by the Bar Council. In the hearing before us, the Respondent indicated in his submission that he still doesn't understand why that was an inappropriate communication. He saw it as justified in the circumstances of that case.
The letter which the Respondent wrote to the Governor of NSW asking that she review the appointment of Justice Harrison SC to the Supreme Court is an example of the Respondent's reaction to what he saw as an outrageous political action. We consider that any practising legal practitioner, reading that letter, would be confronted by the seriousness of the allegations contained therein and the fruitlessness of writing to the Governor expecting that she would act on same and not sign the appointment document for Justice Harrison.
We have considered the submissions of the Respondent and the content of his cross-examination of both Mr Heger and Mr Moore. We have considered the statements made to us by the Respondent and, in particular, the phrasing used in the recusal applications he made. It seems to us that the Respondent has not developed any greater judgment and insight into the manner in which he conducted this hearing compared to that he employed in the proceeding in which Mr Wells was joined as a party. In particular, we refer to the applications made by the Respondent which involved an allegation (albeit framed as apprehended bias) that Ms Morgan SC had some inside knowledge about the decision made by the Tribunal at Stage 1, which he said, was not set out in the reasons published. That application had in its construction an assumption that the Tribunal members would communicate with a counsel or lawyer for a party to a proceeding, outside of the confines of a hearing and about an ongoing legal proceeding. It also contained an assumption that a barrister, being a Senior Counsel or otherwise, would continue to represent a party in a proceeding without disclosing any such communication, be it inadvertent or not. We conclude there was no proper basis to make that suggestion as the foundation for an application for recusal.
The same observation can be made about the Respondent's insight and judgment in relation to his statements addressed to Senior Member Dixon SC, in particular, again as part of a recusal application seeking the Senior Member recuse himself from the further hearing, that the Senior Member "could be described as a cheetah on a branch about to jump on his prey". When questioned about such statement, the Respondent said: "If I said that then I withdraw that."
The Respondent also accused the Tribunal of having predetermined the litigation by already having decided it would make the recommendation that his name be removed from the Roll, before hearing his submission. Again, there was not, in our view, any proper basis for such an accusation.
We have set out here only some of the statements made by the Respondent to the Tribunal, or about the Tribunal members, or about the Senior Counsel for the Council, which we consider would not have been made by an informed and experienced legal practitioner.
We need to consider if we could be confident the Respondent might change his style of practice as a barrister if he was to continue to be permitted to remain on the Roll. We need to consider if there is any other outcome, defined by the LPUL, which we could adopt as a protective order which would meet the requirements of the LPUL and ensure that the Respondent will be fit to practise as a barrister into the future.
The Respondent gave no evidence in this Stage 2 hearing. He did give evidence in the Stage 1 hearing; however, he complained that the Council had limited its' cross-examination of him, thus robbing him of the opportunity to set out his case. The Respondent was given ample opportunity to file an affidavit setting out his evidence. We had anticipated he would provide us with his evidence however, that did not eventuate. We anticipated he might have called witnesses to attest to the good character of the Respondent however, that did not happen. When he made his application to give oral evidence on the last day of the hearing, without providing any reasonable grounds for us to allow such a course, it was all too late.
It was reasonable for us to anticipate that the Respondent would file an affidavit which might help us to determine if, at the end of this hearing, he was fit or unfit to be a practising lawyer. The Respondent gave us very little assistance in our determination of that crucial aspect of the case.
The decisions we have set out in these reasons set guidelines for the consideration of disciplinary proceedings brought pursuant to the LPUL. We have drawn the following guides from those decisions and we have set out our conclusions in relation to each of the considerations:

[57]

Any other relevant and extenuating circumstances of the impugned conduct 1. The only evidence provided by the Respondent was read and heard in the Stage 1 hearing. The Respondent relied upon a Statement which he adopted in his oral evidence as true and correct. The material which might possibly be regarded as extenuating circumstances leading the Respondent to the conduct which was found to be professional misconduct is as follows: 1. The Respondent was instructed as a direct brief at around Australia Day 2016. He said he was instructed "on the run". He was instructed because of a family connection via his goddaughter. 2. The Respondent was called to assist Tony Ristovski, who became his client because the solicitor who he had otherwise retained was in London and not available to help immediately. There was already a proceeding in the Supreme Court when the Respondent was instructed. 3. The Respondent appears to have been drawn into what was a family dispute where the client was upset (perhaps angry) about the conduct of his brother, and more so the conduct of his brother's solicitor, Mr Wells. The Respondent was provided with information (perhaps gossip) about Mr Wells by his client. He was told Mr Wells had sent correspondence to the home of the paternal head of the subject family and that person was extremely ill and expected to die (and did die in September 2015). 4. The Respondent understood he was expected to act for the client pro bono. 5. The Respondent formed the view that Mr Wells had an ulterior purpose in commencing the Supreme Court litigation. He formed that view after reading a letter authored by Mr Wells and dated 28 November 2014. He formed the view that the litigation was "solicitor-driven". 6. The conclusion reached by the Respondent about the motivation of Mr Wells clearly coloured his view of all the actions taken by Alex Ristovski (Mr Wells' client), and thereby robbed the Respondent of the ability to view the actions objectively as he should have. 7. The Respondent was of the view that documents filed in the Supreme Court in what he called the 2015 proceeding, involving the Ristovski litigation, would assist in showing his conclusions as to the motivations and actions of Mr Wells justified the Respondent's actions leading to the conduct the subject of the Bar Council complaint. He said that he could not afford to pay for copies of those documents and that the Bar Council should have put all those documents before the Tribunal. 8. The Respondent had thought he would be able to have an affidavit from Nadine Ristovski and/or another witness, which would have supported his actions taken against Mr Wells. That witness or those witnesses were unavailable to provide an affidavit. 9. On 21 November 2016, when the Respondent appeared before Justice Black in the Ristovski matter, Justice Black was "extremely annoyed" with the Respondent because the Respondent had kept him waiting in court while the Respondent was in another hearing before another Supreme Court judge. That perception of judicial annoyance, may have impacted upon some of the Respondent's conduct in that court, on that day.

[61]

Is the impugned conduct an isolated instance of unprofessional conduct or professional misconduct? 1. The conduct set out in the Respondent's disciplinary history, quoted from the evidence of Mr Heger above, demonstrates that the Respondent's impugned conduct, as found by us in Stage 1, is not an isolated instance of unprofessional conduct. 2. The earlier conduct reveals the following: 1. Four findings by the Bar Council of unsatisfactory professional conduct; 2. A number of breaches of the Bar Rules in the conduct of his practice; 3. A failure to comply with s 371 notices, a requirement that a practitioner must comply with on pain of penalty; and 4. An inability to notify the Bar Association of critical events such as bankruptcy. 1. The Respondent has a disciplinary history which could only be described as extensive. Further, there is evidence that the Respondent has not complied, even during the time of this proceeding, with the undertaking he gave to the Bar Council not to use the descriptive "Barrister" in conjunction with his name, thereby suggesting he was able to practise as a barrister. 2. In our view, and we find, the Respondent has not accepted or appreciated that being a lawyer on the Roll carries with it specific obligations to fully and properly recognise the role of the regulatory body in respect of overseeing the professional standards required of practitioners. The Respondent did not appear to appreciate that there is an ongoing obligation to comply with the requirements set by the regulatory body to ensure that standards are met and the public are thereby protected, and that failure continues. 3. In respect of the matters relied upon by the Bar Council (and leaving aside the complaints in 2001 and 2002 which were ultimately not proven because the applications to the Court were out of time), the conduct essentially covers a period of repeated failure on the part of the Respondent to meet his obligations as a practitioner. 4. Very concerning is the fact that in this Stage 2 hearing, the Respondent did not seek to address or explain circumstances giving rise to the findings of previous unsatisfactory professional conduct in his disciplinary history. Instead, the thrust of the Respondent's arguments was to the effect that others are to blame. He pointed to a desire to lead evidence that past Presidents of the Bar Council had engaged in conduct which was claimed to be an abuse of power, that the previous CEO of the Bar Association had a "vendetta" against him, and had he been permitted to give evidence and explore those issues it would apparently have exculpated him from the misconduct found over a period of time. 5. It is difficult to see how, for example, a failure to comply with a s 371 notice, or a failure to provide a costs agreement, or render service, or purporting to be a barrister, can possibly be the subject of the alleged "vendetta". 6. Instead of addressing his conduct, the Respondent repeatedly made unfounded accusations against others including Mr Wells, Senior Counsel for the Bar Association, the Bar Council's previous CEO and previous Presidents, in circumstances where he had no evidence, or had not tendered evidence to us, which could demonstrate that this blame shifting for his own misconduct, had any basis. 7. In our view, the Respondent has repeatedly engaged in conduct that flouted his professional obligations as submitted by the Council. He certainly has not learned from past experience. The previous disciplinary orders made by the Bar Council had, in our view, little deterrent effect on the Respondent. 8. In the current proceedings, he has continued to demonstrate a failure to recognise his professional obligations in relation to other practitioners and the Bar Council. Notwithstanding the findings that we made in Stage 1 which, at their core, related to unfounded allegations against Mr Wells, the Respondent has continued in the Stage 2 proceedings to make unfounded and serious allegations of misconduct against Senior Counsel, the Bar Association and its officers, the Bar Council, and members of this Tribunal. 9. In our view, the Respondent's disciplinary history weighs significantly in support of a recommendation that he be removed from the roll of practitioners.

[69]

Is the Tribunal satisfied that the probability is that the Respondent is permanently unfit to practice? It is to be remembered that a removal of a barrister's name from the Roll of legal practitioners, does not mean he/she could never be re-admitted. 1. In order for the Respondent to be fit to continue practice in the face of the finding made against him in the Stage 1 hearing, it would, in our view, be necessary for him to acknowledge his fault in the conduct found by us to be professional misconduct and unsatisfactory professional conduct. Further, he would need to acknowledge his conduct in the previous findings which were made against him by the Bar Council of unsatisfactory professional conduct, rather than attributing those findings to the influence of others conducting a vendetta against him. He would have needed to demonstrate insight which would satisfy us he understood what that improper conduct was, how he came to conduct himself in relation to same, and what he has done or will do to ensure no such circumstance will occur again. Largely, that has not occurred. 2. Although the Respondent did in his final submission acknowledge some wrongdoing on his part, he was still not, in our view, accepting full responsibility for same. He still demonstrates he is convinced he is the subject of a personal victimisation by Mr Selth, a former CEO of the NSW Bar Association and some other members of the Bar Council over a number of years. He attributes 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. 3. His action in writing to the Governor of NSW about the appointment of Justice Harrison to the Supreme Court of NSW suggests to us that he does not have the benefit of a mind which urges caution when he is planning to take action which will or can have adverse consequences for another person, and where he is likely to be the subject of criticism from his peers and his colleagues in the legal profession, or action from the Bar Association. 4. The ability to practise as a lawyer carries with it a great responsibility to the Court, the public and to the reputation of the profession as a whole. It also carries with it specific obligations to fully recognise the role of the regulatory body in respect of overseeing the professional standards required of practitioners. Those requirements, set by the regulatory body, ensure that standards are met and the public are thereby protected. Fitness to practice as a lawyer requires the recognition of that responsibility and an understanding of the limits which should not be crossed. Unfortunately for the Respondent he has not demonstrated to us that he understands, or accepts, those limits and will abide by them if he is permitted to continue as a barrister or practicing lawyer. 5. He has not given evidence as to how he would ensure there will be no further misconduct by him if he could continue to practise as a barrister or Australian-registered lawyer. 6. We conclude that at the time of this determination the Respondent is not "fit to practise" as a legal practitioner and we find he is probably permanently unfit to practise.

[74]

What protective order is required to maintain the public's confidence in the legal profession and the Tribunal and the application of the LPUL in the control and supervision of the legal profession, thereby protecting the public at large? 1. These last two considerations need to be considered together. All of the other considerations really inform this consideration. 2. We conclude that the recommendation sought by the Council is necessary in this case to meet the needs of the public interests and the deterrence requirements in relation to the legal profession at large. We have considered whether any lesser sanction imposed by us would meet the public interest, but have concluded that a lesser sanction will not. 3. We have had regard to what the NSW Court of Appeal said was appropriate in EFA. This case carries none of the redeeming qualities seen in the EFA case. 4. The Respondent's conduct which gave rise to the finding of professional misconduct arose during the practice of law by the Respondent. The conduct seriously ignored the Bar Rules and the privilege which lawyers have in the conduct of a legal proceeding. The naming of Mr Wells and the orders sought against him were found by us to have no proper foundation and to have a very depriving consequence for Mr Wells' clients at the time he was named. The Courts rely upon legal practitioners to practise with due regard to the powers which they can invoke, and the harm which can arise if those powers are not used appropriately and with clear evidentiary foundation. 5. The Respondent has a significant disciplinary history which predated the conduct addressed in the Stage 1 hearing. 6. When practitioners do not demonstrate the ability to respect and apply the conduct which is expected of them, then they do not hold the necessary capacity to be fit to practise. 7. In this case, the Respondent has provided us with no evidence he could change, or that we could be confident he would not conduct himself in the same manner in the future.

Council of the New South Wales Bar Association v de Robillard

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (78 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (50)

Cited By (4)