Monteiro v State of New South Wales

File Number(s): 2023/454715

Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

1. On 28 November 2024, I ordered that, pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (“UCPR”), the plaintiff, Mr Simon Monteiro, be referred for pro bono assistance with respect to his claim for damages arising from a broad range of conduct which he submits constitutes a legal cause of action. I noted that the referral was not in connection with Mr Monteiro's application for the revocation of his Extended Supervision Order (“ESO”).

2. By email of 5 June 2025, sent on behalf of Mr Monteiro, the Court was asked to make a further referral to the pro bono panel with respect to the damages claimed.

3. Rule 7.36(2A) of the UCPR is in the following form:

"The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 4 years unless the court is satisfied that there are special reasons that justify a further referral."

4. The email to which I have made reference did not contain any reasons why a second referral ought be made, let alone any special reasons. Accordingly, the matter has been listed before the Court today for the obtaining of any further assistance from Mr Monteiro with respect to his application.

5. Mr Monteiro has provided further information to the Court. It is unnecessary to recount it in its entirety, but to put it shortly, it appears that as a consequence of the first referral, a barrister agreed to appear for Mr Monteiro. There was a grant of legal aid in respect of Mr Monteiro's application for the revocation of an ESO. As it turned out, the barrister who accepted the pro bono referral, and a solicitor and senior counsel who were subsequently retained, acted for Mr Monteiro in the ESO revocation matter.

6. For reasons which do not need to be explored at length, the relationship between the lawyers and Mr Monteiro broke down with respect to the ESO revocation matter. The consequence of that breakdown was that the lawyers withdrew from acting for Mr Monteiro in respect of all matters, by which I include the claim for damages and the ESO revocation matter. Legal aid has not been withdrawn in respect of the ESO matter, and different lawyers have since been retained in respect of that matter.

7. The breakdown in the relationship with the barrister who accepted the pro bono referral was, so it seems to me, a regrettable, but not unheard of, incident of lawyers acting in a complex matter for Mr Monteiro who, it must be said without criticism, is capable of expressing firm views about any of his matters. In those circumstances, I am satisfied that the relationship with the previous barrister has broken down, and significant assistance has not, as yet, been supplied in respect of the claim for damages because there has been a concentration on the ESO revocation matter.

8. In all of the circumstances, I am satisfied that special reasons exist within the meaning of r 7.36(2A) of the UCPR.

9. Accordingly, I am satisfied that it is in the interests of justice that the Court should order that Mr Monteiro be referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance. In making this referral for the second time, I note that I am satisfied that special reasons exist, and I further note that I am satisfied that the nature and complexity of the proceedings, and the capacity of Mr Monteiro to obtain legal assistance outside the scheme, are such that it is appropriate for this referral to be made.

10. I note that the referral is made only in respect of the claim for damages and, in the first instance, is for assistance by way of advice, the preparation of pleadings, and appearances on interlocutory directions hearings.

11. I should also add that Ms Tasneem, for the Crown, appeared today and did not make any submissions to the Court that the Court should refrain from making this further referral.

12. In those circumstances, the appropriate orders for referral are made.

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