de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard - [2024] NSWCA 299 - NSWCA 2024 case summary — Zoe

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de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard

[2024] NSWCA 299

Court of Appeal (NSW)|2024-09-11|Before: Gleeson JA, Leeming JA, Legislation Amendment J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2024-09-11

Before

Gleeson JA, Leeming JA, Legislation Amendment J

Source

Original judgment source is linked above.

Judgment (54 paragraphs)

[1]

Introduction

Mr Christian Roger de Robillard is a barrister admitted to practice in New South Wales. After finding that he was guilty of professional misconduct and unsatisfactory professional conduct under the Legal Profession Uniform Law (NSW) (Uniform Law), the New South Wales Civil and Administrative Tribunal (Tribunal) recommended to this Court based only on the finding of professional misconduct that Mr de Robillard's name be removed from the roll of legal practitioners. On that recommendation the Council of the New South Wales Bar Association (Bar Council) applied by summons for declaratory relief and a removal order. By his appeal, Mr de Robillard challenges the Tribunal's findings and the recommendation to this Court for a removal order. Mr de Robillard was self-represented in this Court.
The underlying proceedings in the Tribunal were commenced by the Bar Council on 10 November 2020 seeking disciplinary findings and orders against Mr de Robillard under the Uniform Law on two grounds relating to his conduct as a barrister. The Tribunal dealt with that application in two hearings.
At the first hearing, Mr de Robillard was represented by senior counsel and gave evidence. The finding of professional misconduct was based on breaches of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (the Barristers Rules), rr 60(a), 61(a), 64(a), 65(a), and 8(c) relating to the making of allegations of fact in legal proceedings amounting to allegations of serious misconduct against an opposing solicitor which were not reasonably justified or properly available on the material (Ground 1). The finding of unsatisfactory professional conduct was based on breach of the Legal Profession Uniform Conduct General Rules 2015 (NSW) (General Rules), r 13(q)(i) relating to the failure to comply with a personal costs order made against Mr de Robillard on 7 June 2017 in Supreme Court proceedings in which he appeared as counsel (Ground 2): Council of the New South Wales Bar Association v de Robillard [2021] NSWCATOD 207 (the Stage 1 reasons or S1). At the second hearing, Mr de Robillard was self-represented. He did not give evidence but tendered some documentary evidence. As indicated, the Tribunal's recommendation for a removal order was based only on the finding of professional misconduct: Council of the New South Wales Bar Association v de Robillard [2023] NSWCATOD 75 (the Stage 2 reasons or S2).

[4]

The 2015 proceedings

Equity Division proceedings 2015/375735 (the 2015 proceedings) involved an application by Alex Ristovski for access to documents held by the defendant-companies which carried on wholesale and retail seafoods businesses. The directors of the defendant companies were Alex Ristovski and Tony Ristovski. Together with their late father, Dragoljub (Drago) Ristovski, who died in September 2015, Alex and Tony held shares in at least some of the defendant-companies; the detail is not presently relevant.
At a directions hearing on 14 June 2016, Black J suggested that the proceedings be referred to mediation and the parties agreed. The mediation was held on 29 August 2016 but was unsuccessful. Correspondence ensued between the parties' solicitors in relation to various disputes including Alex Ristovski's request for company documents, the freezing of company bank accounts by National Australia Bank, and the control of market stalls at Flemington markets.
On 21 October 2016 Black J made orders by consent that the defendants provide specified documents and information to Alex Ristovski, including copies of a trust deed, specified bank account details and completed copies of tax returns.
On 28 October 2016 Black J granted leave to the defendants to file in Court an interlocutory process dated 28 October 2016, returnable on 31 October 2016, seeking injunctive relief against Alex Ristovski and others, including Mr Wells as fourth respondent, restraining Mr Wells in any way (either directly or through any agent) from aiding, abetting, counselling or procuring Alex Ristovski from contravening or attempting to contravene the requirements of s 181 of the Corporations Act 2001 (Cth).
On 31 October 2016 Mr de Robillard appeared for the defendants in the 2015 proceedings. Black J made orders, including joining Tony Ristovski as tenth applicant in the interlocutory process dated 28 October 2016, and noted the undertaking given by Tony Ristovski that he would file an originating process and points of claim seeking final relief in respect of specified matters by 14 November 2016, such originating process to be listed for directions on 21 November 2016.

[5]

The 2016 proceedings

On 18 November 2016 the defendants in the 2015 proceedings became the plaintiffs in Equity Division proceedings 2016/345756 (the 2016 proceedings) upon filing an originating process and interlocutory process, and points of claim against Alex Ristovski, Marina Ristovski, Jovoka Ristovski and Mr Wells. (Marina Risotvoski was the wife of Alex, and Jovka Ristovski was the mother of Alex and Tony).
The originating process sought the following relief against Mr Wells as fourth defendant at par [7]: The First and Fourth Defendants are enjoined from providing any advice to Jovka Ristovska [sic] or from causing Jovka Ristovska to transfer any asset currently registered in Jovka Ristovka's name to the First and/or Second Defendants. …
The points of claim signed by Mr de Robillard contained the following allegations against Mr Wells at par [49]: In the premises the Plaintiffs contend that the commencement of the original proceedings by the First and Fourth Defendants may constitute evidence of a lack of good faith on the First Defendants [sic] part. The First Defendant was aided and abetted by the Second and Fourth Defendant in the use of the original proceedings for an improper purpose; which included damage to the First to Tenth Plaintiffs. (The reference to the "original proceedings" was a reference to the 2015 proceedings.)
At the directions hearing on 21 November 2016, counsel for Mr Wells indicated that he would argue that the originating process and points of claim should be struck out insofar as they related to Mr Wells. Black J informed the parties that the Court could hear that application immediately if Mr de Robillard did not require a formal application. Mr de Robillard elected to require Mr Wells to file an interlocutory process to seek those orders. Mr Wells filed an interlocutory process on 22 November 2016 seeking to strike out the claims against him.
Mr de Robillard signed written submissions dated 22 November 2016 opposing the strikeout motion, which included the following allegations against Mr Wells: The case against the Fourth Defendant currently include: 17. Aiding and abetting the First Defendant in relation to breaches of section 181 of the Corporations Act (the Act). … 20. It is respectfully submitted that the evidence of Mr Tony Ristovski filed on 28 October 2016 would support a claim that the Fourth Defendant aided and abetted the First Defendant in breaches of sections 181-184, of the Act. 22. The Fourth Defendant aided and abetted the First Defendant in the oppressive conduct, the subject of complaints made [sic] the opening paragraph of the Originating Process. 23. Subject to final instructions, It [sic] will be submitted that the Fourth Defendant overstepped his function as a lawyer and/or officer of the Court; …
At the hearing of the motion on 28 November 2016, Mr de Robillard obtained leave to read the affidavit of Tony Ristovski dated 28 October 2016 filed in the 2015 proceedings (the Ristovski affidavit). He relied upon that affidavit as evidentiary support for the allegations made against Mr Wells. Nevertheless, during the hearing before Black J, Mr de Robillard conceded that: (a) The Points of Claim were not satisfactory and ought to be amended; (b) The Originating Process and the Points of Claim could not stand in their present form; (c) He had not advised the other parties earlier that he would not be defending the pleading in its present form because he was not able to obtain sufficient instructions to have an affidavit sworn; and (d) The person who could give evidence in relation to some of the allegations was not available and therefore Mr de Robillard had not been able to talk to the person and get instructions for an affidavit to be provided, and in those circumstances the points of claim were not satisfactory at the time.
At the conclusion of the hearing, Black J delivered an ex tempore judgment and made orders striking out those portions of the originating process and points of claim which related to Mr Wells and for Mr de Robillard to personally pay the costs of Mr Wells in relation to the interlocutory process filed 22 November 2016 and in relation to the 2016 proceeding, such costs to be payable forthwith.
Balmain Lawyers, acting for Mr Wells, wrote to Mr de Robillard on 6 December 2016 and again on 25 January 2017 requesting payment of counsel's fees in the amount of $10,560 and Mr Wells' costs the subject of a tax invoice issued by Balmain Lawyers in the sum of $7,421.53.
On 1 March 2017 Balmain Lawyers served an application by Mr Wells for assessment of ordered costs. A costs assessor was appointed on 11 April 2017. The costs assessor invited Mr de Robillard to make any objections to the costs assessment process by 1 May 2017. Whilst Mr de Robillard did not make formal objections to the assessment process, he made assertions about the quantum of costs in email correspondence with the costs assessor on 10 May 2017 and 19 May 2017.
On 24 May 2017 the costs assessor issued a certificate of determination of costs in the amount of $16,104.36 plus his costs of $802. On 7 June 2017 the certificate of determination of costs was registered as a judgment of the Supreme Court in the sum of $16,906.36: Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 70(5).
In response to Mr Wells' solicitors seeking payment of that judgment, Mr de Robillard indicated by email on 14 June 2017 that he would be lodging an application for a review of the assessment, but never did so.
Subsequently, on about 13 August 2021, the costs the subject of the judgment dated 7 June 2017 were paid to Mr Wells by Mr Dey, Mr de Robillard's instructing solicitor in the 2015 and 2016 proceedings.

[8]

Relevant statutory provisions

The Uniform Law draws a distinction between "unsatisfactory professional conduct" and "professional misconduct". Section 296 defines "unsatisfactory professional conduct" to include: …conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
Section 297(1) defines "professional misconduct" to include: (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
Section 297(2) says: For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
The definitions of both unsatisfactory professional conduct and professional misconduct are expanded in s 298 to include further specified categories of conduct which, relevantly, include conduct constituting a contravention of "the Uniform Rules": s 298(b). Here, the relevant Uniform Rules are the Barristers Rules and the General Rules made under Pt 9.2 of the Uniform Law.
Relevantly, rules 8(a), 60(a), 61(a), 64(a) and 65(a) of the Barristers Rules, provide: 8 General A barrister must not engage in conduct which is: … (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. 60 Responsible use of court process and privilege A barrister must take care to ensure that the barrister's advice to invoke the coercive powers of a court: (a) is reasonably justified by the material then available to the barrister, … 61 A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material then available to the barrister, … 64 A barrister must not allege any matter of fact in: (a) any court document settled by the barrister, … unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so. 65 A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it, and …
The General Rules, relevantly, include r 13(1)(q)(i) which provides that when considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to specified matters, including: (q) whether the applicant has contravened: (i) an order of a court or tribunal made in any proceedings.

[9]

The disciplinary application in the Tribunal

On 10 November 2020 the Bar Council commenced proceedings in the Tribunal by filing an application for disciplinary findings and orders under the Uniform Law. An amended application was filed on 10 September 2021 just before the commencement of the Stage 1 hearing on 13 September 2021. The amendments included the addition of words in par (1) of the orders sought which made clear that the relief sought was an order that the Tribunal recommend that Mr de Robillard's name be removed from the roll of legal practitioners. The application relied on two grounds.
Ground 1 alleged that Mr de Robillard had engaged in professional misconduct, or alternatively, unsatisfactory professional conduct by allowing the 2016 proceedings to be commenced, and by maintaining proceedings against Mr Wells as the fourth defendant, in circumstances where the proceedings against Mr Wells: 1. invoked the coercive powers of the Court without reasonable justification on the material available to Mr de Robillard, contrary to r 60(a) of the Barristers Rules; 2. made allegations or suggestions under privilege against Mr Wells without reasonable justification from the material available to Mr de Robillard, contrary to r 61(a), Barristers Rules; 3. alleged matters of fact in documents settled by Mr de Robillard where available factual material did not provide a proper basis to do so, contrary to r 64(a), Barristers Rules; 4. alleged matters amounting to serious misconduct against Mr Wells, where Mr de Robillard did not believe on reasonable grounds that there was available material by which those allegations could be supported, contrary to r 65(a), Barristers Rules; and 5. engaged in conduct which was likely to diminish public confidence in the legal profession or otherwise bring the legal profession into disrepute, contrary to r 8(c), Barristers Rules.
The particulars given of this alleged conduct have been summarised at [10], and [14]-[22] above.
Ground 2 alleged that Mr de Robillard engaged in professional misconduct, or alternatively, unsatisfactory professional conduct by failing to comply with the "order" of the court dated 7 June 2017 that he pay $16,906.36 to Mr Wells. The particulars given of this alleged conduct have been summarised at [22]-[27] above.

[10]

Tribunal's Stage 1 reasons

Ground 1: the Tribunal found that there was no proper or reasonable basis for Mr de Robillard to make the allegations that the opposing solicitor, Mr Wells, was engaging in serious misconduct, specifically that Mr Wells "aided and abetted" his client to breach the Corporations Act and "overstepped his functions as a lawyer", and that the material available provided no reasonable justification to initiate the 2016 proceedings: at S1[180]-[181]. The Tribunal was satisfied that Mr de Robillard knew of the seriousness of the allegations he was making in the documents which he signed and settled: at S1[167], [182]. The Tribunal noted that the inevitable consequence of Mr de Robillard's accusations was that Mr Wells would have to cease acting for his client, and found that a barrister who had acted with even a basic level of care would have understood the prejudice that would be caused by his actions: at S1[221]. The Tribunal found that the conduct was considered and not on the spur of the moment, given that Mr de Robillard had been alerted to the shortcomings of the allegations and pleadings that he had authored and was persistent with the claims: at [289].
The Tribunal found that Mr de Robillard contravened rr 60(a), 61(a), 64(a) and 65(a) of the Barristers Rules: at S1[233]. The Tribunal further found that Mr de Robillard's conduct breached r 8(c) of the Barristers Rules by exercising his advocates' immunity in breach of the Barristers Rules in the ways identified by the Bar Council which had a very real probability of diminishing public confidence in the legal profession or bringing it into disrepute: at S1[242]. The Tribunal found that this amounted to serious misconduct: at S1[292].
Ground 2: the Tribunal found that whilst Mr de Robillard was made bankrupt on 17 August 2017, he placed no acceptable evidence before the Tribunal demonstrating that he had no capacity to pay a costs order made against him: at S1[278]. The Tribunal found that his refusal to pay the personal costs order, without informing Mr Wells of any circumstances that rendered him unable to pay the costs, put Mr Wells to the further costs of attempting to enforce payment: at S1[273]. The Tribunal found that from the time the costs order was made until his bankruptcy, Mr de Robillard never accepted that he had an obligation to pay the sum ordered, an order which he did not oppose at the time it was made; rather, he sought to "challenge" (that is, dispute) his obligations: at S1[274]. The Tribunal further found that the fact that the order was ultimately paid by a third party did not exculpate Mr de Robillard because he contravened the orders of the Court by never attempting to pay and not paying the debt due: at S1[278]. The Tribunal found that this conduct contravened r 13(1)(q)(i) of the General Rules.
The Tribunal concluded that Mr de Robillard's conduct was "of the most serious kind" and that the conduct constituting Ground 1 amounted to professional misconduct (at S1[287]), whilst the conduct constituting Ground 2 amounted to unsatisfactory professional conduct (at S1[286]).

[11]

Tribunal's Stage 2 reasons

At the commencement of its Stage 2 reasons, the Tribunal addressed an issue agitated at the Stage 1 hearing which the Tribunal acknowledged it had not provided its reasons, namely, whether the Bar Council is capable of being a party to the proceedings. The Tribunal stated that it had reached the conclusion that the Bar Council is a legal entity and is able to be a party to the proceedings and gave reasons for that conclusion: at S2[3]-[15].
The Tribunal next addressed and gave reasons for rejecting several recusal applications made by Mr de Robillard (at S2[21]-[226]). The Tribunal then summarised the evidence adduced by the Bar Council, including prior adverse findings against Mr de Robillard (at S2[237]), the documentary evidence tendered by Mr de Robillard (at S2[295]-[314]), and the parties' submissions (at S2[315]-[352]). With respect to the prior adverse findings relating to complaints made between August 2016 and January 2019, Mr de Robillard had received five reprimands, one caution and was required to provide an undertaking in relation to the complaint made by the Bar Association that he had been representing he was a barrister in January 2019 (S2[238]). The Tribunal noted (at S2[236]) that three complaints against Mr de Robillard in 2002, the subject of proceedings commenced by the Bar Council in the former Administrative Appeals Tribunal in 2003, had been brought out of time, and leave to commence out of time was refused: New South Wales Bar Association v de Robillard [2004] NSWADT 45.
No complaint is made in relation to the Tribunal's statement of legal principles as to its jurisdiction in disciplinary proceedings at S2[356]-[361], which included reference to Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 373; [2021] NSWCA 339 at [164], [169] and [171].
The Tribunal then addressed the question of Mr de Robillard's character and fitness to practise, based solely on the finding of professional misconduct and stated its findings and conclusions: at S2[375]-[386]. Relevantly, the Tribunal noted that (i) Mr de Robillard had not presented any character evidence or evidence from medical witnesses (at S2[386(3) and (8)]), and (ii) the impugned conduct the subject of the finding of professional misconduct was not an isolated instance of unprofessional conduct having regard to Mr de Robillard's disciplinary history (at S2[386(10)-(11)]). Rather, the Tribunal found (at S2[386(13)]) that Mr de Robillard: … has not accepted or appreciated that being a lawyer on the Roll carries with it specific obligations to fully and properly recognise the role of the regulatory body in respect of overseeing the professional standards required of practitioners.
The Tribunal said it was "very concerning" that Mr de Robillard did not seek to explain the circumstances giving rise to the previous findings of unsatisfactory professional misconduct in his disciplinary history, but rather sought to shift the blame by way of unfounded accusations against Mr Wells, senior counsel for the Bar Council and the Bar Council's previous chief executive director and past Presidents: at S2[386(15), (17), (19), (30)].
The Tribunal found that Mr de Robillard had not learned from past experience, and that previous disciplinary orders made by the Bar Council had little deterrent effect on him, including in relation to his continued allegations of misconduct against others: at S2[386(18), (19)]. The Tribunal considered that Mr de Robillard's disciplinary history weighed significantly in favour of an order removing him from the roll: at [386(20)].
The Tribunal was not able to identify any mitigating action by Mr de Robillard in relation to the impugned conduct, noting "if anything, the reverse is the case": at S2[386(28)]. The Tribunal accepted that Mr de Robillard's reputation had been damaged by the reporting of the disciplinary proceedings in the media and noted its expectation that he would suffer further reputational damage if the Tribunal recommended his removal from the roll: at S2[386(24)].
The Tribunal found that a serious "Protective Order" outcome was necessary to have the required deterrent impact and denunciation of Mr de Robillard's conduct: at S2[386(26)].
Although Mr de Robillard acknowledged in his final submissions "some" wrongdoing on his part, the Tribunal found that he did not accept full responsibility. After noting that Mr de Robillard was convinced that he was the subject of a personal victimisation by a former executive director of the Bar Association and some other members of the Bar Council over a number of years, the Tribunal observed that Mr de Robillard attributed this victimisation as being consequent to his involvement with the government of Vanuatu and his having to be rescued from that place following his incarceration during a political upheaval or event in that country: at S2[386(30)].
The Tribunal found that Mr de Robillard had not demonstrated that he understood, or accepted, the limits which should not be crossed as a practitioner, nor would abide by them if he was permitted to continue as a barrister or practising lawyer: at S2[386(32)].
The Tribunal found that Mr de Robillard was unfit to practise, and probably permanently so (at S2[386(34)]) and concluded that no lesser sanction than removal from the roll would meet the public interest (at S2[386(39)]).
In making that recommendation, the Tribunal summarised its reasons at S2[387]: We propose to make the recommendation sought by the Council. Our determination has been based upon our consideration of the guidelines as above set out and our application of same to the findings we have made, and the circumstances of this case. We have determined the Respondent is not, at this time, fit to practise as a barrister. We have determined the Respondent is probably permanently unfit to practise. We have determined it is not possible to impose a less impactive protection order upon the Respondent and be satisfied he will henceforth practise safely and not bring himself to the notice of the Bar Council for unsatisfactory professional conduct or professional misconduct. Regretfully, mindful of the impact upon the Respondent's reputation and ability to financially support himself, we are of the view that only the removal from the Roll as a barrister will protect the public and will also serve as a sufficient deterrent to other lawyers on the Roll of Solicitors and Barristers of the consequence of conduct as established against the Respondent. We also hold the view that it is a necessary outcome in order to uphold the confidence and respect of the public in the legal profession as a whole.
On 2 August 2023 the Tribunal made an order for costs against Mr de Robillard: Council of the New South Wales Bar Association v de Robillard (No 2) (Costs) [2023] NSWCATOD 116.

[13]

Apprehended bias

The issue of bias (and by extension procedural unfairness) should be addressed first. This is because if either ground is established, the disciplinary proceedings would be remitted to the Tribunal for rehearing: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9] (Basten JA).
The rule against apprehended bias is one aspect of the obligation of procedural fairness which applies generally to tribunals: CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 at [55] (Nettle and Gordon JJ). Here, the obligation of procedural fairness expressly applies to the Tribunal by reason of s 301(2) of the Application Act.
The test for apprehended bias is objective. The test does not require an assessment of the state of mind of the decision-maker, as is necessary on an inquiry about actual bias: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. The question is "whether a fair-minded lay observer might reasonably consider that a [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide" (emphasis added): Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson at [31].
The application of this test requires two steps: first, the identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits: Ebner at [8], Michael Wilson at [32]-[33]. Only then can the reasonableness of the asserted apprehension of bias be assessed. This is sometimes referred to as the third step: Ebner at [8]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]; CNY17 at [21] (Kiefel CJ and Gageler J).
In applying the "double-might" test in a matter involving a tribunal, rather than a court, it has been said that the decision and reasons the tribunal has given for its decision is part of the "totality of circumstances" which a fair-minded lay observer may take into account: CNY17 at [20] (Kiefel CJ and Gageler J). Similarly, Nettle and Gordon JJ drew attention in CNY17 at [58] to the legal, statutory and factual contexts in which the decision is made by a tribunal and said (citations omitted): … it is necessary to consider … the legal, statutory and factual contexts in which the decision is made". It is also necessary to consider "what is involved in making the decision and the identity of the decision-maker". This draws attention to the fact that the test must recognise "differences between court proceedings and other kinds of decision-making". The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has "a broad knowledge of the material objective facts … as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker].
A finding of apprehended bias is not to be reached lightly: CNY17 at [56] (Nettle and Gordon JJ), citing Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371; [1986] HCA 39.
In this Court, Mr de Robillard relied upon two matters as giving rise to the appearance of bias by the Tribunal: (i) extraneous material, and (ii) comments of Judge Cole.

[14]

Extraneous material

It is said that that the Tribunal's impartiality was affected by extraneous information before the Tribunal, which was irrelevant and prejudicial, comprising (i) par [4] of the affidavit of Mr Gregory Tolhurst which annexed Mr de Robillard's disciplinary history, and (ii) par [3] of the amended application which referred to conditions imposed on Mr de Robillard's practising certificate "regarding compliance with tax obligations".
It is said that this extraneous material might conceivably be apprehended by the fair-minded lay observer to have compromised the independence or impartiality of the Tribunal in the conduct of the Stage 1 hearing. Reference was made to CNY17 at [16] (Kiefel CJ and Gageler J) and [53]-[55] (Nettle and Gordon JJ), where both joint judgments referred to the statement by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74; [1994] HCA 30 describing the category of cases involving disqualification by extraneous information as consisting of cases where "knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias".
In addressing this submission, it needs to be kept in mind that the fair-minded lay observer who is "neither complacent nor unduly sensitive or suspicious" (CNY17 at [19], citing Johnson v Johnson (2000) 201 CLR 337; [2000] HCA 42 at [53]) would recognise from the relevant statutory context that (i) in deciding a question of professional misconduct or unsatisfactory professional conduct, the Tribunal is bound to observe the rules of evidence in proceedings (Sch 5, cl 20, Tribunal Act), and (ii) although the Tribunal is not a court, when conducting a disciplinary hearing involving a legal practitioner under the Uniform Law, the Tribunal must be constituted by Division Members as the President determines as being appropriate for a particular case, relevantly, in this case, a presiding member with a judicial qualification, a senior member with a professional qualification of a barrister, and one general member: Sch 5, cl 18, Tribunal Act. Both of these features of the relevant statutory context are inconsistent with the assertion that Tribunal had regard to extraneous material at the Stage 1 hearing.
The fair-minded lay observer would also recognise two further matters. First, par [4] of the Tolhurst affidavit was not in evidence before the Tribunal, as it was not read by the Bar Council at the Stage 1 hearing, nor was the amended application in evidence before the Tribunal. Second, the Tribunal made no reference in its Stage 1 reasons to Mr de Robillard's disciplinary history, or the conditions attaching to his practising certificate. Again, that is consistent with the Tribunal ignoring that material.
The contention that the fair-minded lay observer with knowledge of the relevant statutory context might reasonably apprehend, in the totality of the circumstances, including the Stage 1 decision and reasons the Tribunal has given for its decision, that a departure from impartial decision making might have occurred because of extraneous material which was not in evidence before the Tribunal at the Stage 1 hearing is rejected.
Waiver: the Bar Council says that, in any event, the failure by Mr de Robillard to object constituted waiver of any objection to the Tribunal continuing to hear and determine the matter: Vakauta v Kelly (1989) 167 CLR 568 at 572; [1989] HCA 44 (Brennan, Deane and Gaudron JJ). The question of waiver can be dealt with briefly, given that it is not dispositive.
In Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [43], Gleeson CJ, Heydon and Crennan JJ said: An objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and … if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result.
At the Stage 1 hearing, Mr de Robillard was represented by senior counsel. No objection was taken by his counsel that the members of the Tribunal should recuse themselves on the grounds of knowledge of material contained in documents before the Tribunal although not in evidence, specifically, par [4] of the Tolhurst affidavit and par [3] of the amended application. Mr de Robillard is bound by the conduct of his counsel. If it were necessary to decide, it should be concluded that Mr de Robillard waived any right he had to make an objection of apprehended bias on the ground of knowledge of material which was not in evidence before the Tribunal.

[17]

Standing of Bar Council in disciplinary proceedings

Mr de Robillard contended in the Tribunal that the application for disciplinary findings should be "struck out" because "the Bar Council has no independent legal personality which could make it a competent party in curial proceedings". The Tribunal summarised the parties' competing submissions with respect to the standing issue at S1[102]-[115] but did not expressly determine that issue in its Stage 1 reasons. The Tribunal acknowledged this omission in its Stage 2 reasons, where it said that it accepted as correct the Bar Council's analysis set out in its Stage 1 reasons at S1[104], which enabled it to hear the application brought by the Bar Council: at S2[10]-[11], [14]. The Tribunal said at S2[11]: The Bar Council in our view did have the "independent legal personality" to bring the proceedings. That "personality" is encapsulated by ss 11, 28(2) and 29 of the Legal Professional Uniform Law Application Act 2014 (NSW) which recognises that the functions exercisable by the New South Wales Legal Services Commissioner may be exercised by the body described as the Bar Council, which is defined in s 3 as the Council of the Bar Association, which is in turn defined as the New South Wales Bar Association. The Bar Council also tendered the delegation authority. It was contained in the document titled "Instrument of Delegation and Direction". By that delegation, the Bar Council has the right or authority to commence the proceeding currently under consideration and to do so in its own name. (Emphasis added)
The reference to the "delegation authority" in the above passage from the Tribunal's reasons, is a reference to the delegation of the NSW Commissioner's Ch 5 functions to the Bar Council dated 9 October 2019, which was in evidence before the Tribunal (the 2019 delegation).
Mr de Robillard contended that the Bar Council does not have "legal capacity" and could not bring the proceedings in the Tribunal or defend any appeal therefrom (grounds 1 and 2). In oral argument, he asked rhetorically "How can you be a party when you don't exist?", but later resiled from that position and accepted "as a general proposition" that the Uniform Law and the Application Act give the Bar Council standing to bring disciplinary proceedings against barristers.
Mr de Robillard submitted that in this case there is a "temporal" issue because the members of the Bar Council changed between the time when the complaint was referred by the NSW Commissioner to the Bar Council and when the Bar Council resolved to institute disciplinary proceedings.
The Bar Council submitted that the regime established by the Uniform Law and the Application Act grants the Bar Council distinct legal standing to commence disciplinary proceedings in the Tribunal and to defend an appeal from orders of the Tribunal. For the following reasons, the Bar Council's submission should be accepted.
It is not in dispute, as the Tribunal recorded (at S1[104]), that the relationship between the Bar Council and the NSW Bar Association is now provided for by the Constitution of the NSW Bar Association, which states: 14.1 Manage general business of the Bar Association 14.1.1 The business and affairs of the Bar Association shall be managed and administered by the Bar Council. 14.1.2 The Bar Council may exercise all the powers of the Bar Association and: (a) do all the acts that may be done on behalf of the Bar Association; and (b) exercise all the powers that may be exercised by the Bar Association which are not required to be exercised by the Bar Association in General Meeting, by the Corporations Act or by this Constitution. … … 14.2 Other powers. The Bar Council may exercise such other powers as may be conferred upon it by or under any legislative instrument.

[18]

Relationship between the Bar Council and the NSW Bar Association

The different status and standing of the NSW Bar Association and the Bar Council was discussed by the Court of Appeal in Wentworth v NSW Bar Association [1991] NSWCA 281. That case involved admission proceedings. The applicable legislation, s 51(b) of the Legal Profession Act 1987 (NSW) (the 1987 Act), gave the Bar Council a right to appear and be heard by the Supreme Court "in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers", which included disciplinary and admission proceedings. Speaking of the legal status of the Bar Council in the context of the right of appearance given by s 51 of the 1987 Act, Mahoney JA observed (at 3-4): The Bar Council does not, as such, have a corporate existence. It is the term applied in the Articles of Association of the Bar Association to the body or group of persons elected by the members of the Association to conduct the business of the Association. The Bar Council is, in relevant respects, analogous to a board of directors. In one sense the Articles of Association may be seen as creating offices and the aggregate of those offices is the Bar Council. It is, it may be thought, somewhat curious that functions of this kind have been given to the Bar Council as such. And it is arguable that, insofar as the Bar Council acts in relation to matters of this kind, it acts, not on its own behalf or even as an agent of the Association, but as the Association itself: see O'Brien v Dawson (1942) 66 CLR 18 at 32. (O'Brien v Dawson (1942) 66 CLR 18 at 32; [1942] HCA 8 is authority for the proposition that as a company "'cannot act in its own person for it has no person … it must of necessity act by directors, managers or other agents".)
Mahoney JA (Clarke JA and Hope AJA relevantly agreeing) held that (i) s 51 of the 1987 Act was not intended to exclude the capacity of the Bar Association to appear because the Bar Association had so appeared in such matters for 50 years or more and if that were the intention of the legislature "it would … have so provided in terms", and (ii) the right of appearance by the Bar Council contained in s 51 was not limited to making submissions and included the right to adduce evidence.
The High Court dismissed an appeal by Ms Wentworth: Wentworth v NSW Bar Association (1992) 176 CLR 239; [1992] HCA 24. The joint judgment of Deane, Dawson, Toohey and Gaudron JJ observed at 248 that the NSW Bar Association is a company limited by guarantee, that its Articles of Association provide for "a Council of the Association" and for its business to "be managed by the elected members of [that] Council", and it is that Council constituted by its elected member, which functions as the governing body of the Bar Association, and which has been referred to as the "Bar Council". The joint judgment said that that whilst the Bar Council has no separate legal identity, "… it has specific statutory powers and functions in relation to barristers and candidates for admission to the Bar".
The joint judgment continued at 251-252: … disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. … Disciplinary proceedings and admission proceedings are "sui generis". Disciplinary proceedings have been described as proceedings concerned with the protection of the public. And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings.
Brennan J agreed that the appeal should be dismissed. After referring at 246-247 to differences between the Bar Council and the Bar Association, including the changing membership of the Bar Council and the potential difficulties of enforcing an order for costs against individual members of the Bar Council, Brennan J said: These factors do not diminish the importance of the Bar Council's statutory right to appear in admission and disciplinary proceedings. Rather, they indicate that the Bar Council, which has the powers of a Board of Directors of the Association, is in a position to determine whether the more appropriate course in a particular case is to exercise its right to appear or to seek leave for the Bar Association to appear.
Thus, Wentworth recognised that whilst the Bar Council has no separate legal identity, it has specific statutory functions and powers in relation to admission and disciplinary proceedings, and that the right of appearance by the Bar Council contained in the 1987 Act with respect to disciplinary and admission proceedings was not limited to making submissions and included the right to adduce evidence.
The legislative regime following the 1987 Act continued to recognise the standing of the Bar Council with respect to disciplinary proceedings against a barrister. By s 696, the Legal Profession Act 2004 (NSW) (the 2004 Act) provided for the Bar Council's standing before the Supreme Court in the exercise of the Supreme Court's disciplinary functions and also to institute prosecutions and other proceedings for the breach of any of the provisions of the 2004 Act, the regulations, or the Legal Profession Rules.
In Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254, Edmonds J found that the Bar Council had standing under the 2004 Act, notwithstanding it is not a separate legal entity from the Bar Association, to obtain a costs order against a barrister in the Tribunal, then known as the Administrative Decisions Tribunal: at [25]. The costs order had been made in favour of the Bar Council under s 566(1) of the 2004 Act, which was in similar terms to s 303(1) of the Uniform Law.
His Honour found at [26] that the Bar Council had standing to commence and maintain proceedings in its own name seeking declaratory relief in the Federal Court without a description of the identity of the constituent members of the Bar Council because it had standing as a creditor under s 43(1) of the Bankruptcy Act 1966 (Cth). In reaching that conclusion, his Honour drew an analogy at [27] with the rules of court permitting proceedings to be brought in the name of a partnership, rather than the individual partners (Order 42, r 2 of the Federal Court Rules, now r 9.41 of the Federal Court Rules): … there seems no reason why an action by the constituent members of the Bar Council, claiming as such, may not be brought in the name of Bar Council, particularly where the debt arises out of the performance by the Bar Council of the statutory functions and duties invested in it by the [2004 Act].

[19]

Standing of the Bar Council in the Tribunal

The functions of the NSW Commissioner under Ch 5 of the Uniform Law include receiving complaints made by any person or body and also initiating a complaint containing a disciplinary matter only (s 266), conducting a preliminary assessment of a complaint (s 276), investigating complaints (s 282), and initiating and prosecuting disciplinary proceedings against a respondent-lawyer in the designated tribunal (s 300).
The "designated tribunal" in this jurisdiction for the purposes of Ch 5, Pt 5.4, Div 3 of the Uniform Law deals with the determination of disciplinary applications against a lawyer. The "designated tribunal" in this jurisdiction for the purposes of Ch 5, Pt 5.4, Div 3 of the Uniform Law is the Tribunal: Application Act, s 11(3) (Table 2). By Sch 5, cl 4(1) of the Tribunal Act the functions of the Tribunal in relation to the Uniform Law are allocated to the Occupational Division of the Tribunal.
The provisions of the Uniform Law and the Application Act operate to appoint certain roles and responsibilities to the "designated local regulatory authority". That term has the same meaning in the Application Act as it has in the Uniform Law: Application Act, s 3(2). The Uniform Law, s 6 defines "local regulatory authority" in the context of a reference to "a local regulatory authority" in any provision of the Uniform Law to mean any "designated local regulatory authority", and the expression "designated local regulatory authority" is defined to mean "a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this law in which the term is used". Section 11(1) of the Application Act is such a provision. It provides: A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of the provisions of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body.
Relevantly, in Column 2 of Table 1 the "designated local regulatory authority" for Ch 5 of the Uniform Law is the "NSW Commissioner", being the person holding office or acting as Legal Services Commissioner under Div 2 of Pt 3 of the Application Act: Application Act, s 3.
Taken together, the Uniform Law and the Application Act permit (i) the delegation by the NSW Commissioner as the "designated local regulatory authority" of specified functions of the Commissioner, including Ch 5 functions, and (ii) the exercise of those delegated functions by the Bar Council with respect to barristers.
By s 406 of The Uniform Law: 406 Delegation of functions of local regulatory authorities (1) A local regulatory authority may, by instrument in writing, delegate any of its functions under this Law to an entity prescribed, or an entity of a class prescribed, by jurisdictional legislation. (2) Subsection (1) does not apply to - (a) the power to delegate a function; or (b) the power (under section 411) to take over responsibility for a matter from a delegate of the local regulatory authority.
The reference in s 406 to "[a] local regulatory authority" means "any designated local regulatory authority" (see [103]-[104] above), and the reference in this jurisdiction to the "designated local regulatory authority" for Ch 5 of the Uniform Law is the NSW Commissioner: Application Act, s 11(1) (Table 1).
By s 28(2) of the Application Act: 28 Delegation of functions of NSW Commissioner … (2) The NSW Commissioner may delegate the following functions to the Bar Council or the Law Society Council - … (b) any of the NSW Commissioner's Chapter 5 functions. Note - Under the Legal Profession Uniform Law (NSW), Chapter 5 functions means - (a) functions under Chapter 5, or (b) functions under another provision of that Law relating to Chapter 5, or (c) functions under the Uniform Rules relating to Chapter 5. Note - Section 406 of the Legal Profession Uniform Law (NSW) provides that a local regulatory authority may delegate its functions under that Law to an entity prescribed by jurisdictional legislation. The local regulations may also prescribe delegates or classes of delegates of local regulatory authorities (see section 166).
By s 29 of the Application Act, in addition to its other functions, the Bar Council may exercise functions conferred or imposed on it or the Bar Association by (a) the Uniform Law, (b) the Application Act, or (c) as delegate of the NSW Commissioner.
The Uniform Law and the Application Act apply the same facilitation to the Bar Council, although not a legal entity separate from the Bar Association, to institute and prosecute disciplinary proceedings for convenience in the name of the Bar Council, as applies under procedural rules of court in various jurisdictions to actions by or against a partnership, which although not a legal entity, for convenience the firm name may be used for the sake of suing and being sued: see, for example, r 9.41 of the Federal Court Rules 2011 (Cth); and in England where proceedings also may be commenced in the name of or against a partnership, see Sadler v Whiteman [2010] 1 KB 868 at 889 (Fletcher Moulton LJ), and more recently: The Connaught Income Fund, Series I (in liquidation) v Capita Financial Managers Ltd [2014] EWHC 3619 (Comm). By contrast this procedure is not available in this State with respect to proceeding by or against a partnership: see UCPR, r 7.1.
That the Bar Council has standing to bring disciplinary proceedings in the Tribunal as the delegate of the NSW Commissioner, is consistent with other provisions in the legislative scheme for the disciplining of barristers, which also recognise the standing of the Bar Council to appear before and become a party to disciplinary proceedings in the Tribunal. Schedule 5, cl 21(1)(c) of the Tribunal Act, relevantly, provides: 21 Parties (1) The following persons are entitled to appear at a hearing conducted by the Tribunal for the exercise of a Division function for the purposes of the Legal Profession Uniform Law (NSW) - … (b) in the case of a complaint - the respondent lawyer, (c) in the case of a complaint against a barrister - the Council of the Bar Association, (d) in the case of a complaint against a solicitor - the Council of the Law Society, (e) in the case of a complaint where the respondent lawyer is neither a barrister nor a solicitor - either or both of the Councils, (f) the Commissioner, … (5) Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the proceedings concerned.
The Bar Council can also obtain a costs order against a legal practitioner where a finding is made by the designated tribunal that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, unless the designated tribunal is satisfied that exceptional circumstances exist: Uniform Law, s 303(1). A similar provision is found in Sch 5, cl 23(1) of the Tribunal Act, which specifically refers to making a costs order in favour of "a Council" (which includes the Bar Council). The Bar Council can also obtain funding from the Public Purpose Fund for payment of its costs and expenses, relevantly, in exercising Ch 5 functions, and in relation to any proceedings in or on appeal from the Supreme Court: Application Act, s 53(1)(k) and (l).
At the time the Bar Council commenced the disciplinary proceedings against Mr de Robillard in November 2020, the NSW Commissioner had delegated the Ch 5 functions to the Bar Council by the 2019 delegation. There is no challenge to the validity of the 2019 delegation. Contrary to Mr de Robillard's contentions, the Bar Council has standing conferred by statute to institute and prosecute disciplinary proceedings in the Tribunal, as the delegate of the NSW Commissioner pursuant to the 2019 delegation.

[22]

Delegation point

As of 19 July 2017, the date of referral by the NSW Commissioner of the Wells complaint to the Bar Association, the applicable delegation by the NSW Commissioner of the Ch 5 functions to the Bar Council and the Law Society respectively was dated 18 June 2015 (the 2015 delegation). Although no point was raised in the Tribunal, Mr de Robillard submitted that the referral of the Wells complaint to the Bar Council was void and of no legal effect because of deficiencies in the 2015 delegation, as subsequently identified by the Principal Member of the Occupational Division in a decision made on 25 June 2019: Council of the Law Society of NSW v DXW [2019] NSWCATOD 101.
In DXW a complaint against a solicitor referred to as DXW was received by the Law Society of New South Wales on 22 September 2016, and on 23 September 2016 the Professional Standards Department of the Law Society sent a list detailing complaints (including the complaint against DXW) to the NSW Commissioner and requested the Commissioner to "activate [a] reference number and advise [the Professional Standards Department of the Law Society] in due course": DXW at [22]-[26]. The operative terms of the 2015 delegation provided for the delegation by the NSW Commissioner of "a disciplinary matter which I have decided not to deal with or continue to deal with, which I refer to the relevant Professional Association for assessment, investigation and determination under Chapter 5 …" (see DXW at [18]). The "relevant Professional Association" was defined in the 2015 delegation to mean the Bar Association or the Law Society. The Principal Member found that the 2015 delegation was confined to a complaint which "has already been made to the Commissioner or made by the Commissioner" (at [48]), and therefore there was no complaint to form the basis of a disciplinary matter, and no basis to initiate proceedings in the Tribunal (at [50]).
The Bar Council accepted in oral argument that the effect of DXW was that the Bar Council, like the Law Society, was unable to act on the delegation by the NSW Commissioner. The precise reasons why that was so was not explained in submissions; it seems to be that the NSW Commissioner had referred the Wells complaint to the Bar Association rather than the Bar Council, and there was an issue as to the power of the Bar Association to sub-delegate a referred complaint to the Bar Council.
In any event, the Bar Council says that the delegation point is answered by the amendment to Sch 9 (Savings, Transitional and Other Provisions) of the Application Act introduced by the Justice Legislation Amendment Act (No 2) 2019 (NSW), with effect from 22 November 2019, which added cl 23 of Sch 9, the full terms of which are set out in Sch A to these reasons. The Explanatory Note to the amendment stated: The proposed amendment validates decisions, determinations and other actions taken under the authority of a delegation purportedly given in 2015 to the New South Wales Bar Association and Law Society of New South Wales by the Legal Services Commissioner. In particular, the proposed amendment seeks to address certain issues identified by the Civil and Administrative Tribunal in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101.
The amendment provides, in terms, that the 2015 delegation is taken to be, and always to have been, validly made under section 406 of the Uniform Law, and validates any decision, determination, or other action of the Bar Council as an authorised sub-delegate of the Bar Association during the relevant period of 18 June 2015 to 22 November 2019, that would have been valid if sub-cll (1)-(3) of cl 23 had been in force at the time: cl 23(4)(a).
The effect of the amendment is to validate the referral by the NSW Commissioner of complaints to the Bar Council relying on the 2015 delegation, including the Wells complaint. Mr de Robillard did not submit to the contrary.

[23]

Minutes of Bar Council's 14 May 2020 meeting

Although there is no ground challenging the Tribunal's finding at S1[160]: Although there was some minor dispute by the respondent to the facts set out in the Introduction to the grounds in the Amended Application for disciplinary findings and orders filed by the Council, we are satisfied that on 14 May 2020 the Council resolved that both grounds of Mr Wells' complaint be the subject of proceedings before the Tribunal pursuant to section 300 of the Uniform Law, as asserted in paragraph 10 of the Introduction, it is said that the Tribunal could not be satisfied by the evidence of the minutes of the proceedings of the Bar Council held on 14 May 2020 at 4:30 pm via "Zoom" conference, that the Bar Council had resolved pursuant to s 300(1) of the Uniform Law to initiate and prosecute the disciplinary proceedings in the Tribunal.
It is said that the minutes of 14 May 2020 are not "proper" minutes because (i) the minutes do not identify the persons present at the meeting, and (ii) there is no evidence that the minutes of 14 May 2020 were subsequently approved. The challenge in this Court to the authenticity of the 14 May 2020 minutes must confront the following matters.
First, there is a partial admission by Mr de Robillard in his reply to the amended application. As recorded at S1[3] and [8], the amended application included: 10 On 19 July 2017 Mr Wells made a complaint to the Office of the Legal Services Commissioner. The complaint was referred to the Council of the NSW Bar Association (Bar Council). On 14 May 2020 Bar Council resolved that both grounds of Mr Wells' complaint be the subject of proceedings before the New South Wales Civil and Administrative Tribunal (the Tribunal) pursuant to s.300 of the Legal Profession Uniform Law (NSW) (the Uniform Law), to which Mr de Robillard's response in his reply filed on 14 September 2021 was: 11 As to paragraph 10 - this is partly admitted. The lengthy delay between 2017 and 2020 is unexplained.
Second, the complaints that the minutes of 14 May 2020 do not include the names of the persons attending the Bar Council meeting via Zoom conference and were not approved such as by signing by the Chair of the meeting or the Chair of the next meeting of the Bar Council, were matters which could have been taken up in cross-examination of Mr Tolhurst at the Stage 1 hearing but were not. Mr Tolhurst gave unchallenged evidence in par [36] of his affidavit that: Bar Council considered the Report dated 22 April 2020 at a meeting on 14 May 2020 (held via Zoom) and resolved pursuant to s. 300 of the LPUL to initiate and prosecute proceedings in the NSW Civil and Administrative Tribunal. Exhibited at page 384 of "GJT1" is a copy of the relevant Minutes of Proceedings of Bar Council on 14 May 2020.
Third, consistent with the partial admission by Mr de Robillard in his reply, and the absence of cross-examination of Mr Tolhurst, no submission was made by counsel for Mr de Robillard at the Stage 1 hearing that the 14 May minutes were inaccurate or lacked authenticity. There was no error by the Tribunal in finding that the Bar Council had resolved on 14 May 2020 to institute the disciplinary application against Mr de Robillard.

[24]

Form of the disciplinary application

Relevantly, the application filed on 10 November 2020 was in the prescribed form and correctly identified the nature of the application under the heading "Application", being an application for a disciplinary finding and order under the "Legal Profession Uniform Law (NSW)".
The Bar Council accepted that the application did not identify the specific provision of the Uniform Law pursuant to which the application was made. However, that omission is of no consequence because the prescribed form did not require identification of the specific provision of the Uniform Law upon which the application was based. In any event, there could be no doubt that the application was made under s 300 of the Uniform Law; this was expressly stated in par [10] of the application.
It is said that the application as filed was invalid because the relief sought in order [1] was not in the precise terms of s 302(1)(f) of the Uniform Law. That is correct, but this was later acknowledged and corrected by the Bar Council in the amended application filed on 10 September 2021, shortly prior to the commencement of the Stage 1 hearing.
Mr de Robillard complained that this amendment was done "surreptitiously without telling me", however, he withdrew this submission when queried by the Court. He asserted that he was not aware of the amendment to order [1], because it was not drawn to his attention in the covering email which enclosed the amended application. That submission was not supported by reference to the materials before this Court, nor was there any application by Mr de Robillard to adduce further evidence on appeal under s 75A of the Supreme Court Act.
The assertion by Mr de Robillard that he was not aware of the amendment is difficult to reconcile with several matters. First, the amendment was highlighted in the usual manner by underlining, as was the amendment to par [13(k)] of the application, which Mr de Robillard accepted that he did read. Second, Mr de Robillard attended the Stage 1 hearing on 13 September 2021 (via AVL from his counsel's chambers) when in opening senior counsel for the Bar Council expressly referred to the filing of an amended application and explained that the amended relief was sought in order [1] because the application had not "quite captured the legislation asking [for] a recommendation, we don't need that order today but that's the appropriate order". Third, on the following day, 14 September 2021, Mr de Robillard signed a Reply to the amended application which said in par [1] that the (amended) orders sought by the Bar Council were opposed.
But even assuming that Mr de Robillard was unaware of an amendment that would not affect the validity of the amended application, or the relief sought by the Bar Council in circumstances where counsel for Mr de Robillard did not object to the filing of the amended application or the terms of the relief sought in order [1] as amended. As a general rule, a party is bound by the conduct of his or her counsel, and counsel has a wide discretion as to the manner in which proceedings are conducted: R v Birks (1990) 19 NSWLR 677 at 683G (Gleeson CJ). This is such a case.

[25]

Timing of Bar Council's decision

Timing: it is said that there is a "temporal issue" in that the constituent members of the Bar Council changed from time to time and were not the same at either the time of the referral of the Wells complaint by the NSW Commissioner on 19 July 2017 or the date of the draft PCC report in July 2019 or the final PCC report in April 2020 or the date of the Bar Council's decision on 14 May 2020 to institute disciplinary proceedings. The submission continued that "the legislature intended that the cohort known as members of a Bar Council would take personal responsibility for checking the nature of the application and the evidence related to the application, and that it would be started within a short span, within six months or 28 days". There is no substance in these submissions.
First, it is not in dispute that the constituent members of the Bar Council changed from time to time. The reference to the "Bar Council" in the Application Act means the Council of the Bar Association, being the NSW Bar Association: Application Act, s 3. This is to be understood as denoting the shifting body of constituent members of the Bar Council from time to time. There is no requirement in the Application Act that the constituent members of the Bar Council at the time of referral of a complaint by the NSW Commissioner to the Bar Council must be the same as the members of the Bar Council at the time of its decision to initiate disciplinary proceedings in the Tribunal, or indeed at the time of lodging the disciplinary application in the Tribunal.
Second, s 137(1) of the Application Act says that a disciplinary application may be made to the Tribunal at any time within six months after the NSW Commissioner decides to initiate proceedings in the Tribunal with respect to the alleged conduct. In this case, the Bar Council as the delegate of the NSW Commissioner filed the application on 10 November 2020, being within six months of the Bar Council's decision on 14 May 2020.
Insofar as Mr de Robillard complains about alleged conduct of members of the "previous" Bar Council in their dealings with Mr de Robillard (grounds 13 and 14), these can be put aside. Such complaints are not relevant to the validity of the application filed in the Tribunal.
Delay: the delay of nearly three years in the Bar Council's assessment, investigation, and determination of the Wells complaint, is regrettable. Senior counsel for the Bar Council acknowledged that the material before this Court did not explain any particular step in the delay, other than (i) the time from December 2017 to March 2018 in seeking responses from Mr de Robillard to the Wells' complaint and the s 371 notice, (ii) the time from July 2019 to November 2019 when progress on all matters relying on the 2015 delegation was suspended until the amendment to the Application Act, effective on 22 November 2019, and (iii) the time from February 2020 to April 2020 seeking a response from Mr de Robillard to the draft PCC report sent to him on 18 February 2020, which report was finalised by the PCC in late April 2020.
Nevertheless, the delay by the Bar Council in dealing with the Wells complaint does not impact the validity of the application filed in the Tribunal. However, the delay is relevant to the exercise of the Court's discretion concerning the application for removal.

[26]

Challenge to finding of professional misconduct

The grounds challenging the finding of professional misconduct are general in nature. Together they amount to a claim that Mr de Robillard did not breach the specified provisions of the Barristers Rules, because Mr de Robillard was justified in making allegations against Mr Wells in 2016 proceedings.
Addressing Ground 1 of the application, the Tribunal summarised the case advanced against Mr de Robillard and his essential response at S1[166]-[167] and [180]: [166] Sub-paragraphs (b) to (d) of Ground One all require a finding in relation to the same issue. That is, in relation to the allegations made against Mr Wells in the Points of Claim document and the submission provided by the respondent for the 28 November 2016 hearing, did the respondent have reasonable justification; was there available factual material to provide a proper basis; and did the respondent believe on reasonable grounds that the allegations could be made? [167] The respondent concedes that the allegations which are made against Mr Wells in both documents signed by him [the points of claim and written submissions] are serious allegations to make against a legal practitioner. We are satisfied he was aware of the seriousness of the claims at the time he signed the subject documents. … [180] In his evidence and submission the respondent has relied heavily on three pieces of his evidence, namely; a letter from Mr Wells to Mr Tony Ristovski dated 28 November 2014; the affidavit of Tony Ristovski sworn 28 October 2016 and read in the hearing before Black J on 28 November 2016 (exhibit R7); and, in the email dated 5 May 2016 (exhibit R2). The respondent's case is that all that material led him to have a "gut feeling" that Mr Wells had "overstepped the mark" and moved from acting as a solicitor for Alex Ristovski to becoming partisan in the dispute between his client and Tony Ristovski.
The Tribunal found at S1[181]-[182]: [181] We have considered the evidence, both documentary and oral, provided by the respondent in this matter and can see no particular piece of evidence which would satisfy us the respondent could reasonably have made the serious allegation set out in the Originating Process which sought orders against Mr Wells; in the Points of Claim document he signed; and the supporting written submission. Further we have considered all the evidence collectively and concluded that when all is considered in the one exercise, there was still not a reasonable and proper basis for the claims/allegations to be made against Mr Wells. [182] We are satisfied the Barristers Rules, which are applicable to the consideration of the Application before us, make clear the care required by a barrister in seeking to invoke the coercive powers of a court. The same is true where a barrister is to make allegations or suggestions under privilege against any person and where he/she is required to believe, on reasonable grounds, that the factual material already available provides a proper basis for making a serious allegation. We are satisfied the respondent knew of the seriousness of the allegations he was making, in the documents he settled and signed in the proceeding which sought an order against Mr Wells.
It is not necessary to summarise the Tribunal's reasons for rejecting Mr de Robillard's asserted justification for the allegations made against Mr Wells relying on the 28 November 2014 letter from Mr Wells to Tony Ristovski (at S1[243]-[251]), or the subsequent inter-party correspondence during 2016 (at S1[252]-[256]). There is no ground of appeal or submission by Mr de Robillard challenging the Tribunal's findings in relation to this correspondence from Mr Wells.
Nor is there any direct challenge to the Tribunal's findings that Mr de Robillard breached rules 60(a), 61(a), 64(a) and 65(a) for the reasons given at S1[218]-[233], which included: [224] Rules 60(a) and 61(a) of the Barristers Rules each concern, in the first instance, the obligation on a barrister to exercise care. Care which is to ensure that the invocation of the coercive powers of a court, or decisions to make allegations or suggestions under privilege against any person, are reasonably justified by the material then available to the barrister. [225] The obligation is to "ensure" that the conduct did occur. It thus requires a high standard of care and is only qualified if the conduct is reasonably justified by reference to available material, a test not satisfied by what the barrister may believe or suspect, but on objective grounds. [226] In our view, the materials relied upon in these proceedings by the respondent fall short of demonstrating the care required by those two Barristers Rules. In our view, the materials identified in our reasons above, said by the respondent to have borne, on his mind, when he drafted the Originating Process and Points of Claim, do not reasonably justify the initiation of the proceedings against Mr Wells. There was, in our view, no reasonable justification in the materials to initiate proceedings on the material identified. [227] In our view, the same conclusion applies in respect of rule 61(a) but particularly in respect of allegations in the documents filed in the Supreme Court and the allegations and suggestions called in aid of the allegations as set out in the submissions dated 22 November 2016 and relied upon in the hearing on 28 November 2016. [228] The duty imposed on a barrister by rules 64(a) and 65(a) is a strict obligation that a barrister must not allege any matter of fact, or facts of a particular nature, unless the barrister has a belief based on reasonable grounds that the factual material provides a proper basis to do so. … [231] We find the available materials relied upon by the respondent, by way of explanation of his actions, do not satisfy the test of reasonable grounds as formulated by the High Court in George v Rockett. In addition, in our view, and we find, the materials relied upon by the respondent at the time, reasonably viewed and making allowance for the apparent urgency, did not provide a proper basis for making the very serious allegations of misconduct against Mr Wells. There is no reason to conclude that the interests of the respondent's clients could not be adequately protected, at the time, without making Mr Wells a defendant to the proceedings. [232] The allegations in the pleadings and in the written submissions that Mr Wells aided Alex in respect of his apparent lack of good faith, that Mr Wells aided and abetted Mr Wells in the use of the original proceedings (the 2015 proceedings) for an improper purpose, that he aided and abetted his client in relation to breaches of section 181 of the Corporations Act, and separately in respect of oppressive conduct under sections 232 to 234 of that Act, and that Mr Wells overstepped his function as a lawyer and officer of the Court could not on the factual material available provide a proper basis for those allegations. [233] We are satisfied that, and so find, the respondent by his conduct contravened rules 60(a), 61(a), 64(a) and 65(a) of the Barristers Rules.
Further, there is no direct challenge to the Tribunal's finding that Mr de Robillard breached rule 8(c) for the reasons given by the Tribunal at S1[234]-[256], which included: [234] As set out above, the Council relies on the first limb of rule 8(c), namely, that by the same conduct which contravened the other rules, the respondent was likely to diminish public confidence in the legal profession. We were not taken to any authority and no submissions were made to us as to precisely why the conduct was likely to diminish confidence in the legal profession. … [249] The respondent further relied on this letter of 28 November 2014 as providing him with the "strong feeling" that what was contained in the letter was "solicitor-driven". He also suspected that other correspondence, the letter of 15 November 2015, the letter of 27 January 2016 and the letter of 11 February 2016, supported a suspicion that they were "solicitor-driven". [250] In our view the correspondence clearly indicates that Mr Wells was acting over a period of time, seeking to protect and pursue his client's interests, was corresponding to achieve that objective and was persisting in trying to achieve an outcome acceptable to his client. The term "solicitor-driven" may be acceptable as a description of those legitimate efforts and steps taken by Mr Wells, on instructions, and on behalf of his client. [251] In our view, the term, as used by the respondent, could not justify or provide an answer to the breaches of the Barristers Rules relied upon by the Council. … [253] There is, in our view, no basis in the correspondence of 27 January 2016, or the letter of 11 February 2016, or the combination of those letters, to support a view that Mr Wells was "mounting a new and sustained attack on Tony and on the family business" and therefore everything was solicitor-driven. It did not warrant as against Mr Wells, any of the allegations and orders sought against him in the proceedings. [254] The apparent concern of the respondent about the references in the correspondence that "Alex needs to be educated", fails to put the terms in context. It was in our view clear, as the passages we have extracted above show, that Alex required the documents so that he could make an informed decision as to what his interests and the value of his interests, in the various businesses and assets were. It is a distortion of what was occurring to suggest that the respondent appeared to be doing so, in this correspondence, in a way justifying the respondent's conduct. [255] In our view, the concerns expressed by the respondent concerning the letter of 29 April 2016 could not on a proper reading provide any foundation for those concerns. [256] The respondent said that what he was most concerned about, when he settled the Points of Claim dated 16 November 2016, was the letter of 6 September 2016, referred to above. The concern appears to have related to the instructions set out by Mr Wells in the letter. In our view, properly viewed, it could not be reasonably concluded that Mr Wells would, or would be entitled to, take the steps there set out in his own name or in his own interests. The correspondence in our view does not provide a basis for a belief, on reasonable grounds, that there was material available to the respondent that supported these serious and unrelated allegations made against Mr Wells.
Mr de Robillard's essential proposition on appeal is that the allegations made against Mr Wells in the 2016 proceedings were justified given the contents of (i) the 6 May 2016 email from Nadine Ristovski to Mr de Robillard, (ii) the Ristovski affidavit, and (iii) other affidavits filed in the 2015 proceedings.

[28]

Ristovski affidavit

The Tribunal summarised the contents of the Ristovski affidavit at S1[216]: The paragraphs of the Ristovski 2016 affidavit in summary refer to: 1 letters written by Mr Wells directly to the family father who was severely ill at the time, but clearly had a direct financial interest in what Alex was claiming; 2 mediation proposed in earlier Supreme Court proceedings; 3 the bank freezing companies' accounts; 4 a belief that Alex's wife as Second Respondent in the proceedings against Alex and Mr Wells was a significant driving force in the main proceedings; 5 a belief that Alex would not have thought to act as he did (not unlawfully) without having been so advised by his wife and Mr Wells; 6 that there was urgency for interim business stability and several payments to be made by the family companies requiring reinstatement of the accounts so as to avoid the adverse impact on the business and their reputation; 7 a reference to the letter from Mr Wells dated 6 September 2016 (which we have addressed separately); 8 possible undue influence on the mother Jovka Ristovska; and 9 that Mr Wells had insisted on running District Court proceedings in parallel with the Supreme Court Proceeding and in the District Court proceedings Alex was making a range of claims, and found at S1[217]: As pointed out by the Council, this material does not indicate any unacceptable conduct on the part of Mr Wells writing to the National Australia Bank on behalf of his client; the material does not at any point suggest that Mr Wells attempted to influence his clients' mother; and a belief as to the inability of Mr Wells' client, Alex, to devise a strategy without the assistance of his solicitor does not take the matter further.
The Tribunal further found that the Ristovski affidavit did not provide reasonable justification for the allegations made against Mr Wells in the 2016 proceedings, giving the following reasons at S1[257]-[258]: [257] The evidence in and annexed to the Tony Ristovski affidavit, relied upon by the respondent, may have suggested to the respondent that there was some urgency. Multiple court cases and actions taken by Alex, which were seen to have an impact on the businesses (the freezing of bank accounts), being seen to require further action. However, in our view, and we find, such urgency did not justify joining Mr Wells as a defendant in the proceedings. There was also no basis for the respondent's submission that it was action by Mr Wells, other than in his capacity as solicitor for Alex, and no basis to allege that the action was designed to almost cripple the businesses. [258] In our view, the submission that there was in this material plainly some basis to consider, at the relevant time, that Mr wells had some input into the event, other than as an ordinary solicitor acting for a client, should be rejected. The material did not reasonably justify, either on its own or with the other matters relied upon by the respondent at the time, the invocation of the coercive powers of the Court. The allegations and suggestions against Mr Wells were not reasonably justified on the materials. For the same reason, we are also of the view that this material could not have founded a belief on reasonable grounds that there was a proper basis for the serious allegations, against Mr Wells, of conduct which was designed to impact adversely on the business of Tony Ristovski. Even if it was the case that Mr Wells was acting somewhat robustly, that could not by implication mean he was acting inappropriately.
It is said that these findings are in error because the Tribunal disregarded the context in which Mr de Robillard made the allegations against Mr Wells in the 2016 proceedings, namely, the existing dispute between the parties to the 2015 proceedings. But the Tribunal did not ignore those contextual circumstances. The Tribunal had regard to the circumstances preceding the 2016 proceedings, commencing with the initial letter of demand from Mr Wells to Tony Ristovski dated 28 November 2014 and the subsequent inter-party correspondence relating to the claims made in the 2015 proceedings: at S1[183]-[212], [243]-[256].

[32]

The "major premise" of the legislative scheme

It is said that the Tribunal focused "unduly" on sub-par (a) of each of the Barristers Rules found to have been breached, instead of undertaking a "holistic" consideration of each rule within the context of the "major premises" of the legislative scheme (ground 15), namely, the interests of the general public in having access to justice (ground 22). There are several difficulties with this contention.
First, as the Tribunal found, r 8(c) of the Barristers Rules acknowledges the role played by each barrister in maintaining public confidence in the profession and the administration of justice and the strong element of public interest in the performance of the role, given counsels' paramount duty to the administration of justice in the context of allegations: at S1[235]-[240]. See also: Legal Services Commissioner v Merkin [2019] QCAT 272, concerning rule 12(c) of the Barristers' Conduct Rules 2011 (Qld) which is in the same terms as rule 8(c) of the Barristers Rules. As the Tribunal said in its conclusion at S1[282]: 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.
Second, as the Tribunal also found, the submission ignored the very special protection of advocates' immunity which a barrister enjoys from civil suit arising from the conduct of a case in court: Giannarelli v Wraith (1988) 165 CLR 543 at 555 and 556; [1988] HCA 52. Further, as the Tribunal correctly observed at S1[241]-[242]: We consider that the immunity attached to a barrister's work, as defined in the above referred to decisions, casts a large responsibility upon a barrister to ensure that the protection he/she has is exercised with great care, as the damage to reputation and standing of the subject of an allegation, made in litigation in the Court, can be catastrophic to that individual. To exercise that immunity in a manner which is in breach of the Barristers Rules identified and relied upon by the Council in this hearing, we consider, has the very real probability of diminishing public confidence in the legal profession, or the administration of justice and also, bringing the profession into public disrepute.
Third, the submission ignored the concessions made by Mr de Robillard at the hearing before Black J on 28 November 2016 (see [21] above). That Mr de Robillard sought to resile from those concessions on appeal demonstrated his lack of insight with respect to his conduct as counsel in the 2016 proceedings.
Fourth, the submission misstated the objectives of the Uniform Law stated in s 3, and the objectives of Ch 5 stated in s 260. These are addressed at [199]ff below. In short, it is not the premise of the legislative scheme that the object of disciplinary action against legal practitioners is constrained by the interests of the general public having access to justice.
The challenge to the Tribunal's finding on Ground 1 of professional misconduct has not been made out.

[33]

Challenge to finding of unsatisfactory professional conduct

In light of the facts that (a) the Bar Council abandoned reliance on its claim that Mr de Robillard be removed from the roll in the inherent jurisdiction of this Court and confined its claim to one based on the Tribunal's recommendation, and (b) the Tribunal's recommendation was based only on Ground 1, it is not necessary to address Ground 2. Even so, Mr de Robillard advanced a series of submissions directed to challenging the Tribunal's finding of unsatisfactory professional conduct based on that ground, including asking this Court to infer in light of the sequestration order made against him on 17 August 2017 that he was unable to pay the $16,906.36 the subject of the costs assessor's certificate which had been registered as a judgment on 7 June 2017.
There is no utility in dealing with Mr de Robillard's factual challenges, save to note that while it is not implausible that Mr de Robillard's financial circumstances in the weeks prior to his bankruptcy were strained, it is unlikely to have been difficult for Mr de Robillard to adduce evidence about his financial circumstances in the weeks preceding his bankruptcy, yet he failed to do so.
However, there may be some utility in addressing a point raised during the hearing concerning the operation of r 13(1)(q) of the General Rules, not least because the circumstances where a legal practitioner has been the subject of a personal costs order are apt to coincide with circumstances where disciplinary action may be considered or in fact brought against that legal practitioner. There appear to be some misconceptions in this area.
Rule 13(1)(q)(i) authorised the Tribunal to have regard, when considering whether Mr de Robillard was a fit and proper person to hold a practising certificate: (q) whether [he] has contravened-- (i) an order of a court or tribunal made in any proceedings …
The Bar Association's application before the Tribunal was narrowly circumscribed. Its complaint based on r 13(1)(q)(i) was confined to Mr de Robillard's failure to pay the deemed judgment that came into existence upon the lodgment of the costs certificate in the Supreme Court. As drafted, that ground recognised that the order made by Black J did not of itself impose any duty which Mr de Robillard might contravene for the purposes of the rule. However, the reasons of the Tribunal at S1[262]-[280] directed to this ground seem to proceed on the basis that Mr de Robillard had contravened the order made by Black J on 28 November 2016. The Tribunal referred to Mr Wells being "put to further cost in respect of enforcement procedures, including the obtaining of the report from a costs assessor" and described Mr de Robillard's response as "simply a case of a steadfast challenge at every stage". The Tribunal also said at S1[274]: In this matter the respondent argues that, in the circumstances, there were only two months delay between the judgment requiring him to pay and the sequestration. However, it was never accepted by the respondent that he had a duty to pay the sums ordered. He did not accept that by the Court's order, which he did not oppose at the time, the assessment was made by a third party and then made enforceable by a further Court order, whereby he became legally obliged to pay the costs. At all times until the matter was taken out of his hands by reason of the Federal Circuit Court order for his bankruptcy, on 17 August 2017, he sought to challenge his obligations.
It will be seen that the Tribunal described Mr de Robillard as being subject to a "duty to pay the sums ordered". It will also be borne in mind that if Mr de Robillard had paid Mr Wells the assessed amount of costs, it would have been within two months of his being made bankrupt, and so would be recoverable as a preference in proceedings brought by his trustee in bankruptcy. As events emerged, it was not possible for Mr de Robillard to pay from his own funds the amount of costs claimed by Mr Wells.
But the question of principle that arises in relation to this ground turns not upon Mr de Robillard's subsequent bankruptcy, but rather upon the juristic nature of deemed judgment created by filing the cost assessor's certificate. The Bar Council embraced the proposition that Mr de Robillard was subject to a duty: LEEMING JA: I think this is my last question on this topic. You took us to 274. At line 4, they complain that the respondent never accepted he had a duty to pay the sums ordered. Do you say there was a duty to pay either the amount ordered by Black J or the amount of the deemed judgment? MORGAN: We do say there was a duty to pay the sum ordered after the costs assessment, your Honour. I will consider that further, though, and we will have to pick up where that was put. LEEMING JA: By duty I mean as opposed to amenability of execution. MORGAN: I understand, thank you, your Honour.
Counsel did not return to the point.
As was implicitly recognised by counsel's response reproduced above, there was no contravention of the order made by Black J on 28 November 2016. The fact that the order was expressed to be "payable forthwith" engaged r 42.7(2) of the UCPR, with the consequence that the costs were payable despite the fact that the proceedings had not been concluded. Even so, the order was not enforceable until such time as it was quantified and had been filed in court. Until the costs assessor had determined the amount of costs, there was no enforceable obligation to pay any amount of money to Mr Wells. In short, there was an order, but it was not one which could be contravened for the purposes of r 13(1)(q).
The effect of filing the costs assessor's certificate was that it was taken to be a judgment of the Supreme Court, in accordance with s 70(5) of the Uniform Law, which provides: In the case of an amount of money specified in a certificate that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid money. The rate of any interest payable in respect of that amount of money is the rate of interest in the court in which the certificate is filed.
Accordingly, Mr Wells became a (deemed) judgment creditor, entitled to execute his judgment in familiar ways, including by serving a bankruptcy notice or lodging a writ on any real property owned by Mr de Robillard or seeking a garnishee order.
However, contrary to the reasoning of the Tribunal at S1[274] which was adopted by the Bar Council, the existence of a judgment against Mr de Robillard did not mean that he was subject to a duty to pay it. Instead, he was liable to the various remedies to which a judgment creditor is entitled. Another way of expressing this is that the judgment creditor was empowered to exercise certain remedies against Mr de Robillard and his property. The difference between being subject to a duty and being amenable to the exercise of a power is basal. Even if one is unfamiliar with the analysis of Wesley Hohfeld, the inutility of any analysis of duty is obvious on a moment's consideration: see W N Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, (1913) 23 Yale Law Journal 16. If there were a duty to pay a judgment debt, what is the sanction for breach? Another judgment?
The consequence is that there are two reasons why r 13(1)(q)(i) was never applicable. First, there was no order. Secondly, there was no contravention.
As to the first, the only order was that of Black J. But the order made by Black J was not an order which obliged Mr de Robillard to do anything. Nor, until such time as the costs had been assessed, was it capable of being enforced against Mr de Robillard.
Although the report of the professional conduct committee referred to the "judgment/order" which issued from the Supreme Court following the lodgement of the costs assessor's certificate, that is merely the title of the generic document. The terms of the certificate itself correctly, and consistently with s 70(5), describe it as a judgment.
Secondly, there was no contravention. The amenability of a person to the various processes by which a judgment may be executed is distinct from the requirement in r 13(1)(q)(i) that there be a contravention. But only if there is some obligation to do something, or to refrain from doing something, can there be a contravention. There can be no contravention in the absence of an obligation.
The foregoing is corroborated by the explicit provision made in the rules for whether the practitioner has been "an insolvent under administration", a term which includes bankruptcy. If the approach taken by the Tribunal is correct, then every person who is made bankrupt based on a judgment debt will also be a person who has contravened a court order.
The reasoning above concerning a court order to pay costs and its consequences is to be distinguished from a court order that a legal practitioner repay particular funds held on trust, or restore documents to a former client, or otherwise do or refrain from doing some act. Those are all examples of orders which may be contravened by a legal practitioner, thereby engaging r 13(1)(q). An intermediate case will arise where a gross sum costs order against a practitioner is made. Such an order is directly enforceable without the need to go to assessment. No view is expressed as to the operation of r 13(1)(q) upon those orders. The Tribunal's finding of unsatisfactory professional conduct should be set aside.

[35]

Mr de Robillard's disciplinary history

It is said that the Tribunal erred in focusing only on the prior adverse findings made against Mr de Robillard in relation to practice as a barrister within "a short period" leading up to the cancellation of his practising certificate on 21 June 2018.
The prior adverse findings against Mr de Robillard arose from several complaints against him in the period August 2016 to October 2018. The Tribunal summarised the circumstances of these complaints (at S2[237]) and noted (at S2[238]) that Mr de Robillard had been the recipient of five reprimands, one caution, and was required to provide an undertaking in relation to the complaint that he had represented that he was a barrister in January 2019, when he no longer had a practising certificate. Those findings were: 1. on 12 October 2017, following a complaint referred by the NSW Commissioner, the Bar Council found that Mr de Robillard had breached r 54 of the Barristers Rules in communicating by email dated 19 July 2016 addressed to the Principal Registrar of the Family Court of Australia, and the Bar Council made an order to reprimand him; 2. on 11 October 2018, following upon a complaint by a client (Client A), the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in failing to provide the client with monthly updates about his case and in failing to progress the client's case by taking action against a financial institution despite being paid $10,000 by the client, and made an order reprimanding him and also that he return to Client A the $10,000 fee he had received; 3. on 9 November 2018, following a complaint by the Bar Council on 8 June 2017 arising out of the investigation by a PCC of the complaint by Client A, the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in (i) receiving trust monies from Client A in breach of s 252 of the Legal Profession Act, (ii) receiving and disbursing funds to himself without accounting to his client, (iii) failing to comply with r 24B of the Barristers Rules (6 January 2014) then in force, and (iv) failing to comply with a notice issued pursuant to s 371 of the Uniform Law, and made an order that Mr de Robillard be reprimanded; 4. on 6 June 2019, following a complaint by a client (Client B), the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in legal proceedings involving a money claim by a plaintiff against the Australia Africa Business Council (AABC) of which he was President, in seeking to disavow AABC's liability to pay the debt occurred in circumstances where there were no reasonable grounds on the basis of proof or facts or a reasonably arguable view of the law to support the defence propounded by Mr de Robillard on behalf of the AABC that it was not a party to the arrangement and/or not liable for the debt. The Bar Council further found that Mr de Robillard's conduct breached Barristers Rules, rr 101(f) and (g) by retaining the brief from the AABC in circumstances where he, on any view, knew that defence of the case would bring his own conduct into question and in circumstances where he had a financial interest given that he might be found liable for the debt and this conduct also amounted to unsatisfactory professional conduct. The Bar Council made an order that Mr de Robillard be reprimanded; 5. on 24 August 2020, arising out of the complaint by Client A, the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in failing to make a costs disclosure to Client A, contrary to ss 309 and 311 of the Legal Profession Act, and made an order that Mr de Robillard be cautioned; and 6. on 20 August 2020, the Bar Council found that Mr de Robillard had engaged in unsatisfactory professional conduct in failing to comply with the s 371 notice issued on 23 January 2018 in relation to the Wells complaint (see [30] above) and made an order reprimanding him.
The Tribunal took this disciplinary history into account as demonstrating that Mr de Robillard's conduct, as found in the Stage 1 reasons, (i) was not an isolated instance of unprofessional conduct, (ii) was an extensive history, (iii) reflected a period of repeated failure to meet his obligations as a barrister, (iv) the previous disciplinary orders had had little deterrent effect on him, and (v) was not addressed or explained by Mr de Robillard; rather he claimed that he was the subject of a "vendetta" by the previous CEO of the Bar Association (at S2[386(10)-(20)]). That characterisation of the prior adverse findings was well-open to the Tribunal on the evidence before it.

[37]

Abuse of process

It is said that the conduct of the Tribunal on 22 and 23 August 2022, including the senior member of the Tribunal as from 22 August 2022, "behaving very badly", and having an argument with the presiding member (ground 9) amounted to an "abuse of process" by the Tribunal which brought the administration of justice into disrepute.
When asked by the Court to provide transcript references, Mr de Robillard said that he did not know whether the transcript reflected what he alleged had occurred at the Stage 2 hearing. He asserted that there was a "problem" with the transcript but undertook to provide a transcript reference for his submission that the senior member was "behaving very badly". No transcript reference(s) was provided to the Court on the second or third day of the hearing.
A related submission was made that the Tribunal's decision was beyond power because (i) the Tribunal did "various things which contradict the purpose for which the power was given", and (ii) the Tribunal "misused" the power it was given under the Uniform Law by using its power in a way that "achieved the contrary result for which the power was granted", being the protection of the public against a lawyer.
As to (i), none of the "various things" alluded to by Mr de Robillard were identified in his submissions. As to (ii), the complaint about misuse of power is really a complaint that Mr de Robillard disagrees with the Tribunal's decision. That Mr de Robillard does not accept the Tribunal's decision that the protection of the public would be served by his removal from the roll, does not mean that the Tribunal misused its power in making that recommendation. That does not demonstrate error in the Tribunal's recommendation.
Further, the assertion that the Tribunal misused its power conferred by s 302(1)(f) of the Uniform Law ignored the reasons given by the Tribunal when making the recommendation that Mr de Robillard be removed from the roll, namely (i) to "protect the public", (ii) to serve as a sufficient deterrent to other lawyers, and (iii) "in order to uphold the confidence and respect of the public in the legal profession as a whole": at S2[387].
Those reasons accord with the well-established jurisdiction of the Tribunal in disciplinary matters to protect the public and not to punish the legal practitioner, keeping in mind the high standards required of legal practitioners in the practise of their profession. This includes protection of the public against similar defaults by other practitioners, and publicly marking the seriousness of what the practitioner has done, and whether the practitioner is a fit and proper person to be held out by the court as such: The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441A-C, 444C-G (Mahoney JA), 470-471 (Giles AJA), a disciplinary case against a solicitor under the 1987 Act.

[38]

The "major premise"

It is said that the Tribunal showed little regard for the "major premise" underpinning the Uniform Law, namely the interests of the general public in having access to justice (ground 22). Contrary to the so-called "major premise", the objectives of the Uniform Law are stated in s 3, and relevantly include: … (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and …
It is also said that the Tribunal's decision and actions of the Bar Council could adversely affect public respect for and confidence in the administration of justice, unless the Tribunal's decisions are set aside (ground 23). This misstates the position. Chapter 5 of the Uniform Law is concerned with "dispute resolution and professional discipline". It contains s 260 which states the three objectives of Ch 5, as follows: 1. to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and 2. 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 3. to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.
The Tribunal's decisions were made in performance of its disciplinary function of regulating the conduct of legal practitioners. There is no basis in the evidence for the contention that the Tribunal's decisions adversely affected public respect for and confidence in the administration of justice.

[42]

Dismissal order made on 29 January 2024 and 6 February 2024

On 29 January 2024 the Registrar made an order extending time for Mr de Robillard to file and serve his written submissions on the appeal by 5:00 pm on 5 February 2024 (order 1), and a self-executing order that in the event of failure to comply with order 1, the proceeding was dismissed (order 2). The self-executing order was made in circumstances where Mr de Robillard had previously failed on two occasions to comply with directions made by the Registrar on 25 September 2023 and 11 December 2023 for the filing of submissions in chief on the appeal by specified dates (30 November 2023, and 15 December 2023 respectively).
Mr de Robillard failed to comply with order 1 made on 29 January 2024; his written submissions were filed on 6 February 2024, by email at 10:00 am addressed to the Registrar, copied to the solicitors for the Bar Council. In his email, Mr de Robillard stated that he had not been able to file his submissions in the Registry "by close of business yesterday as ordered", he apologised for that failure and proffered as an explanation that he had been suffering from the after-effects of a serious Covid infection. However, given the earlier guillotine order, the Registrar considered that the proceeding had already been dismissed and made a confirmatory order on 6 February 2024: In accordance with order 2 made on 29 January 2024, the proceeding is dismissed.
The Bar Council neither consented to nor opposed the discharge of order 2 made by the Registrar made on 29 January 2024 and the further order made by the Registrar on 6 February 2024 confirming dismissal of the appeal proceedings.
Given the minor delay in complying with order 1 made on 29 January 2024, and the absence of any prejudice to the Bar Council arising from the non-compliance, it is in the interests of justice that Mr de Robillard be permitted to pursue his appeal, the substance of which has been addressed above. Accordingly, order 2 made by the Registrar on 29 January 2024 and the further order made by the Registrar on 6 February 2024 should both be set aside.

[46]

The significance of the Tribunal's findings

Mr de Robillard submitted that this Court should make its own findings on the material before it and not be bound or influenced by the findings of the Tribunal. The Bar Council argued to the contrary, referring to Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141; Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340 (Brereton JA, Leeming and White JJA agreeing); Council of the Law Society of New South Wales v Leslie [2021] NSWCA 59 (Macfarlan, White and McCallum JJA); and Law Society of the Australian Capital Territory v Powrie (2017) 12 ACTLR 184; [2017] ACTSCFC 4.
In Yoon at [22], [32]-[33], the Court (Bell P, Ward and White JJA) found, that in the absence of any challenge to the Tribunal's findings by way of an appeal by the practitioner, this Court should accept those findings and the Tribunal's characterisation of the practitioner's conduct. That approach was accepted and applied in Leslie at [30].
In Clifton at [8], Brereton JA said that although the current regime in the Uniform Law no longer confers the ultimate power of removal from the roll on the Tribunal, but reserves it to the Court, albeit upon the recommendation of the Tribunal, the Court is not required to "revisit, review or rehear proceedings that had been heard on a final basis by the Tribunal".
A similar view has been taken in Powrie where the Full Court of the Supreme Court of the Australian Capital Territory rejected the submission by the legal practitioner that the Court should engage in a review of the determinations of the designated tribunal as to whether the conduct constituted professional misconduct or unsatisfactory misconduct, given the availability of appeals from such determinations.
In this case, I have concluded that Mr de Robillard's appeal from the Tribunal's finding of professional misconduct and recommendation under s 302(1)(f) of the Uniform Law should be dismissed. On that assumption this Court can proceed on the basis that Mr de Robillard has been found guilty of the relevant breaches of the Barristers Rules and the Tribunal's characterisation of that conduct as professional misconduct.
Nevertheless, the Court is not bound to follow the Tribunal's recommendation that the practitioner's name be removed from the roll. As observed in Leslie at [30], the Court "retains the responsibility to be satisfied that the orders sought are appropriate on the facts found". That is, the Court must independently exercise the power under s 23(1)(c) of the Uniform Law on the evidence and material before it.

[47]

The evidence

The Bar Council relied upon all of the evidence that was before the Tribunal at the Stage 2 hearing, including documentary evidence tendered by Mr de Robillard (who did not give affidavit evidence at the Stage 2 hearing), namely: 1. affidavit evidence of Mr de Robillard's disciplinary history contained in the affidavit of Andreas Heger dated 28 January 2022, together with the transcript of cross-examination of Mr Heger, and a supporting affidavit of Christopher Moore dated 27 September 2022, together with the transcript of cross-examination of Mr Moore; and 2. six documents tendered by Mr de Robillard comprising: 1. Ex D4: letter addressed to the Governor of NSW dated 7 February 2007; 2. Ex D5: ASIC search dated 29 August 2022; 3. Ex D6: Bar Council minutes of 24 April 2002; 4. Ex D7: copy of a newspaper article published in the Sydney Morning Herald on 25 September 2004; 5. Ex D8: 63-page document on the letterhead of Selby, Kent, Levitt dated 6 April 2002; and 6. Ex D9: letter dated 19 December 2014 to Mr de Robillard from Law & Justice Foundation.
The prior disciplinary findings against Mr de Robillard have been summarised at [188] above. The contents of the documentary evidence tendered by Mr de Robillard before the Tribunal was summarised by the Tribunal (at S2 [305]-[313]). It is not necessary to refer to that summary as no submissions were made with respect to those documents by either party.
Mr de Robillard did not give evidence in this Court, but he tendered a bundle of documents of 185 pages (Ex 1) containing character references, newspaper articles and material relating to his time in Vanuatu in 1997, and articles (some written by him) and miscellaneous documents. He also tendered the original of a handwritten letter dated 8 December 1995 addressed "Dear Roger" (Ex 2), the first page of which was included in Ex 1 at tab 30.
Character evidence: the personal references fall into several categories: first, there are personal references that speak of Mr de Robillard's general character as a friend and are very supportive of him notwithstanding the general understanding of the referees of the finding in the Tribunal that Mr de Robillard is guilty of professional misconduct. There are 13 such personal references (tabs 1, 3, 4, 5, 6, 8, 13, 16, 17, 18, 19, 20 and 22 of 1). Tab 21 contains a personal reference that does not speak specifically to the allegation against Mr de Robillard.
Second, there are personal references from friends who also have legal training or qualifications. There are four such references (tabs 7, 9, 10 and 11 of 1). Whilst these are supportive of Mr de Robillard, none of these references speak specifically to the allegation against Mr de Robillard.
Third, there is a personal reference from Mr Stewart Woodman, emeritus professor in Politics and Strategic Studies, University of New South Wales, Canberra, which speaks of his knowledge of political unrest in Vanuatu in 1998 (in fact 1997) when Mr de Robillard was imprisoned for a short period in Vanuatu, which the author understood, incorrectly, was a matter that may be raised in relation to his fitness to practice (tab 15 of 1). Whilst supportive of Mr de Robillard, the author acknowledged that he is unaware of Mr de Robillard's work as a lawyer, except by way of general knowledge that he was in great demand to work in the international arena.
Fourth, there is a personal reference from a former client of Mr de Robillard in Local Court proceedings in October 2014, which is supportive of him but does not speak specifically to the allegation against Mr de Robillard (tab 12 of 1). There is also a "thank you" letter from an instructing solicitor in 1999 (tabs 12 and 14 of 1).
Other documents: the other documents in Ex 1 provide background context to Mr de Robillard's previous dealings with the Bar Council, past officers of the Bar Association, and past Presidents of the Bar Council. Such documents are of either marginal or no relevance to the question for this Court, namely, whether Mr de Robillard is not a fit and proper person to practice and is likely to remain so for the indefinite future. These include documents relating to: 1. the circumstances of Mr de Robillard's arrest and imprisonment in Vanuatu in March 1997, his conviction for contempt of court and sentence of imprisonment for two months, and his successful appeal against conviction in May 1997, represented by Mr Michael Adams QC and Ms Nicole Abadee of counsel (tabs 24, 25, 26, 31, 32, 33, 36, 37 and 38, Exhibit 1); 2. Mr de Robillard's past dealings with the NSW Bar Association or Bar Council, including Mr Selth, a former Executive Officer of the Bar Association, and various past Presidents of the Bar Association (tabs 27, 28, 29, 30 and 47 of 1); 3. a statement by Mr John Murphy MP in the Commonwealth Parliament on 25 May 2006 correcting an earlier statement by the member which had incorrectly named Mr de Robillard in association with other barristers as having committed serious tax offences (tab 46 of 1); and 4. copies of two unreported decisions in which Mr de Robillard appeared as counsel, one in 1999 in the Federal Court of Australia, and the other in 2011 in this Court (tabs 49 and 50 of 1).

[48]

Relevant principles

The ultimate question for this Court is whether Mr de Robillard is a fit and proper person to remain on the roll. Given that legal practitioners have heavy responsibilities and particular privileges which must be properly exercised in the interests of justice and of maintaining public confidence in the legal profession, the Court is concerned to ensure that only fit and proper persons, once admitted, continue in practice as officers of the Court.
In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-8; [1957] HCA 46, Kitto J said of the expression "a fit and proper person": The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession.
In the determination of that question this Court acts on established principles reflecting the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of the practitioner: NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [26]. The object of protection of the public includes deterring others who might be tempted to fall short of the high standards required of them. As Giles AJA said in Foreman at 471: … the public, and professional colleagues whose practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.
Thus, proceedings of this kind serve the purpose of maintaining public confidence in the administration of justice; that purpose having aspects of public accountability as well as deterrence: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [59].
The conduct or circumstances which may establish that a person is no longer a fit and proper person to be on the roll include professional misconduct. Serious professional misconduct may be sufficient to make a finding of lack of fitness and propriety and consequent removal but, as indicated, this must be for protective reasons and not as punishment of the individual.
Removal from the roll is the appropriate order where it is demonstrated both that the lawyer is presently not fit to practise and is likely to be unfit for the indefinite future: Green at [67]. Consideration of whether a practitioner's unfitness to practice is likely to be indefinite allows consideration of whether a less severe order such as suspension (for example), is appropriate: Legal Services Commissioner v Rushford (2012) 38 VR 141; [2012] VSC 632 at [23].

[49]

Fitness to practice

The practice history of Mr de Robillard is that after his admission to the roll of Barristers (as it then was) on 10 March 1988, he was issued with a practising certificate as a barrister in New South Wales on 26 August 1991 and held a practising certificate for the following periods: 1. 26 August 1991 to 8 September 1993 (subject to conditions imposed on pupils by the Rules of the NSW Bar Association); 2. 8 September 1993 to 6 March 2002 (unrestricted); 3. 16 August 2002 to 21 February 2003 (subject to conditions regarding compliance with tax obligations); 4. 27 March 2003 to 12 August 2005 (subject to conditions regarding compliance with tax obligations); and 5. 12 August 2005 to 29 June 2018 (unrestricted).
Mr de Robillard has not held a practising certificate as a barrister since 29 June 2018: see [33] above.
The conditions referred to in [242(3) and (4)] above can be put aside. Although referred to its written submissions, these conditions were not pressed by the Bar Council in oral argument as being relevant to Mr de Robillard's current fitness to practise.
In Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 200-201; [1960] HCA 40, the joint judgment of Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ spoke of the privilege enjoyed by counsel which must not be abused: … 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.
The conduct of Mr de Robillard the subject of the Tribunal's finding of professional misconduct involved Mr de Robillard repeatedly alleging that Mr Wells had commenced and used legal proceedings for an improper purpose. That allegation was very serious, and at no time did Mr de Robillard present to the Court in the 2016 proceedings any evidence that it was true. Rather, at the hearing before Black J on 28 November 2018, Mr de Robillard made the concessions referred to at [21] above.
The conduct of Mr de Robillard was of the most serious kind. As the Tribunal said when summarising its finding of professional misconduct (at S1[282]), there was no reasonably available factual foundation for joining Mr Wells to the 2016 proceedings or for the serious allegations of misconduct levelled against him. The inevitable consequence of joining Mr Wells where he was acting for one of the defendants was that he would be required to cease acting for his client, in addition to having to defend himself against those very serious allegations.
Although the evidence does not rise to the level to permit a finding that the object of Mr de Robillard's claims against Mr Wells was to intimidate him to cease to act for his client (cf Clyne at 199), it is obviously unfair and improper in the highest degree for a barrister in Mr de Robillard's position to make very serious allegations of misconduct against an opposing solicitor that were not reasonably based on the material then available to the barrister hoping, in the absence of such material, that mere assertion would suffice to permit his client to obtain interlocutory relief against the other party, including Mr Wells when such allegations would inevitably lead to Mr Wells ceasing to act for his client.
Mr de Robillard's disciplinary history is summarised at [188] above. None of the prior adverse findings were disputed by Mr de Robillard in this Court. It is said, however, that the failure to respond to the Bar Association's requests for information, various draft reports, and s 317 notices in relation to earlier complaints and the Wells complaint, was due to "previous difficulties in dealing with the Bar Association". Mr de Robillard described himself as having been "in a constant struggle with them". He said in oral argument: But all I'm saying is it should not be held against me that I've done these things because, on one view of things, it could have been a worthwhile thing to do … I've learnt my lesson, and not to be involved in what might be called the political games within the Bar Council … because I have achieved what I needed to achieve to get members of the Bar Council to look at thigs more differently.
This misses the point. The prior adverse findings constituted a period of repeated failure by Mr de Robillard to meet his obligations as a barrister between 2016 and 2018; at that time Mr de Robillard was an experienced counsel, having been in practice as a barrister for about 25 years. He offered no explanation for his disciplinary history but suggested an abuse of power or a vendetta against him by the Bar Council. There is no evidence that supports that assertion.
The character evidence is supportive of Mr de Robillard, however, such evidence can only be given little weight. It does not speak specifically to either the allegation against Mr de Robillard the subject of the Tribunal's finding of professional misconduct, or the allegations against Mr de Robillard the subject of the prior adverse findings against him.
Mr de Robillard said that he has been adequately punished by the loss of his reputation, and financially, as he has not been able to practise as a barrister since mid-2018 when his practising certificate was cancelled. The later circumstance was a consequence of a "show-cause" event related to his bankruptcy, not the disciplinary proceedings brought by the Bar Council. Nevertheless, accepting that there has been damage to Mr de Robillard's reputation from adverse publicity and loss of income as a barrister over six years, the more significant point is that throughout the period since mid-2018 Mr de Robillard has shown no substantial remorse or regret for his conduct.
Whilst Mr de Robillard acknowledged some wrongdoing on his part in his final submission at the Stage 2 hearing before the Tribunal, the Tribunal found that he was still not accepting full responsibility for his conduct (S2[386(30)]). He failed to acknowledge before the Tribunal his conduct the subject of prior adverse findings of unsatisfactory professional conduct, and instead, attributed those prior adverse findings to the influence of others conducting a vendetta against him. Nor did he demonstrate before the Tribunal insight that he understood what was improper about such conduct, how he came to behave in that manner, and what he has done or will do to ensure that no such circumstance will occur again (S2[386(29)]).
That remained the position in this Court. In response to the summons seeking a removal order, Mr de Robillard continued to display a lack of insight and absence of contrition. His failure to accept and understand the impropriety of his conduct in breach of the Barristers Rules is relevant to whether he should be permitted to remain on the roll: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; [1968] HCA 20. The misconduct by Mr de Robillard goes to the core of his professional obligations as an advocate and officer of the Court.
Mr de Robillard said that his practice as a barrister involved "catering more for the little people", and therefore the public interest would not be served by a removal order; rather, a less severe order is appropriate. This was a reference to a proposal which Mr de Robillard put to the Bar Council, shortly prior to the hearing in this Court, that he be allowed to recommence practice immediately on the condition that he attend a refresher course or the next Bar course, and that he practises under supervision of senior counsel for a period of 12 months. I have formed the view that a less severe order would not be appropriate, whether a suspension or the "education" and "supervision" proposal put forward by Mr de Robillard to the Bar Council. It should be noted that the jurisdiction of this Court on the present application is limited to either making a removal order or dismissing the summons.
As Mahoney JA said in Foreman at 444D-E, in deciding whether a person is a fit and proper person to be held out by the Court as such, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor or barrister as the case may be. It is relevant that the practitioner may not understand, or be willing to accept, the obligations which the law places upon a practitioner and the high standard of performance which it requires.
Regrettably, this is such a case. A practitioner's failure to appreciate the existence, let alone the gravity, of his or her misconduct is relevant to the possibility that it will recur, and the need to protect the public from such recurrence: Legal Profession Complaints Committee v Megan Maree In de Braekt [2013] WASC 124 at [35]. In this case, a suspension is inappropriate in circumstances where, despite not practising for six years, Mr de Robillard failed to appreciate the existence, and gravity, of his misconduct. For the same reasons, the "educational" and "supervision" conditions suggested by Mr de Robillard provide inadequate protection to the public and are inappropriate.
Delay: the delay by the Bar Council in the assessment investigation and determination of the Wells' complaint and the subsequent commencement of proceedings in the Tribunal is regrettable. Senior counsel for the Bar Council correctly accepted that delay was relevant to the exercise of the discretion on the application for removal. Two factors mitigate the delay.
One is that Mr de Robillard did not respond to (i) the opportunity afforded to him by letter dated 1 December 2017 to make written submissions in response to the Wells complaint, (ii) the s 371 notice issued by the Bar Association on 23 January 2018 by the time extended for a response, being 30 March 2018, or (iii) the opportunity afforded to him in February 2020 to make written submissions in response to the draft PCC report.
The other matter is that Mr de Robillard's practising certificate was cancelled for other reasons with effect from 29 June 2018, and he did not subsequently make an application for the issue of a practising certificate. Overall, I do not consider that the delay is a sufficient discretionary reason to refuse the removal order sought by the Bar Council.
Mr de Robillard's failure to comply with the high standards expected and required of a practitioner as an officer of the court was not a one-off occurrence. The previous disciplinary orders have had little, if any, deterrent effect on Mr de Robillard's subsequent conduct in breach of the Barristers Rules. The prior adverse findings weigh significantly in favour of a removal order, given that the professional misconduct found by the Tribunal is very serious. I recognise that the disciplinary action of a removal order is a very serious one. It involves very serious consequences for the practitioner, but the interests of the public and those of the legal profession to which Mr de Robillard belongs must also be considered. This Court has a duty to protect the public from misconduct of this kind, not just by Mr de Robillard, but from other barristers whom it might be expected would be deterred from such conduct by the sanction sought here to be imposed. This Court must also insist on the maintenance of the highest standards of propriety in the performance of duties by legal practitioners before the Court.
I am satisfied that Mr de Robillard is not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court. Further, as matters stand at present, the probabilities are that he is permanently unfit to practise. A removal order should be made as sought by the Bar Council.
It is also appropriate for the Court to declare in a formal way, and not merely in reasons for decision, the basis on which that order is made. As Spigelman CJ said in Cummins at [32]: … Such a declaration serves the public interest, not least by reaffirming the high regard the Court has for the reputation and standing of the legal profession, represented before the Court by the Bar Association. A formal declaration will go some way to assuring the public that conduct of this character cannot be and is not tolerated in the profession. …

[53]

Summons (2023/293223) 1. Declare that the respondent, Christian Roger de Robillard, is not a fit and proper person to be on the roll of legal practitioners of the Supreme Court of New South Wales. 2. Order that the name of the respondent, Christian Roger de Robillard, be removed from the roll of legal practitioners of the Supreme Court of New South Wales. 3. Respondent to pay the costs of the applicant of and incidental to these proceedings.

LEEMING JA: I have had the large advantage of reading the reasons for judgment of Gleeson JA in draft. Subject to what follows, I agree with them (and to be clear, the fact that I do not address most of the issues raised by Mr de Robillard does not detract from my agreement with Gleeson JA's reasons on those issues). However, I would reach a different conclusion. I can be brief in light of what has already been said.
Prominent in Mr de Robillard's submissions in both the appeal and the summons was the proposition that the "Bar Council" was not a legal person. His submission is correct, but it is without consequence. As Gleeson JA explains, the "Bar Council" is the fluctuating body of members who are recognised by the Constitution of the NSW Bar Association, charged (by cl 14.1 of the Constitution) with its management and administration and who may exercise all of its powers. The "Bar Council" is also recognised by various statutes as having standing to perform certain functions, including commencing proceedings in NCAT and in this Court, and being indemnified for certain costs from the Public Purpose Fund pursuant to s 53 of the Legal Profession Uniform Law Application Act 2014 (NSW). But (subject to statute) only a legal entity can claim an indemnity or retain a solicitor or commence proceedings in this Court. The references to the Bar Council are to be understood as references to the members of the Bar Council acting as agents of the Bar Association. Thus the moving parties on the summons commenced in this Court in the name of the "Bar Council" are the members of the Council from time to time, but acting as agents of the Bar Association. This accords with the submission of senior counsel.
So far as the evidence discloses, the fluctuating group of members constituting the Bar Council from time to time had very little to do with the decision-making process to commence proceedings, save for the initial resolution of 14 May 2020, or the conduct of those proceedings. There is nothing to suggest that they provided ongoing instructions to the lawyers who acted on their behalf. In what follows I shall refer to the Bar Association.
Turning to the appeal from the decision and orders of the Tribunal, I agree that Mr de Robillard's appeal against the finding of professional misconduct based on ground 1 must fail. I agree with Gleeson JA that the conduct giving rise to that finding was of a very serious kind. It fell short of being the worst sort of case in at least two respects: it fell short of being done for the purpose of intimidating the other solicitor, and the time from when the allegation was made to when it was struck out was a period of less than a fortnight.
I also agree with Gleeson JA that ground 2 is bad in law. To my mind that is close to self-evident. Contrary to the way in which ground 2 was framed, a costs order is not an injunction which can be contravened. A costs order does not without more give rise to a debt which is due and enforceable. The orders I propose will quash the finding made by the Tribunal that this count was made out and constituted unsatisfactory professional conduct, and in lieu thereof, dismiss this ground of the Bar Association's application.
The delay in this litigation is troubling. A great deal is attributable to steps taken by Mr de Robillard, but substantial aspects of the delay are attributable to the Bar Association. The complaint founding these proceedings was made in 2017. Notwithstanding that Mr de Robillard's practising certificate was cancelled in June 2018, no proceedings were commenced until November 2020, more than three years after the complaint on which they were based.
Mr de Robillard complained about the delay. He did so in aid of a submission that the proceedings were invalid. That submission was devoid of merit. But I made it clear on the first day of the hearing that I was concerned about delay: LEEMING JA: Well, I do have a concern, to be honest. There's a complaint in 2017. It takes two years to produce a draft report, it takes eight months for the draft report to go to the practitioner, and then Bar Council, or whoever it is, gets around to filing proceedings in November 2020. I find that concerning. It's more than three years. If it was a personal injury matter you would be out of time.
That concern was shared by the complainant. A long time after making his complaint, the solicitor expressed his own views about the conduct of the Bar Association. His letter of 14 May 2019 stated, after referring to his complaint, and his earlier inquiries as to its progress: I now receive a letter from you almost exactly two years after the complaint was made. I have no objection to the fact that nothing has been done about my complaint for two years but I do very strongly object to the content of your letter, particularly that you, in bold, require my reply to your letter by 5:00pm, Friday, 7 June 2019, which is mentioned not once, but twice in your letter. Your letter contains no apology for the failure on the part of the Bar Association to deal with my complaint, the delay in doing so, nor does it give any indication as to why there is now an inherent urgency in my response.
The solicitor was under the misunderstanding that Mr de Robillard had been struck off, as opposed to having had his practising certificate cancelled, as a telephone conversation followed by the Bar Association's letter of 15 May 2019 confirmed. The letter added "As discussed with you, the Committee intends to expedite the investigation of your complaint and see it through to the end, whether or not you would like to withdraw your complaint". Some weeks later, the solicitor informed the Bar Association that "[i]t is not my intention to provide any further information".
Thus an officer of the Bar Association was advising the complainant that his complaint would be "see[n] … through to the end", irrespective of the complainant's attitude. Of course, the Bar Association was entitled to form its own view of how to proceed, although one might think that the fact that a complainant had ceased to wish to assist would be a relevant consideration, but there is nothing to suggest that there was any indecision on the part of the Bar Association. The Bar Association also advised of its intention to "expedite" the complaint. Yet proceedings were not commenced until November 2020, another 18 months later.
What happened in the meantime? Obviously the matter was not especially urgent, despite its seriousness. Mr de Robillard was not practising. The complainant was no longer prepared to assist. A draft report was provided to the Bar Council on 31 July 2019. Unfortunately, a decision of NCAT (Council of the Law Society of NSW v DXW [2019] NSWCATOD 101) held, on 25 June 2019, that the Commissioner's delegation to the Council of the Law Society was invalid, and validating legislation did not come into effect until 22 November 2019 (by the Justice Legislation Amendment Act (No 2) 2019 (NSW)). There was no evidence of this, but the Court was asked to infer that the applicability of the reasoning in DXW to its own delegation from the Commissioner was the reason that the Bar Association did not invite comment from Mr de Robillard on its report dated 31 July 2019 until February 2020. I would infer that the legal uncertainty justified the Bar Association's inactivity between 31 July 2019 and 22 November 2019.
But I would also infer that the Bar Association knew that the legislation was being introduced, knew that it would have validating effect, and knew that it commenced on 22 November 2019. Why did it take a further three unexplained months, until 18 February 2020, to forward the report dated 31 July 2019 for comment?
And why after no comments had been received, and the Bar Council had resolved on 14 May 2020 to initiate and prosecute proceedings, did it take until 10 November 2020 to do so? It should be pointed out that the originating process is a short document of 6 pages and 13 paragraphs, 11 of which are uncontroversial and 2 of which particularise the grounds, and that those charged with drafting it had the benefit of the 31 July 2019 report identifying the two grounds which were the subject of the Bar Council's resolution. Another document in evidence indicates that the Bar Association had retained external solicitors no later than 2 July 2020.
It seems clear that either the Bar Association delayed too long retaining solicitors, or the solicitors or counsel took too long to draft or settle the originating process, or the Bar Association took too long to approve it, or some or all of the above. Something is wrong if it takes an organisation regulating the barristers' branch of the legal profession six months to go from a decision to commence proceedings on specified grounds to the commencement of those proceedings by a six page document.
I am poorly placed to express a view as to whether this level of delay by the Bar Association is normal. However, it is not unique. Indeed, the last contested occasion in which the Bar Association moved to strike a barrister from the roll in which I was involved was also accompanied by delay, which this Court took into account in assessing the hardship suffered by the barrister, summarised in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [185]: There are other factors that need to be taken into consideration. The conduct in question took place on 21 July 2017. The respondent was aware, at least from 2 August 2017, that his conduct was under consideration by the Council. On 7 September 2017 the Council first resolved to take disciplinary action. On 23 August 2018 it withdrew the first complaint and substituted another. It was not until 3 December 2019 that the Council filed its application in the Tribunal. It was another year before the Stage 1 hearing in the Tribunal took place (December 2020). The Tribunal delivered its Stage 1 decision promptly enough, in March 2021, and its Stage 2 decision in May 2021. For more than four years the respondent has lived with the uncertainty of his future. It is not necessary to attribute blame for the delay in bringing the matter to a conclusion; the effect has, plainly, involved significant hardship to the respondent.
I shall return to the significance of the Bar Association's delay.
It is somewhat artificial to exclude from my consideration of whether to exercise the discretion to remove Mr de Robillard's name from the roll my perception of his abilities as a barrister based on what he wrote and said during the majority of the three day hearing in this Court. He appeared for himself. That was his right, and it may well have been that he had no practical choice. But he took a series of legal points which were hopeless or close to hopeless, and, worse, made a series of forensic decisions (not least concerning the filing of evidence) which did not advance his case. He candidly said at one stage that "Obviously I have some fail[ings] as a barrister" and "the fact I have been a barrister for a long time doesn't mean I am a good barrister"; those statements showed some self-awareness, but fell well short of an appropriate level of insight and contrition. Further, subsequent to the main hearing, this Court heard Mr de Robillard's belated application that one of its members disqualify himself, aspects of which - including its timing - reflect poorly on his professional judgment. That application is summarised and resolved in a separate judgment of this Court. All of that said, the Bar Association confirmed at the conclusion of that application that the evidence upon which it relied was confined to that identified by Gleeson JA at [228] above. It is on that evidence and that evidence alone that this Court's determination of the Bar Association's application for removal is based.
It is one thing to form the view that Mr de Robillard is unfit to practise today, and another thing for the Bar Association to discharge the onus it has assumed to demonstrate that he is likely to be unfit for the indefinite future: see Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54]; Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]-[100]; Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [67].
In the circumstances of this case, that presents no small burden. The Bar Association issued practising certificates to Mr de Robillard for many years, and many clients and colleagues, including some lawyers, have been impressed at his abilities. Plainly something went wrong in Mr de Robillard's life in the period from 2016 until the cancellation of his practising certificate in June 2018. It is known that he was made bankrupt in 2017, but Mr de Robillard's forensic choices (which in large measure involved focussing on bitter disputes with the Bar Association more than two decades ago, rather than going into evidence about his position today), have left this Court without full explanation of what other matters contributed to this period in his life.
The position is, therefore, that there was a time in 2016-2018 when Mr de Robillard appears to have gone off the rails, the reasons for which have not been fully exposed. But there was also an earlier, longer period of time, from around 2004 - 2015, when Mr de Robillard appears to have practised without attracting complaints.
Is the future likely to be a repeat of the last couple of years before Mr de Robillard's practising certificate was cancelled? Or will he have learned from the experience? If Mr de Robillard returns to practice, will the future resemble 2016 and 2017, or will it resemble an earlier, longer period? The absence of anything like evidence of full contrition and insight is very concerning. But I am also conscious that the delay accompanying this hearing poses difficulties for the Bar Association to establish this aspect of the case. There is no evidence from the last six years about Mr de Robillard's ability or inability to represent clients, because the Bar Association has made it perfectly clear that it will not issue a practising certificate to him.
Mr de Robillard has offered to subject himself to conditions which would approximate a reader's first year. That is an important difference from what was put forward in the Tribunal. It also shows some insight. I am unable to be satisfied that that approach will not, at some time in the future, be viable. It is highly unusual, but this is a highly unusual case. The Bar Association has from time to time permitted former members who have left the profession for some years to return, on terms that they subject themselves to the same conditions to which readers are subjected. It is possible that with the benefit of the hearing in this Court, Mr de Robillard will achieve a level of insight which is presently lacking. If so, then a graduated conditional return to practice may be viable. The conditions which I have in mind include (I am not intending to be exhaustive) full participation in the Practice Course (a full-time four week practical course for new barristers), reading with a mentor who would meet with him most days, not being able to appear without a leader for at least the first three to six months, and thereafter only with the explicit permission, on a hearing by hearing basis, of his mentor, not taking direct access briefs, and an obligation to disclose to every instructing solicitor that he is practising under a period of supervision. It would be on the basis of that supervised practice that a further application for a practising certificate would be determined.
That level of restriction may not be satisfactory to Mr de Robillard (who was admitted to practise so long ago as 1977). And it may be that Mr de Robillard turns out not to achieve a greater measure of insight than he presently has. It may also be that, even if he achieves such insight, experience in closely supervised practice will confirm that the Bar Association is right and he is unlikely ever to be fit to practise as a barrister. But I am not satisfied that that is likely to be the case for the indefinite future. The result is that the Bar Association has not discharged its onus of establishing that Mr de Robillard is so unlikely ever to be fit to practise that his name should be removed from the roll.
That conclusion relieves me from a full consideration of the discretion which this Court has been called upon to exercise. But I do struggle to see the purpose of spending what must be hundreds of thousands of dollars of public funds which have been directed to the litigation to date. The jurisdiction is wholly protective. Yet no threat is posed to any barrister or solicitor or court or client by Mr de Robillard's name being on the roll. He lacks a practising certificate, and there is no prospect of that changing until and unless Mr de Robillard demonstrates greater insight than has hitherto been the case and subjects himself to something akin to the conditions of a further period of pupillage. Mr de Robillard is of the view that there are those in the Bar Association whose purpose is to punish him. I am unpersuaded that that is the case. However, I do find it difficult to reconcile this litigation with the protective nature of the jurisdiction which has been invoked, while I am certain that its effect has been to impose hardship on Mr de Robillard over the last six years. On the view I take, it is not necessary to determine whether, even if the Bar Association made out a case that Mr de Robillard was likely to be unfit to practise for the indefinite future, it might nonetheless be appropriate to refuse relief as a matter of discretion because no protective purpose would be served by the removal of his name from the roll.
I propose that Mr de Robillard's appeal be allowed in part, the finding of unsatisfactory professional conduct made by the Tribunal be set aside, and in lieu thereof ground 2 of the application be dismissed. I also propose that the Bar Association's summons be dismissed.
Bearing in mind that Mr de Robillard is, at least for the most part, only entitled to costs of an unrepresented litigant, and that the matters as to which he has succeeded seem not to have been advanced on the occasions when he was represented, my present view is that the appropriate exercise of the discretion as to costs in both proceedings is that there be no order as to costs, with the intention that Mr de Robillard and the Bar Association bear his and its own costs, with both having an entitlement to apply within the time specified in UCPR r 36.16 if he or it seeks some different order as to costs.
GRIFFITHS AJA: I agree with Gleeson JA.

[54]

PART 5 - PROVISIONS CONSEQUENT ON ENACTMENT OF JUSTICE LEGISLATION AMENDMENT ACT (NO 2) 2019 Validations (1) The 2015 delegation is taken to be, and always to have been, validly made under section 406 of the Uniform Law. (2) The 2015 delegation is taken to have had the following operation during the relevant period for the purposes of this Act and the Uniform Law - (a) the delegation of functions to the Bar Association also operated to delegate the functions to the Bar Council, (b) the delegation of functions to the Law Society also operated to delegate the functions to the Law Society Council, (c) the delegation authorised the Bar Association, Law Society and each Council (an authorised delegate) to make further delegations of functions to another entity (a subdelegate), (d) the delegation authorised an authorised delegate or a subdelegate to appoint investigators under section 282 of the Uniform Law (whether generally or in relation to a particular law practice or a particular complaints investigation), (e) the delegation authorised an authorised delegate or a subdelegate to exercise the Chapter 5 functions of the NSW Commissioner in relation to complaints even if - (i) a complaint was made to or by the delegate or subdelegate instead of the Commissioner, or (ii) a disciplinary matter or consumer matter dealt with by the delegate or subdelegate was a matter other than one the Commissioner decided not to deal with or continue to deal with, or (iii) a decision or determination was made or other action taken by a delegate or subdelegate concerning a disciplinary matter without the matter being referred to the delegate by the Commissioner, or (iv) a decision or determination was made or other action taken by a delegate or subdelegate concerning a consumer matter without the matter being referred to the delegate by the Commissioner. Note. Under the Uniform Law, Chapter 5 functions means - (a) functions under Chapter 5, or (b) functions under another provision of that Law relating to Chapter 5, or (c) functions under the Uniform Rules relating to Chapter 5. (3) Without limiting subclause (2), an authorised delegate or a subdelegate is taken during the relevant period - (a) to have been authorised under this Act and the Uniform Law - (i) to receive or make complaints in exercise of the Chapter 5 functions of the NSW Commissioner, and (ii) to initiate or prosecute proceedings in respect of complaints in a court or tribunal in exercise of the Chapter 5 functions of the NSW Commissioner, and (b) to have made a complaint even if there was non-compliance with a requirement of section 267 of the Uniform Law. (4) Accordingly - (a) any decision, determination or other action of an authorised delegate or subdelegate during the relevant period that would have been valid if subclauses (1)-(3) had been in force at the time is validated, and (b) any proceedings commenced by an authorised delegate or subdelegate during the relevant period that would have been validly commenced if subclauses (1)-(3) had been in force at the time are validated, and (c) any order or other decision of a court or tribunal made during the relevant period in proceedings referred to in paragraph (b) that would have been valid if subclauses (1)-(3) had been in force at the time is validated. … (9) This clause (including anything authorised by this clause) has effect despite anything to the contrary in - (a) the 2015 delegation, or this Act, the Uniform Law or any other law. (10) In this clause - 2015 delegation means the delegation of the NSW Commissioner's functions to the Bar Association and Law Society purportedly made by the NSW Commissioner under section 406 of the Uniform Law on 18 June 2015. action includes an omission. commenced, in relation to proceedings, includes initiated or prosecuted. consumer matter has the meaning given by section 269 of the Uniform Law. disciplinary matter has the meaning given by section 270 of the Uniform Law. proceedings include purported proceedings. relevant invalidity ground, in relation to proceedings, means on the ground that the proceedings were not validly commenced by an authorised delegate or subdelegate because of any one or more of the following reasons - (a) the delegate or subdelegate was not authorised to commence the proceedings by the 2015 delegation, including because - (i) the 2015 delegation was not valid, or (ii) the terms of the 2015 delegation did not allow the delegate or subdelegate to commence proceedings, or (iii) the delegate, subdelegate or NSW Commissioner did not comply with a provision of the 2015 delegation, (b) the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where this Act or the Uniform Law required the complaint to have been made to or by the NSW Commissioner, (c) the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where there was non-compliance with a requirement of section 267 of the Uniform Law. relevant period means the period commencing on 18 June 2015 and ending immediately before the day on which this clause commences. rules of court, in relation to the Civil and Administrative Tribunal, means - (a) Tribunal rules referred to in section 25 of the Civil and Administrative Tribunal Act 2013, and (b) procedural directions given by the President of the Tribunal under section 26 of that Act. terminated includes withdrawn, stayed, dismissed, discontinued or otherwise not proceeded with. Uniform Law means the Legal Profession Uniform Law (NSW). 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: 13 December 2024

Legislation Cited (18)

Barristers Conduct Rules 2011(Qld)

Federal Court Rules 1979(Cth)

Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

Legal Profession Uniform Law Application Act 2015(NSW)

Legal Profession Uniform Conduct General Rules 2015(NSW)

Legal Professional Uniform Law Application Act 2014(NSW)

Barristers' Conduct Rules 2011(Qld)

Bankruptcy Act 1966(Cth)

Civil and Administrative Tribunal Act 2013(NSW)

Corporations Act 2001(Cth)

Federal Court Rules 2011(Cth)

Legal Profession Uniform Law Application Act 2014(NSW)

Legal Profession Uniform Conduct (Barristers) Rules 2015(NSW)

Legal Profession Uniform General Rules 2015(NSW)

Supreme Court Act 1970(NSW)

Supreme Court Rules 1970(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (80)

practitioner - Where lack of insight and absence of contrition for breach of Barristers Rules - Where practitioner not held practising certificate for over 6 years - Whether practitioner fit to practise - Whether removal from roll warranted in all the circumstances Legislation Cited: Bankruptcy Act 1966 (Cth), s 43 Barristers Conduct Rules 2011 (Qld), r 12 Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cll 18, 21(1)(c) Corporations Act 2001 (Cth), ss 79, 181, 1317E Federal Court Rules 1979 (Cth), rr 2, 9.41 Federal Court Rules 2011 (Cth), r 9.41 Justice Legislation Amendment Act (No 2) 2019 (NSW) Legal Profession Act 1987 (NSW), s 51 Legal Profession Act 2004 (NSW), ss 252, 311, 696 Legal Profession Uniform Law (NSW), ss 22, 23, 70, 264, 282, 297, 298, 299, 300, 301, 302, 371, 406, Ch 3, Sch 9 Legal Profession Uniform Law Application Act 2014 (NSW), ss 3, 11, 28, 35, 53, 70, 137, 260, 301 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 3, 4, 8, 9, 24B, 60, 61, 64, 65, 298 Legal Profession Uniform General Rules 2015 (NSW), rr 13, 101 Supreme Court Act 1970 (NSW), ss 48(2)(k), 75A, 121 Supreme Court Rules 1970 (NSW), r 65A.2 Uniform Civil Procedure Rules 2005 (NSW), rr 7.20, 12.7, 36.16, 42.1, 42.7, 49.19, 49.20, 51.18 Cases Cited: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340 Council of the Law Society of New South Wales v Green [2022] NSWCA 257 Council of the Law Society of New South Wales v Leslie [2021] NSWCA 59 Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Council of the New South Wales Bar Association v de Robillard (No 2) (Costs) [2023] NSWCATOD 116 Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 373; [2021] NSWCA 339 Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 House v The King (1936) 55 CLR 499; [1936] HCA 40 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 337; [2000] HCA 42 Law Society of the Australian Capital Territory v Powrie (2017) 12 ACTLR 18; [2017] ACTSCFC 4 Legal Profession Complaints Committee v Megan Maree In de Braekt [2013] WASC 124 Legal Services Commissioner v Merkin [2019] QCAT 272 Legal Services Commissioner v Rushford (2012) 38 VR 141; [2012] VSC 632 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 New South Wales Bar Association v de Robillard [2004] NSWADT 45 New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 O'Brien v Dawson (1942) 66 CLR 18; [1942] HCA 8 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 R v Birks (1990) 19 NSWLR 677 Sadler v Whiteman [2010] 1 KB 868 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 The Connaught Income Fund, Series I (in liquidation) v Capita Financial Managers Ltd [2014] EWHC 3619 (Comm) The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Wentworth v NSW Bar Association [1991] NSWCA 281 Wentworth v NSW Bar Association (1992) 176 CLR 239; [1992] HCA 24 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 Texts Cited: W N Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, (1913) 23 Yale Law Journal 16 Category: Principal judgment Parties: Christian Roger de Robillard (Applicant/Respondent) Council of the New South Wales Bar Association (Respondent/Applicant) Representation: Counsel: C R de Robillard (Self-represented) (Applicant/Respondent) K C Morgan SC / A Poukchanski (Respondent/Applicant) Solicitors: Hicksons Lawyers (Respondent/Applicant) File Number(s): 2023/208817; 2023/293223 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Civil Citation: [2021] NSWCATOD 207; [2023] NSWCATOD 75 Date of Decision: 10 December 2021; 1 June 2023 Before: Le Poer Trench ADCJ, H Dixon SC, L Porter File Number(s): 2020/320791

Cited By (1)

Council of the New South Wales Bar Association v Waterstreet

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Christian Roger de Robillard is a barrister admitted to practise in New South Wales. On 19 July 2017, the NSW Legal Services Commissioner (NSW Commissioner) referred a complaint against Mr de Robillard to the NSW Bar Association for assessment, investigation and determination in accordance with Ch 5 of the Legal Profession Uniform Law (NSW) (Uniform Law). That complaint had been made by Mr Warren Wells, an opposing solicitor in legal proceedings in the Equity Division. Mr Wells had been joined as fourth defendant in proceedings (2016 proceedings), alleging that he was an accessory to conduct by his client in contravention of the directors' duties provisions in the Corporations Act 2001 (Cth). On 28 November 2016, Black J had made orders striking out portions of an originating application and points of claim which related to Mr Wells, and ordered Mr de Robillard to personally pay the costs of Mr Wells in relation to the 2016 proceedings. On 10 November 2020, the Council of the New South Wales Bar Association (the Bar Council) commenced proceedings in the New South Wales Civil and Administrative Tribunal (the Tribunal) seeking disciplinary findings and orders against Mr de Robillard relating to his conduct as a barrister. After a three-day hearing (Stage 1), the Tribunal found Mr de Robillard guilty of professional misconduct based on breaches of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) and unsatisfactory professional conduct based on breach of the Legal Profession Uniform General Rules 2015 (NSW). The relevant breaches concerned Mr de Robillard's conduct as counsel in making allegations of fact in the 2016 proceedings amounting to serious misconduct against Mr Wells which were not reasonably justified on the material then available, nor did he believe on reasonable grounds that the factual material already available provided a proper basis to do so (Ground 1), and his failure to comply with an order of the Supreme Court, being a deemed money judgment that came into existence upon the lodgment of a costs certificate in the Supreme Court (Ground 2). After a second hearing (Stage 2) which considered appropriate orders to be made in light of the finding of professional misconduct, the Tribunal made a recommendation under s 302(1)(f) of the Uniform Law that Mr de Robillard's name be struck off the roll of legal practitioners of the Supreme Court. Mr de Robillard appealed from the findings and recommendation of the Tribunal and, by notice of motion, sought to set aside various interlocutory orders made by the Registrar in the appeal proceedings. The Bar Council applied by summons for a declaration that Mr de Robillard is not a fit and proper person to remain on the roll, and for a removal order. The appeal, notice of motion, and summons were heard concurrently. The appeal by Mr de Robillard raised five main issues: 1. Whether the Bar Council has standing to bring the disciplinary proceedings in the Tribunal and to defend the appeal; 2. Whether the disciplinary application filed in the Tribunal was valid; 3. Whether the Tribunal's decisions were affected by apprehended bias and/or procedural unfairness; 4. Whether the Tribunal's findings of professional misconduct in relation to Ground 1 and unsatisfactory professional conduct in relation to Ground 2 should be set aside; and 5. Whether the Tribunal's recommendation in its Stage 2 reasons should be set aside. The primary question on the Bar Council's summons seeking declaratory relief and a removal order, is whether Mr de Robillard is a fit and proper person to be on the roll. APPEAL: The Court (Gleeson JA, Griffiths AJA agreeing, Leeming JA agreeing with additional reasons, save for the order as to costs) held, allowing the appeal in part, and otherwise dismissing the appeal: As to issue (1), per Gleeson JA (Griffiths AJA agreeing): 1. The Bar Council has standing to institute and prosecute disciplinary proceedings in the Tribunal and to defend an appeal against that decision in this Court. Whilst the Bar Council has no separate legal identity, it has specific statutory functions and powers in relation to disciplinary proceedings including a right of appearance before the Tribunal and this Court. Those provisions apply the same facilitation to the Bar Council, although not a legal entity separate from the Bar Association, to institute and prosecute disciplinary proceedings for convenience in the name of the Bar Council, as applies under procedural rules of court in various jurisdictions to actions by or against a partnership: at [96]-[99], [110]-[116]. Wentworth v NSW Bar Association [1991] NSWCA 281; Wentworth v NSW Bar Association (1992) 176 CLR 239; [1992] HCA 24; Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254, considered and applied. As to issue (1), per Leeming JA: 1. The "Bar Council" is not in itself a legal entity which may commence proceedings. Rather, it is best understood as the members of the Bar Council acting as agents of the Bar Association. Read this way, the moving parties of the summons commenced in this Court in the name of the "Bar Council" are the members of the Council from time to time, but acting as agents of the Bar Association. In any case, this does not invalidate the proceedings: at [267]-[268]. As to issue (2), per Gleeson JA (Leeming JA and Griffiths AJA agreeing): 1. The effect of the 2019 amendment to the Legal Profession Uniform Law Application Act 2015 (NSW), which inserted cl 23 of Sch 9, is to validate the referral by the NSW Commissioner of complaints to the Bar Council relying on the 2015 delegation, including the complaint against Mr de Robillard: at [123]. Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, referred to. 1. There was no error by the Tribunal in finding that the Bar Council had resolved on 14 May 2020 to initiate and prosecute disciplinary proceedings against Mr de Robillard. The contention that the minutes of the Bar Council meeting on 14 May 2024 were not "proper minutes" was inconsistent with Mr de Robillard's partial admission in his Reply, and the way in which he conducted his case at the Stage 1 hearing: at [126]-[128]. 2. The application for disciplinary findings and orders as filed in the Tribunal on 10 November 2020 and the amended application filed shortly prior to the Stage 1 hearing were valid: at [133]-[134]. 3. That members of the Bar Council may have changed during the period from the referral of the complaint in July 2017 and the Bar Council's resolution in May 2020 to institute disciplinary proceedings does not invalidate the proceedings in the Tribunal. The reference to the Bar Council in the legislation denotes the shifting body of constituent members of the Bar Council from time to time. There is no statutory requirement that the Bar Council be constituted identically over the course of the Bar Council considering a complaint against a practitioner. Further, though the delay of nearly three years in the Bar Council's assessment, investigation, and determination of the complaint is regrettable, the delay does not affect the validity of the application in the Tribunal: at [136]-[140]. As to issue (3), per Gleeson JA (Leeming JA and Griffiths AJA agreeing): 1. Applying the objective "double-might" test for apprehended bias, a fair-minded lay observer would not reasonably consider that the Tribunal might not bring an impartial mind to the resolution of the application brought by the Bar Council by reason of extraneous information in an affidavit and the disciplinary application which was not in evidence before the Tribunal. In any event, Mr de Robillard's failure to object at the Stage 1 hearing means that he waived any right he had to make an objection of apprehended bias on the basis of this material. Nor did the comments attributed to Judge Cole at a directions hearing prior to the Stage 1 hearing give rise to an apprehension of bias, noting that Judge Cole was not a member of the Tribunal at the Stage 1 or Stage 2 hearings: at [75], [78]. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128; CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50; Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30; Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA, applied. 1. There was no procedural unfairness in the Stage 1 hearing in the Tribunal being conducted via audio visual link in September 2021 in accordance with advice from the NSW Government in response to the Covid-19 pandemic, or the Stage 2 hearing being heard at Parramatta rather than at Sydney: at [82]-[84]. As to issue (4), per Gleeson JA (Leeming JA and Griffiths AJA agreeing): 1. There was no error in the Tribunal's finding of professional misconduct (Ground 1). The allegations of fact amounting to serious misconduct against Mr Wells in the originating process, points of claim and written submissions signed by Mr de Robillard were not reasonably justified on the material then available to Mr de Robillard, nor could he believe on reasonable grounds that the factual material already available provided a proper basis to do so. Neither the context in which the allegations were made, nor the urgency of the matter, justified Mr de Robillard's conduct in breach of the Barristers Rules: at [149], [152], [159]-[160]. 2. Additionally, the premise of the asserted justification of the allegations of accessorial liability against Mr Wells, that an accessory did not need to be an intentional participant in contraventions of the Corporations Act 2001 (Cth), fundamentally misstated the nature of accessorial liability: at [157]-[158]. Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65; Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, considered. 1. There was no error in the Tribunal's finding that Mr de Robillard's actions in breaching the Barristers Rules were apt to undermine public confidence in the legal profession and the administration of justice, and that a barrister's immunity as an advocate must be exercised with great care: at [162]-[166]. Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52; Legal Services Commissioner v Merkin [2019] QCAT 272, considered. 1. The Tribunal erred in finding unsatisfactory professional conduct (Ground 2). That finding was based on Mr de Robillard's failure to pay $16,906.36 the subject of a costs assessment certificate which had been registered as a deemed judgment on 7 June 2017. However, Mr de Robillard was not subject to a duty to pay that judgment; instead, he became a judgment debtor of Mr Wells and was liable to the various remedies to which a judgment creditor is entitled. The Tribunal's finding of unsatisfactory professional conduct on the basis that Mr de Robillard contravened an order of a court should be set aside: at [178]-[184]. As to issue (5), per Gleeson JA (Leeming JA and Griffiths AJA agreeing): 1. The Tribunal's recommendation that Mr de Robillard be removed from the roll was based only on Ground 1, that is, the finding of professional misconduct. This recommendation involved an evaluative decision on the part of the Tribunal, to which the House v The King (1936) 55 CLR 499; [1936] HCA 40 standard of review applies: at [186]. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, considered. 1. The Tribunal did not err in taking into account the prior adverse findings made against Mr de Robillard, that this prior conduct was not addressed or explained by him, that previous, less severe disciplinary orders had had little deterrent effect on him, and that his conduct was not an isolated incident of unprofessional conduct. Further, contrary to Mr de Robillard's submission, the Tribunal did not fail to have regard to other relevant matters including that he had not practised since July 2018, that he was the subject of adverse publicity and, and that his reputation had been damaged: at [188]-[192]. 2. The Tribunal's recommendation was made by reference to, and in light of, the objectives underpinning the Uniform Law, and was made in performance of the Tribunal's disciplinary function in regulating the conduct of legal practitioners: at [200]-[201]. The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, considered. Costs, per Gleeson JA (Griffiths AJA agreeing; contra Leeming JA): 1. Mr de Robillard should pay the Bar Council's costs of the appeal, excluding the costs relating to the Tribunal's finding on ground 2 of unsatisfactory professional conduct, in respect of which each party should pay their own costs: at [214], [291]. SUMMONS FOR REMOVAL ORDER: The Court (Gleeson JA, Griffiths AJA agreeing, Leeming JA dissenting) held, granting the relief sought in the Bar Council's summons: Per Gleeson JA (Griffiths AJA agreeing): 1. In the absence of a successful challenge to the Tribunal's findings by way of an appeal by the practitioner, the Court should accept those findings and the Tribunal's characterisation of the practitioner's conduct. Nevertheless, the Court is not bound to follow the Tribunal's recommendation that a practitioner's name be removed from the roll, but must independently exercise the power to make a removal order on the evidence and material before it: at [222]-[225]. Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141; Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340; Council of the Law Society of New South Wales v Leslie [2021] NSWCA; Law Society of the Australian Capital Territory v Powrie (2017) 12 ACTLR 184; [2017] ACTSCFC 4, considered. 1. The question before the Court is whether Mr de Robillard is not a fit and proper person to be a legal practitioner, here, a member of the barristers' branch of the legal profession. In determining that question, the Court must have regard to the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of the practitioner, and maintaining public confidence in the administration of justice; that purpose having aspects of public accountability as well as deterrence: at [236]-[241]. Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Council of the Law Society of New South Wales v Green [2022] NSWCA 257, considered. 1. A removal order should be made. In light of all the evidence, the only appropriate order which would serve the purposes of protection of the public and maintaining public confidence in the administration of justice is to remove Mr de Robillard's name from the roll. The conduct of Mr de Robillard the subject of the finding of professional misconduct was of the most serious kind, and is aggravated by the prior adverse findings, the failure to demonstrate insight as to the impropriety of his conduct, and absence of contrition. Evidence tendered by Mr de Robillard including various supportive character references can only be given little weight, as it largely does not speak specifically to the allegation against Mr de Robillard the subject of the Tribunal's finding of professional misconduct. Further, nothing in the evidence supports Mr de Robillard's continued assertion that the Bar Council has abused its power or holds a personal vendetta against him. Nor does the delay by the Bar Council in instituting the disciplinary proceedings amount to a sufficient discretionary reason to refuse the relief sought. Mr de Robillard is not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court, and as matters stand at present is probably permanently unfit to practise: at [246]-[263]. Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141; Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Council of the Law Society of New South Wales v Green [2022] NSWCA 257; Clyne v The New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40, considered. 1. Mr de Robillard should pay the costs of the summons: at [264]. Per Leeming JA: 1. The summons should be dismissed. The delay of some three years between the complaint being made by Mr Wells in 2017 and the commencement of the proceedings in the Tribunal in November 2020 is concerning, and weighs significantly on the Court's exercise of discretion in the removal application. Additionally, the Bar Association has failed to discharge its onus of proving that Mr de Robillard is both presently unfit for practise, and is likely to be unfit to practise for the indefinite future. Mr de Robillard's inability to practise since 2018, largely due to the Bar Association's delay in prosecuting these disciplinary proceedings, has meant there is no recent evidence as to his fitness or unfitness to practise which might form the basis of a finding that he is permanently unfit to practise. Further, Mr de Robillard has suggested alternative orders, such as that he be required to practise under supervision for a period of time, in lieu of removal from the roll. The Bar Association has not proved that these orders are inappropriate such that removal from the roll is the only satisfactory outcome: at [283]-[290]. Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93; Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163; Council of the Law Society of New South Wales v Green [2022] NSWCA 257, considered. 1. There should be no order as to the costs of the summons: at [291].