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On 28 October 2024, Mr Montenegro appealed to the Court of Appeal from the LPAB’s refusal to issue a compliance certificate enabling his readmission under s 19 of the Legal Profession Uniform Law. The LPAB was initially the only respondent and filed a notice of appearance on 25 November 2024 ([1]).

The Council of the Law Society of New South Wales applied on 31 January 2025 to intervene and be joined as a respondent. The Court granted leave on 4 March 2025. After the Law Society joined, the LPAB obtained leave to withdraw its earlier notice of appearance and filed a submitting appearance on 6 March 2025. The stated rationale was that the LPAB was the body whose decision was under challenge and that the Law Society’s participation meant the Court would still have an active contradictor ([2]).

The procedural setting then changed. Mr Montenegro foreshadowed that he intended to seek judicial review rather than pursue the appeal ([3]). The Law Society applied to set aside the order permitting it to intervene and to be removed as a party. The LPAB applied for leave to withdraw its submitting appearance and for time to enter an appearance under UCPR 6.10. Alternatively, it sought leave under UCPR 6.11(2) to rely on evidence and submissions ([4]).

Mr Montenegro was medically indisposed and did not appear at the hearing, but he had filed written submissions. He opposed the LPAB being heard substantively, while indicating that he did not oppose participation confined to powers and processes ([6]). Harrison JA granted the principal procedural relief sought: the Law Society was removed, and the LPAB was permitted to enter an appearance under UCPR 6.10. The Court also set dates for the LPAB’s response and evidence, Mr Montenegro’s reply, and further directions ([14]-[15]).

Why the court decided this way

The central practical concern was that removing the Law Society would leave the Court without an active contradictor. The LPAB submitted that the Court would benefit from an opposing party’s assistance and that it should be permitted to participate, subject to Hardiman and the authorities dealing with that principle ([9], [13]). Harrison JA considered it appropriate for the LPAB to respond and assist the Court, given the procedural history and Mr Montenegro’s stated intention to proceed by judicial review ([5]).

The Hardiman principle was central, but the ruling did not treat it as an absolute bar on an administrative body being heard. Mr Montenegro relied on the passage from R v Australian Broadcasting Tribunal; Ex parte Hardiman, which describes the usual course as a tribunal submitting to the Court’s order and says that, where a tribunal does make submissions, they should generally be limited to the tribunal’s powers and procedures ([7]). The LPAB did not dispute the principle’s authority or applicability. The difference between the parties concerned how it applied in these circumstances ([8]-[9]).

The LPAB pointed to authorities in which it had participated in judicial review proceedings, including Makowski, and to cases addressing the role of a tribunal where no other active contradictor is available ([10]-[12]). Harrison JA’s conclusion was case-specific: the LPAB could appear and respond as an active contradictor, but its role remained “subject only to the relevant application of the Hardiman principle” ([14]). The judgment therefore does not say that the LPAB may always argue the merits of a challenge to its own decision without constraint.

The Court also rejected the need for a separate order under UCPR 6.11(2). It gave two reasons. First, it read that sub-rule as applying only to a notice of appearance filed under UCPR 6.11(1). Second, an appearance under UCPR 6.10 would permit the LPAB to respond as an active contradictor, subject to Hardiman ([14]). The Court further preserved the procedural position of Mr Montenegro: the LPAB’s advance filing of evidence and submissions would not prevent him from raising concerns about receiving that evidence or relying on those submissions at the final hearing ([14]).

The judgment also referred to the administration of justice, the explanation for the LPAB’s changed position, the shift from appeal towards judicial review, and the absence of material prejudice as reasons advanced by the LPAB ([13]). The decision records those submissions, but its express reasoning focuses on the changed party configuration, the need for the Court’s assistance, the proper role of the LPAB, and the applicable procedural rules.

Before and after state of the law

The judgment does not announce a change in the law or purport to create a new general test. It applies existing procedural rules and the Hardiman principle to the circumstances of this proceeding.

The relevant baseline, as described in the judgment, is that a tribunal will usually submit to the Court’s order rather than become a protagonist. If it does participate, its submissions should generally concern its powers and procedures, because adversarial advocacy may raise a concern about its impartiality in later proceedings ([7]). The judgment also records authorities suggesting that the principle does not disentitle a body from being heard and that its force may depend on the nature of the body and the proceeding ([11]-[12]).

The case-specific position after the orders was that the LPAB could file an appearance under UCPR 6.10 and participate as an active contradictor. That permission did not erase the Hardiman principle; Harrison JA expressly made the LPAB’s role subject to its relevant application ([14]). Nor did it prevent Mr Montenegro from contesting the use or reception of the LPAB’s evidence and submissions at the final hearing ([14]).

Accordingly, the “before and after” is procedural rather than doctrinal. Before the ruling, the LPAB had a submitting appearance and the Law Society was a party. After it, the Law Society was removed and the LPAB was permitted to appear actively. The judgment’s scope is confined to those arrangements and does not establish the merits of the underlying dispute or a universal rule for all admission-board proceedings.

Key passages with plain-English translation

At [5], Harrison JA said it was appropriate for the LPAB to be “the proper party to respond to the application and to assist the Court”. In plain English, once the Law Society sought to leave, the body whose decision was being challenged was considered the suitable respondent to explain and answer the proceeding.

At [7], the judgment quoted the High Court’s statement in Hardiman that the “usual course” is for a tribunal to submit, and that its submissions should “in general” be limited to its powers and procedures. This is the source principle set out in the judgment, not a new statement originating with Harrison JA. Its terms are qualified: the passage describes a usual course and a general limitation, rather than an unconditional prohibition.

At [9], the LPAB argued that without its active participation the Court would have no contradictor once the Law Society was removed. This explains the practical issue the ruling addressed. The Court’s task was not merely to decide whether a tribunal could speak in the abstract, but to resolve the proposed party arrangement in a proceeding where the Court would otherwise lack an active opposing party.

At [14], Harrison JA held that an appearance under UCPR 6.10 would permit the LPAB to respond as an active contradictor, “subject only to the relevant application of the Hardiman principle”. In plain English, the LPAB was allowed to participate, but not on the basis that Hardiman had ceased to matter.

The same paragraph states that the applicant’s objections to evidence or submissions would not be foreclosed by the LPAB filing them in advance. That means the interlocutory permission did not finally settle whether particular evidence would be received or how the LPAB could rely on its submissions at the final hearing.

What fact patterns trigger this precedent

The ruling is most directly relevant to a procedural setting with these features: a public or statutory body is a respondent because its decision is under challenge; that body has filed a submitting appearance; a separate party has been allowed to intervene and act as an active contradictor; and that intervening party later seeks to leave, potentially leaving the Court without an active respondent.

The reasoning also matters where the form of the underlying proceeding changes or is said to change. Here, Mr Montenegro foreshadowed judicial review rather than pursuing the appeal, and the LPAB submitted that this change supported treating the proceeding as a fresh one for appearance purposes ([3], [13]). Harrison JA did not formulate a general rule that a change from appeal to judicial review automatically permits a new appearance. The decision turned on the circumstances and the need for the LPAB to be the proper party to respond and assist the Court ([5], [14]).

The ruling may also be relevant when a party seeks to rely on Hardiman to confine a tribunal’s participation. The judgment recognises the principle but considers it alongside the nature of the body, the kind of proceeding, other authorities, and the availability of a contradictor ([8]-[12]). It should not be read as a general finding that all bodies whose decisions are challenged may argue substantively in every case.

How later courts have treated it

The judgment itself contains no account of later judicial treatment of Montenegro v Legal Profession Admission Board. It was decided on 2 October 2025, and the provided text does not identify subsequent cases. It would therefore be unsupported to state whether later courts followed, distinguished, or otherwise treated this ruling.

The judgment does identify the authorities Harrison JA considered when resolving the motions. Hardiman supplied the general principle about tribunal participation ([7]). Makowski was cited as an example of the LPAB defending judicial review proceedings and as a decision in which submissions about the LPAB exceeding its role were rejected ([10]). Hastwell was cited for propositions concerning the force of Hardiman and the kinds of questions that judicial review typically raises ([11]-[12]). Mendonca and Hastwell were cited in connection with the need for an active contradictor ([11]). Wang was cited for the proposition that Hardiman does not disentitle a body from being heard ([12]).

Those references describe the authorities available to Harrison JA, not later treatment of the Montenegro ruling. Any account of subsequent treatment would require later sources not contained in this judgment.

Still-open questions

The ruling leaves the merits of the underlying matter entirely open. It does not decide whether the LPAB’s refusal to issue a compliance certificate was legally correct, whether Mr Montenegro’s contemplated judicial review would be made, or what relief might be available in any such proceeding. Harrison JA expressly addressed appearances and participation, not the substantive admission question ([1], [3]-[5]).

The scope of the LPAB’s eventual submissions was also not finally determined. The Court permitted an appearance under UCPR 6.10, while making the LPAB’s participation subject to the applicable Hardiman principle ([14]). The judgment does not specify in advance which particular arguments would fall within or outside that principle. It also leaves for the final hearing any objections Mr Montenegro might raise to the reception of evidence or reliance on submissions ([14]).

The orders required the LPAB to file and serve its response, written submissions and relied-on evidence by 27 October 2025, and required Mr Montenegro to file reply submissions by 10 November 2025. The matter was listed for further directions on 17 November 2025 ([15]). The text provided does not record what occurred after those procedural steps or whether the proposed judicial review was ultimately pursued.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.