While Justice Mark Leeming found the NSW Bar Council had failed to discharge its onus by proving de Robillard is unfit to practise, Justice Anthony Gleeson and acting Judge John Griffiths said he should be removed as he “is probably permanently unit to practise”.

The crux of the case arose from de Robillard’s conduct in 2016 equity division proceedings, in which he made baseless accusations that the opposing solicitor had “overstepped his function as a lawyer” and aided and abetted his client in breaches of the Corporations Act.

“The conduct of de Robillard, the subject of the finding of professional misconduct, was of the most serious kind, and is aggregated by … the failure to demonstrate insight as to the impropriety of his conduct, and absence of contrition,” Justice Gleeson and acting Judge Griffiths said in written reasons.

De Robillard had attempted to appeal the professional misconduct finding, originally made by the NSW Civil and Administrative Tribunal (NCAT) in December 2021. However, he only succeeded in overturning a finding of unsatisfactory professional conduct.

In his appeal submissions, de Robillard claimed the Bar Council did not have standing to bring disciplinary proceedings and questioned whether findings made by NCAT could have been valid.

Justice Leeming said that while the “moving parts” behind the removal order were members of the Bar, and not the Bar itself, this did not invalidate the proceedings. Further, Justice Gleeson said the Bar has standing to institute and prosecute disciplinary proceedings.

The unsatisfactory professional conduct finding was made over de Robillard’s alleged failure to pay the sum of a costs certificate, but the appeal bench found he was not the “subject to a duty to pay” and had instead become a “judgment debtor” who was liable to the various remedies to which a judgment creditor is entitled.

Justice Gleeson’s relation to brother enough for recusal, de Robillard argues

About 10 weeks after judgment on the above matter was reserved, but a day before delivery, de Robillard made an “urgent application” to reopen the proceedings to make an application for Justice Gleeson to remove himself on the grounds of apprehended bias.

According to de Robillard, Justice Gleeson would have to recuse himself because of his association with his brother, who had once been on the Bar Council and had made complaints about de Robillard in respect of practising certificate allegations.

De Robillard also relied on the brother’s refusal to “engage with him” when the barrister sought him out at a Sydney conference.

“The argument based on association – a close family relationship with a person who was previously a member of the Bar Council, but not a member of the Bar Council at any time relevant … failed to identify what it is said might lead me to decide the case other than on its legal and factual merits,” Justice Gleeson said.

“The argument also failed to articulate the logical connection between the matters complained of and the feared deviation by me from the course of deciding on its merits the proceedings in this court.”

De Robillard also relied on Justice Gleeson’s association with past and present members of the Bar Council, including Justices Michael Slattery, Ian Harrison and Julie Ward, who have allegedly “demonstrated personal animosity” towards de Robillard in the past.

Justices Slattery, Harrison and Ward first heard the removal application in February this year, when de Robillard attempted to have them all removed because they allegedly had “pre-determined in favour of the council without a hearing and without any reasons”.

The bench said his argument was “flawed” and dismissed it.

“The fact that a judge is a professional colleague of other judges who have had anything to do with a particular litigant, whether in the course of these or other proceedings, or when previously a member of the Bar Council is not sufficient to justify recusal,” Justice Gleeson said.

“The flaw in Mr de Robillard’s submission is that it assumes a relationship between a Chief Justice and a member of his or her court, and between judges of the court themselves, which is contrary to the fundamental principles of judicial independence.”

Squabble with NCAT member over ‘staring’ allegations

Back in June 2023, de Robillard had made a separate recusal application for NCAT principal member Mark Le Poer Trench and senior member Harry Dixon to recuse themselves.

As part of his application, de Robillard accused Dixon of staring at him “pointedly” and in a “very mean and aggressive way”.

It led to the following exchange:

SENIOR MEMBER DIXON: I do not wish to engage with you about allegations--

RESPONDENT: Well, stop staring at me then.

SENIOR MEMBER DIXON: --Mr de Robillard which are totally unfounded.

RESPONDENT: Then stop staring at me.

SENIOR MEMBER DIXON: I listen to you as I listen to any counsel.

RESPONDENT: You’re staring at me, before you were not, before you had your head down looking down. Now, you’re staring at me.

The members found de Robillard did not have the fitness to continue to practise as a barrister.

“Unfortunately, for the respondent, he has not demonstrated to us that he understands, or accepts, those limits and will abide by them if he is permitted to continue as a barrister or practising lawyer,” they determined.

The case for the substantive matter: de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 (13 December 2024)

The case for the recusal matter: de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 298 (13 December 2024)