By summons filed in October 2014 Mr Monteiro, a prisoner, seeks orders by way of judicial review in relation to a large variety of matters affecting the conditions of his imprisonment.
They include a decision as to his classification at the Wellington Correctional Centre; refusal of applications for minimum security classification and day and weekend release; his domicile in a single cell; his access to a computer and laptop; fees charged for photocopying various documents; decisions not to replace orthopaedic shoes and a pillow; charges, convictions and sentences for assault, intimidation and threats to prison guards, as well as threats to rape and kill a guard's wife and children; access to telephones; diet; provision of psychology and counselling services; compensation for property; access to various materials; food purchases; access to tubs for storage of belongings; recording his interactions with guards; provision of a toothbrush; exposure to smoking; removal of media publications which refer to Mr Monteiro; exclusion from collective punishment; provision of an orthopaedic mattress; compliance with medical advice; provision of a fan heater; how he is to be transported over water; root canal therapy; funding of medical and psychiatric examinations; and provision of specified cell furnishings.
In November 2014, Mr Monteiro sought immediate relief in relation to specified matters. Judgment was given in Monteiro v State of New South Wales [2014] NSWSC 1946, in relation to a referral for pro bono legal assistance and Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901, in relation to a December 2014 Justice Health decision not to provide Mr Monteiro a raw vegetarian vegetable and salad diet which he claimed was necessary to maintain and preserve his health. McCallum J concluded at [112] of Monteiro (No 2), that Mr Monteiro was entitled to a declaration that a decision Justice Health had made on 11 December 2014, that the special diet Mr Monteiro sought was not required for reasons of health, was invalid.
Monteiro v State of New South Wales [2016] NSWSC 1626 | Case summary | Zoe
There followed ongoing communications between the parties over proposed amendments to Mr Monteiro's summons. Eventually Mr Monteiro commenced separate proceedings, dealt with by Davies J in Monteiro v Parole Authority of New South Wales [2016] NSWSC 903. There he was finally legally represented, which resulted in the relief which he sought in a further amended summons then filed, being consented to.
By motion of 8 April 2016 in these proceedings, in which Mr Monteiro was then unrepresented, he sought orders amongst other things, that he be removed from illegal segregation custody and be returned to the general prison population; that the matter be listed for expedited hearing; that the Commissioner for Corrective Services be ordered never to segregate or place him in a safe cell again, as a solution to accommodating him in a single occupancy cell; that a number of prison guards be added as defendants to the proceedings; and an order that the decisions to place Mr Monteiro in a safe cell and segregation were unlawful, erroneous in law , absent administrative merit and that they be set aside.
On 27 April the Registrar ordered Mr Monteiro to file an amended notice of motion and further affidavit.
On 13 May Mr Monteiro filed an amended motion of 6 May, a further summons and an affidavit. In that motion he sought orders that Fullerton J and other unidentified "corrupt judges" recuse themselves from hearing his matters; that the relief sought in paragraphs 1 and 2 of his amended May summons be "enlivened/re-enlivened" and that they be heard in an expedited fashion; that named defendants be added and subpoenaed to give evidence; that he be referred to the pro bono panel; that he be provided with a copy of identified submissions and that these matters be dealt with, before the other orders sought in his summons, due to serious, but unidentified medical issues said to be "of an imminent nature".
By motion of 20 May, the Commissioner of Corrective Services sought orders dismissing Mr Monteiro's 8 April Motion.
On 27 May the Registrar ordered the Commissioner to provide Mr Monteiro a copy of the written submissions which he sought, and ordered Mr Monteiro to file a further amended notice of motion, addressing all of the relief that he was seeking, by 10 June.
The submissions were served on 30 May, but no amended motion was filed by Mr Monteiro. He then sought and was given a two week extension to file that motion, which was listed for hearing on 22 July before Harrison J. That hearing was vacated, Mr Monteiro not having filed the amended motion.
On 5 September Mr Monteiro informed the Registrar that he would neither file a further amended notice of motion, nor move on his May motion. In those circumstances the Crown's motion was listed for hearing on 26 October, when it came before me, sitting as duty judge. The Commissioner then sought to amend the motion to refer to Mr Monteiro's May motion.
Also before the Court that day was a motion of 12 September filed by Mr Monteiro, by which he sought to have the hearing vacated. That application was supported by an affidavit he had sworn, in which he said, amongst other things, that the result of torture in prison had rendered him temporarily unable to pursue this matter.
In that motion Mr Monteiro also advanced a number of other claims, including that Fullerton J was corrupt, seeking orders that her Honour be investigated for crimes which he did not there specify, as well as an order that she not hear more of his cases. He also there advanced what were detailed submissions, including as to the role of the Crown Solicitor; he sought to have claims in relation to his placement at Goulburn dealt with, given his worsening medical condition; he sought to add named defendants to the proceedings; and he sought orders for the production of records in relation to various maintenance matters.
Mr Monteiro also sought to rely on a report of the psychologist Mr Woods, who has seen him some seven times and has also spoken to him by phone on numerous occasions.
At the hearing on 26 October, Mr Monteiro made and I refused, a disqualification application (see Monteiro v State of New South Wales (No 3) [2016] NSWSC 1517). Mr Monteiro also sought to have the hearing of the Commissioner's motion vacated. That application was also not acceded to, but the hearing was later adjourned.
During the course of his submissions, Mr Monteiro contended that problems with his mental health and with his hearing, for which he required treatment, also precluded him properly advancing his case. The hearing was adjourned until 28 October, I being satisfied that neither Mr Monteiro's claimed difficulties with his hearing or mental health were such as to preclude him from dealing with the Commissioner's motion, but that he needed to be supplied with another copy of the Commissioner's submissions and an opportunity to respond to them, he claiming that his copy of the submissions having been removed from his cell, during a search conducted the previous day.
At the adjourned hearing on 28 October, Mr Monteiro was holding up a sign to indicate that he could not hear and he asked for another adjournment. He then explained that his ears were blocked and that he needed to pursue treatment. The matter was stood down and on resumption the further adjournment was opposed, in circumstances where Mr Monteiro's claim that he could not hear, was not accepted by the Commissioner.
In the result, after a short adjournment so that Mr Monteiro's could be advised of the course I proposed to take, I heard the Commissioner's submissions, directed that a copy of the transcript be served on Mr Monteiro and gave directions for him to serve any written submissions on which he wished to rely by 14 November. None were filed.
In those circumstances, the Commissioner's application for leave to file the amended notice of motion attached to its September written submissions, which referred to Mr Monteiro's May motion, must be granted. The amendment corrects the reference to Mr Monteiro's amended May motion. The Commissioner's motion was supported by an affidavit sworn in September by Mr McDonald. There being no objection to that affidavit, it is received.
Mr Monteiro's summons and the various motions he has filed and applications which he has made in these proceedings, made it very apparent that both he and the Court would be assisted, if he were referred for pro bono legal assistance. He had such assistance in relation to the question of his dietary requirements, which McCallum J dealt with as a matter of urgency. He succeeded on that application.
The Commissioner supported his further referral for such assistance, but still pressed the application to have other parts of Mr Monteiro's May motion struck out.
In the circumstances, I was satisfied that it was not necessary to hear Mr Monteiro further on his application for pro bono legal assistance and ordered that he be referred for such assistance.
As to the balance of his amended May motion, I am satisfied that it must be struck out. Mr Monteiro has had a fair opportunity to pursue that motion, if he wished. He has not pursued it, as he ought to have done, even given that he is in custody and has suffered ill health. In those circumstances it should be struck out for want of due despatch, as Rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) contemplates.
What must be borne in mind by both litigants and the Court is the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which imposes obligations on the parties to assist the Court to facilitate the overriding purpose there specified, namely, "the just, quick and cheap resolution of the real issues in the proceedings", particularly by participating in the processes of the Court and complying with its directions and orders.
The matter has repeatedly come before the Registrar and the Court. In September, Mr Monteiro indicated that he would neither press, nor further amend the May motion, as he had earlier foreshadowed. In those circumstances the Commissioner pressed the orders sought in the 20 May motion and Mr Monteiro was given an opportunity to respond to the Commissioner's submissions, which he did not avail himself of.
The Commissioner's case, that the orders sought in relation to Fullerton J and other corrupt judges was frivolous, vexatious and scandalous, must be accepted. That application is futile. Otherwise the motion is not pleaded in accordance with applicable requirements of the Uniform Civil Procedure Rules 2005 (NSW), not specifying as it must the basis on which it is contended the relief sought would be granted, including in relation to, for example, the application to join the named persons as defendants.
In those circumstances, the application for expedition, which Mr Monteiro has not, in any event, pursued, could also not be granted.
These proceedings have been on foot for over two years. Having neither opposed the orders sought by the Commissioner, nor taken available steps to pursue the orders sought in his amended May motion, justice requires that the motion be struck out, so that the further hearing of any outstanding aspects of Mr Monteiro's summons, which he still wishes to pursue, can be dealt with.
The usual order as to costs under the Rules is that they follow the event. In this case that would be an order in favour of the Commissioner in respect of the motions I have dealt with. In the circumstances which I have discussed, it is appropriate to make such an order.
[2]
Orders
For the reasons given, I order that Mr Monteiro's amended May 2016 motion be struck out and that he bear the Commissioner's costs of the motions I have dealt with, as agreed or assessed.
[3]
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Decision last updated: 18 November 2016