[2000] HCA 63
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
(2023) 97 ALJR 419
Vakauta v Kelly (1989) 167 CLR 568
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 63
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427(2023) 97 ALJR 419
Vakauta v Kelly (1989) 167 CLR 568
Judgment (7 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: Before the Court on 16 February 2024 was a summons filed on 13 September 2023 in the name of the Council of the New South Wales Bar Association (Council), seeking a declaration that the respondent, Christian de Robillard, a barrister, is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Supreme Court (the Roll) and an order that Mr de Robillard's name be removed from the Roll. The application for removal is made both pursuant to s 23(1)(c) of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law), or in the Court's inherent jurisdiction to supervise legal practitioners listed on the Roll, which is preserved by ss 264, 22 and 23 of the Uniform Law.
The removal application follows the finding by the NSW Civil and Administrative Tribunal (NCAT) on 10 December 2021 (in proceedings that had also been commenced in the name of the Council) that the respondent had engaged in professional misconduct and unsatisfactory professional conduct (Council of the New South Wales Bar Association v de Robillard [2021] NSWCATOD 207) (the Stage 1 reasons) and the subsequent making of orders on 1 June 2023, in the terms sought by the Council, recommending the removal of the respondent's name from the Roll (Council of the New South Wales Bar Association v de Robillard [2023] NSWCATOD 75) (the Stage 2 reasons).
As events transpired on 16 February 2024, this Court did not commence to hear the Council's removal application. This was in circumstances where the respondent made a recusal application in relation to all of the members of the bench. Instead, the Court heard submissions on that recusal application and then adjourned briefly to consider those submissions. The recusal application was dismissed, with reasons for that decision to be published as soon as practicable. Directions were then made in relation to the matter (as will be explained in due course). For completeness, it should be noted that a separate recusal application was made during the hearing but then expressly withdrawn in relation to one of the members of the bench as constituted on 16 February 2024. It is not necessary to say anything further about that application.
These are the Court's reasons for refusing the recusal application.
[3]
Background
Relevant to the consideration of the recusal application is the following further background to the matter.
On 29 June 2023, the respondent filed a notice of appeal in relation to both the Stage 1 reasons and Stage 2 reasons.
On 25 September 2023, the Registrar made directions for the Council's summons and the respondent's appeal to be heard together and listed the two matters for hearing on 16 February 2024. Various directions were made by the Registrar for the preparation of both matters. In relation to the appeal proceedings, after there had been non-compliance by the respondent with a number of directions as to the filing of submissions, the Registrar listed the matter for further directions on 29 January 2024 for the respondent to show cause as to why the proceedings should not be dismissed for want of due dispatch.
On 29 January 2024, the Registrar extended the time for the respondent to file and serve his submissions in chief in relation to the appeal to 5pm on 5 February 2024 and made a self-executing order (commonly referred to as a guillotine order) to the effect that if the respondent failed to file and serve his submissions in chief in respect of his appeal by that time then the appeal proceeding "is dismissed" (order 2). The respondent did not file his submissions on the appeal within the time so directed. Rather, the respondent sent an email to the Registrar at 10am on 6 February 2024 advising that he was not able to file the submissions by close of business the previous day and requesting that the submissions be taken as filed. The Registrar's response was to advise that, as a result of the fact that the submissions were not filed and served by 5pm the previous day, orders had been made in relation to his appeal (including that, in accordance with order 2 made on 29 January 2024, the proceeding was dismissed).
Consistent with that advice, the record of proceeding on JusticeLink indicates that, on 6 February 2024, an order was entered in the appeal proceeding in the following terms "In accordance with Order 2 made on 29 January 2024, the proceeding is dismissed". The hearing date for the appeal was vacated and the file in relation to the appeal proceeding was closed. Strictly speaking, the order made on 6 February 2024 should best be regarded as confirming the dismissal of the appeal proceedings on 29 January 2024, since the operation of the self-executing order was that the appeal was automatically dismissed as of that date when no submissions had been filed by the respondent by 5.01pm on 5 February 2024. This matter is only relevant to the time within which an application may be brought reviewing the order dismissing the appeal.
The respondent has confirmed that his intention is to challenge the Registrar's order for the dismissal of the appeal proceedings. Although, as at 16 February 2024, no such application had been filed, the respondent's intention to do so was relevant to the directions made on 16 February 2024 after the dismissal of the recusal application.
[4]
Recusal application
The nub of the respondent's recusal application is that he contends that this Court has already pre-determined one core issue raised by his appeal (namely, as to the legal capacity of the Council) by reason of costs orders made by the Registrar on 21 September 2023 in favour of the Council. The costs orders made on that day included orders in relation to notices of motion filed by the Council seeking to enjoin the respondent from communicating other than with the Council's solicitors in relation to the appeal and the Council's conduct of the matter.
The respondent contends that the Council does not have the legal capacity or existence as a legal entity capable of entering into legal relations and pursuing proceedings in a tribunal or court of law; and hence he maintains that the proceedings brought by the Council in the Tribunal were not validly commenced. The respondent argues that the NCAT proceedings should be declared "void and irrelevant"; and therefore that the Council, in the removal proceedings, cannot rely upon the evidence filed in the Tribunal.
The respondent, in oral submissions on his recusal application, appears to proceed on the basis that because the order by the Registrar in relation to costs is an order of the Court (i.e., a judicial decision as opposed to a purely administrative decision), the members of this Court constituting the bench on 16 February 2024 and, indeed, any other members of this Court, are bound thereby. Hence, he contended that the issue of the Council's capacity to commence the proceedings has been pre-determined in favour of the Council without a hearing and without any reasons being given; and that there is a reasonable apprehension of bias on the part of this Court. The respondent submitted that this Court should be constituted as a bench of five judges (including some from out of this jurisdiction) to hear the Council's summons or that the matter should be remitted to the High Court for determination.
[5]
Determination
There is no dispute as to the relevant test applicable on an application for a judicial officer to disqualify himself or herself for apprehended bias, that being whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The application of this "double might" test requires: first, identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ, as confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ). Those principles were considered by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419; and applied recently in this Court in Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16 per White JA (see at [23]-[24], with whom Mitchelmore and Kirk JJA agreed).
All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform himself or herself before reasonably forming any firm apprehension) will be taken into account (see Vakauta v Kelly (1989) 167 CLR 568 at 584-585; [1989] HCA 44 per Toohey J (with whom Brennan, Deane and Gaudron JJ agreed); Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Clarke JA).
In the present case, as noted above, the matter that the respondent identifies as that which might lead this Court to decide the questions before the Court on the Council's summons other than on the merits is the fact that the Registrar has made a costs order in favour of the Council (thus, it is argued, deciding the core issue as to the legal capacity of the Council to bring proceedings and to incur costs). The perceived connection between the Registrar's costs decision and the apprehended deviation from the course of deciding the Council's summons other than on its merits is the respondent's contention that this Court is bound by that decision.
The flaw in the respondent's argument is that, while the Registrar's costs decision is indeed an order of the Court (binding on the parties unless set aside or varied), it is a decision that is reviewable by this Court. The fact that no application was made by the respondent for review of that costs order is not to the point. What is relevant is that the Registrar's costs decision does not bind this Court to any particular conclusion in relation to the core issue that the respondent seeks to raise both in his (at this stage, dismissed) appeal and in response to the Council's removal application.
Thus, no fair-minded lay observer could reasonably apprehend that, by reason of the Registrar's costs decision, the members of this Court might not bring an impartial and unprejudiced mind to the resolution of the question(s) they will be required to decide in the determination of the Council's summons. Indeed, insofar as the respondent took issue with the lack of a response when Counsel announced her appearance for the "Bar Council", any apprehension that the Court had pre-determined the issue raised by the respondent as to the Council's legal capacity to institute proceedings would surely have been put to rest by the fact that the directions made by the Court in relation to this matter include the filing of submissions going among other things to the very issue of the Council's legal capacity.
For those reasons, the test for apprehended bias was not made out, nor is the suggestion that there is an institutional bias warranting the hearing of this matter by judges from other jurisdictions or the remittal of the matter to the High Court. The members of this Court accordingly declined to recuse themselves. In that regard, it is important to bear in mind the admonition of Kirby P, as his Honour then was, in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 418 that judges must perform the duties of their office "with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial".
Directions have now been made setting a timetable for the filing by the respondent of any application to review the Registrar's decision which led to the dismissal of the appeal and for submissions in relation to any such application, as well as submissions on the issue of legal capacity of the Council, with a view to both matters being heard together at a future date. Hearing the respondent's foreshadowed application in relation to the dismissal of his appeal proceedings (and the appeal itself if the respondent's challenge to the dismissal is upheld) together with the Council's summons is consistent with the just, quick and cheap disposition of the real issues in dispute, not least because that status of the decision by NCAT may affect the basis on which the removal application proceeds. For that reason we did not commence to hear the Council's summons and we do not regard ourselves as part-heard on the removal application. The future case management of these matters will be dealt with through the President's chambers.
[6]
Orders
For the reasons given above, the Court makes the following order:
1. Dismiss the respondent's application that the Court recuse itself on the grounds of reasonable apprehension of bias.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 February 2024