The principal proceedings in which this interlocutory dispute has arisen are by way of an appeal by Mr Montenegro from the refusal of the Legal Profession Admission Board ("LPAB") to readmit him to practice or, strictly speaking, to issue a certificate of compliance in respect of his readmission which would enable him to apply to the Court for readmission and to have his name restored to the Roll of Practitioners.
Mr Montenegro's name was removed from the Roll by a decision of the Court of Appeal in 2015 in the matter of Prothonotary of the Supreme Court (NSW) v Montenegro [2015] NSWCA 409. The application for the issue of a certificate of compliance was made in 2017, but, for various reasons which have been set out in written submissions and which it is unnecessary for me to recount for the purpose of this judgment, the decision of the Board was not made until 16 June 2020.
Mr Montenegro promptly applied to appeal that decision. However, once again there have been a number of reasons including reasons related to Mr Montenegro's health and, of course, the pandemic, which have meant that the matter has not yet been finalised. It was listed for hearing on 22 October 2020 before Wright J but was adjourned on that day for reasons related to Mr Montenegro's health. It is presently listed for final hearing on 24 November next. For that reason, I think it appropriate that I give an extempore decision in relation to this interlocutory application.
The LPAB has applied for access to certain court files raised during proceedings which Mr Montenegro has conducted on his own behalf. Those applications are made under the Rules in lieu of a subpoena for production. There are three files involved. They are, in the order in which they appear in Mr Montenegro's notice of motion: file number 2020/1556610 in the District Court; file number 2020/1091007 in the Local Court; and file number 2021/007958 in this Court. Mr Montenegro applies to have each of the applications for access to those files set aside.
As I have said, the application for inspection or access are made in lieu of the availability of a subpoena under r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW), and it is common ground between Mr Montenegro and Ms Bennett of counsel, who appears for the LPAB, that the principles governing setting aside subpoenas in civil proceedings are applicable to Mr Montenegro's application.
Effectively, Mr Montenegro has to satisfy me that the LPAB's application is without legitimate forensic purpose. The test of legitimate forensic purpose in relation to subpoenas in civil proceedings has been considered by the Court of Appeal in recent time in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Secretary v Blacktown City Council"). In that matter, ([at 65]) Bell P (as the Chief Justice then was) stated:
"It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or... it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as being illegitimate will be virtually non-existent."
Brereton JA delivered a judgment to the same effect and his Honour I think, with respect, put the matter more broadly by stating (at [85]):
"… [I]t suffices that the material called for will likely add, in the end, in some way or other, to the relevant evidence in the case."
I do not think there is any real difference in the verbal formulations of the then President and Brereton JA to which I have referred.
I have had the benefit of detailed written submissions from Mr Montenegro and also from Ms Bennett. I do not propose to summarise those matters in detail, having regard to the extempore nature of this judgment. I think it fair to say that Mr Montenegro's submissions in a nutshell are: first, that these are not proceedings which he is under any obligation to the LPAB to disclose; secondly, that these are proceedings which arose in each case in the context of a family dispute, are of a private nature and, he respectfully submits, not the business of the LPAB; thirdly, he submits in any event that the three proceedings are all related in some way to the Local Court proceedings which were an application by family members against him (albeit brought by the police) for an apprehended domestic violence order which proceedings were ultimately withdrawn in May 2021. He submits that those proceedings were, or the claims underpinning them, entirely unfounded and unsubstantiated in court, and baseless claims cannot satisfy either formulation of legitimate forensic purpose in relation to his application to set aside the subpoena.
The arguments of the LPAB as articulated by Ms Bennett are, first, that the various proceedings are caught by Mr Montenegro's duty of disclosure and, although the Local Court proceedings were withdrawn, a withdrawal does not necessarily establish that the complaints underlying the proceedings were unfounded. Secondly, by reference to the Legal Profession Uniform Admission Rules 2015 (NSW), and, in particular for present purposes, r 14, where a person applies for readmission, a number of specific requirements are imposed including the requirement that the applicant provide details of any "law-related experience since the applicant's name was removed from [the] Roll": r 14(1)(d).
As context, I was taken to the reasons of the LPAB for refusing Mr Montenegro's application for a compliance certificate, and it is evident from the material which I have considered, and I have read the reasons carefully in detail and in full, that because of his personal circumstances, including the consideration that he has been somewhat dogged by ill-health, to demonstrate law-related experience, Mr Montenegro sought to rely upon his conduct of proceedings in various courts as a self-represented litigant. I accept, as Mr Montenegro now argues, that the LPAB considered experience as a self-represented litigant of limited relevance to the matter. What was said at paragraph 94 of the reasons is as follows:
"The conduct of proceedings may to an extent demonstrate legal skills. However, it does not of itself provide evidence - it should be, perhaps, evident - proof of the experience envisaged by this rule. Rule 14(1)(d) is intended to allow demonstration, usually by referee reports from supervisors of an applicant having undertaken law-related experience, the applicant's reliability, honesty and candour in dealings with the public, courts and other professionals so as to suggest the applicant is a fit and proper person to be readmitted to the profession."
As I understand the argument that is put before me, the applicant's conduct of litigation as a self-litigant may of itself demonstrate some of those attributes of fitness and propriety apposite to the practice of law. In particular, it seems to me that the applicant's reliability, honesty and candour in dealings with courts and other professionals may be informed by the manner of his conduct of proceedings as a self-litigant.
It is not so much a question of the outcome of the proceedings. Any litigant may lose proceedings, or, on the other hand, any litigant may win. Where litigation is a two-horse race, it is inevitable that one of the litigants will lose. But it is not the result which shows the relevant matters, or at least not in my judgment. It is a question of what the public record would show about the applicant's reliability, honesty and candour in dealing with the court and the representatives of the opposite side which could be very relevant to the question of whether a compliance certificate should at this stage issue.
I should say that the principal proceedings in this Court involve an appeal by way of rehearing, but it is a rehearing in the context of no prior judicial determination having been made so that the authorities to which Ms Bennett took me in her written submissions suggest effectively that this appeal falls into that category where it is really an appeal by hearing de novo. It is also the situation that, although the proceedings can be characterised as protective in nature, the LPAB is the appropriate contradictor, and it is not bound by the situation otherwise have applies in many circumstances involving the exercise of the Court's supervisory jurisdiction where the decision-maker must take no active part in the proceedings. The LPAB is entitled to be the contradictor, it is entitled to put evidence before the Court, and it is entitled to make submissions about what the Court's order should be.
Looked at in the light of these considerations, I am satisfied that the applications for inspection I have referred to have a legitimate forensic purpose in the sense discussed in Secretary v Blacktown City Council and I decline to set the applications aside.
Mr Montenegro has expressed a legitimate concern. It is his understanding that the proceedings to which the files relate have been the subject of non-publication or suppression orders. He submits that there may be statutory provisions limiting the publication of aspects of the proceedings or identification of the parties, witnesses, or other persons referred to in the proceedings because of the family nature of the dispute. In particular, he expresses a concern in relation to children who may have been named.
I have not been provided with either a copy of orders that have been made or with a copy of any applicable statutory provision. In these circumstances, it is hard for me to make any ruling in relation to his concern. I do not understand the LPAB to oppose appropriate orders in this regard. I have expressed the view to which I adhere, as presently informed, if there are statutory provisions or court orders which require non-publication or suppression of aspects of the case, or the identity of any person connected with the case, they will operate according to their own terms and by their own legal force. However, I will grant liberty to the parties to apply lest there be any ambiguity or question about what may be required in regard to non-publication or suppression of information to be found within the files upon inspection.
My orders are:
1. Mr Montenegro's Notice of Motion filed 3 February 2022 is dismissed.
2. The defendant has leave to inspect Court File No 2020/1556610; 2020/1091007 and 2021/007958 in the District Court, Local Court and Supreme Court respectively.
3. Note that any statutory provision or court order restricting publication or suppressing any material contained within those files applies of its own force.
4. Grant liberty to the parties to apply on short notice less there is any ambiguity in relation to the application of order (3).
5. The plaintiff to pay the defendant's costs of this application application.
[2]
Amendments
18 August 2022 - Paragraph 10: First sentence the word "proprietary" changed to "propriety"
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: 18 August 2022