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[2025] NSWCA 233
procedural. The applicant was referred to the registrar for referral to a barrister on the Pro Bono Panel for the provision of advice in relation to the proceedings, pursuant to UCPR r 7.36(1). The order did...
2 cited instruments linked from this judgment.
The Court considered that Mr Montenegro could not afford legal help and faced issues he could not effectively handle alone. His case was sufficiently understandable and not obviously without merit, but pro bono assistance is limited and must be used carefully. The Court therefore arranged a referral for a barrister to advise him about the proceedings, without ordering that the barrister represent him or prepare amended court documents. The underlying dispute about the LPAB decisions remains undecided.
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2,153 words · generated 06/10/2026
In Montenegro v Legal Profession Admission Board [2025] NSWCA 233, Free JA dealt with an application for pro bono legal assistance in pending judicial review proceedings. The application was determined on the papers on 21 October 2025. The judgment concerns access to assistance and the scope of a referral, not the merits of the underlying dispute about admission or readmission to the legal profession.
The substantive proceedings arose from Mr Montenegro’s unsuccessful attempts to obtain a compliance certificate from the Legal Profession Admission Board (LPAB) under s 19 of the Legal Profession Uniform Law (NSW). The certificate was sought for the purposes of admission, or in his case readmission, as a legal practitioner under s 16 of that law. The LPAB had made decisions on 18 June 2024 and 8 October 2024. In a final amended summons filed on 9 September 2025, Mr Montenegro sought judicial review relief, including orders to quash those decisions, orders in the nature of mandamus requiring reconsideration, and a declaration that he satisfied the requirements for admission [2].
His grounds included complaints about the LPAB’s procedures, alleged bad faith, bias or apprehended bias, and alleged errors in the criteria applied or not applied [2]. Mr Montenegro also raised concerns about possible conflicts of interest and the constitutional appropriateness of judicial officers’ involvement in decision-making [4]. These were his allegations and grounds, not findings made by the Court.
The application for referral was filed on 7 October 2025. Mr Montenegro said that he could not afford private representation, was not in full-time employment, received social security, and held a pensioner’s concession card in connection with disabilities [4]. He also acknowledged that the issues he had raised were beyond his capacity to address effectively without assistance [7]. The LPAB did not oppose referral. Both parties requested determination on the papers [6].
The final order was deliberately limited: Mr Montenegro was referred to the registrar for referral to a barrister on the Pro Bono Panel “for the provision of advice in relation to the proceedings” [14]. The Court did not decide whether the LPAB’s decisions were valid, whether any alleged bias or legal error occurred, or whether Mr Montenegro met the statutory requirements for admission.
The Court began with the criteria in UCPR r 7.36(2). These allow consideration of the litigant’s means, capacity to obtain legal assistance outside the scheme, the nature and complexity of the proceedings, and any other matter the Court considers appropriate [7]. On the evidence, Mr Montenegro lacked the means to obtain legal advice and representation. The Court also accepted that he had sensibly recognised the limits of his capacity to conduct the case effectively on his own [7].
A referral was not automatic, however. The judgment emphasised that pro bono assistance is a valuable and scarce resource, dependent on the goodwill of legal practitioners. Practitioners who accept referrals acquire obligations under UCPR r 7.38, and the rules constrain when they may cease providing assistance under rr 7.39 and 7.40 [9]. Those features led the Court to say that referrals should not be made lightly or unthinkingly. It referred to Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12] and Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 at [9], including the principle that the Court should ordinarily be reluctant to refer a matter that appears to be without merit [9].
The Court did not undertake a final assessment of the judicial review grounds. It expressly declined to express a view on their merits, other than to observe that this was not a case evidently lacking in merit to the point of being inappropriate for referral [11]. The grounds were reasonably capable of being understood. The proceedings appeared relatively confined: they concerned identified decisions and a number of grounds of review already set out in the amended summons [11].
Efficiency also mattered, but was not decisive. The Court considered that legal assistance could help Mr Montenegro refine the case, if advice showed that it was viable. That could also assist the LPAB and the Court by making the issues clearer [10]. But the Court cautioned that the interests of justice include maintaining discipline in the allocation of referrals and sustaining the Pro Bono Panel scheme [10]. A referral that could be handled efficiently and productively was a factor favouring the application, because it reduced the uncertainty and burden associated with an open-ended commitment [11].
The decisive scope question was whether the referral should be for general “legal assistance” or for a specified, narrower task. UCPR r 7.37 allows the Court to specify the nature of the assistance [12]. Free JA considered that a referral for advice was more likely to be accepted than one requiring a barrister or solicitor to undertake representation. Advice could still help Mr Montenegro understand, refine and advance his claims if they were confirmed to be viable [13]. The Court declined to make preparation of an amended summons an express part of the referral. It observed that Mr Montenegro had shown an ability to draft documents that were reasonably intelligible, and that advice might enable him to give effect to any recommended changes himself [13].
The judgment applies existing procedural rules; it does not announce a new test for pro bono referrals or alter the statutory requirements for admission to the legal profession. The relevant statutory provisions, ss 16 and 19 of the Legal Profession Uniform Law (NSW), form part of the background to the underlying case. Free JA did not interpret those provisions or decide how they applied to Mr Montenegro [2].
The procedural framework in the judgment is UCPR rr 7.36-7.40. Rule 7.36(2) provides the listed considerations that the Court may take into account when deciding whether to refer a litigant. The judgment adds practical emphasis to the limited nature of the resource and the implications of a practitioner accepting a referral [9]. It also illustrates the use of r 7.37 to tailor the scope of assistance, rather than treating a referral as necessarily requiring full representation [12]-[14].
The judgment’s effect is therefore best understood as an application of the existing framework to particular circumstances. Mr Montenegro’s lack of means and limited capacity supported referral. The relatively confined and intelligible nature of the proceedings, and the absence of an obvious lack of merit, also supported it. The scarcity and sustainability concerns favoured defining the work narrowly. The resulting order was for advice, rather than full representation.
The Court also noted that Mr Montenegro had not received a referral in the preceding three years, so the additional condition under UCPR r 7.36(2A) was not engaged [8]. This was a case-specific point, not a ruling on the operation of that provision in other circumstances.
At [7], the Court summarised the matters available for consideration under r 7.36(2): the litigant’s means, capacity to obtain help outside the scheme, the nature and complexity of the proceedings, and any other appropriate matter. In plain English, the rules permit a contextual assessment rather than requiring the Court to rely on one factor alone.
At [9], the Court described pro bono assistance as “a valuable and scarce resource” that “should not be lightly dissipated”. This explains why financial need alone does not automatically result in a referral. The Court must also consider the likely demands on the practitioner and scheme, and whether the case is suitable for that limited resource.
At [10], the Court acknowledged that legal assistance could benefit the applicant, the respondent and the Court by helping refine the issues. It immediately qualified that point: efficient case management is not the only dimension of the interests of justice. The broader scheme and the careful allocation of referrals also matter.
At [11], Free JA stated that he was not expressing a view on the merits, except to observe that the case was not evidently so lacking in merit that referral would be inappropriate. The distinction is important. The Court applied a threshold relevant to whether assistance should be referred; it did not resolve the judicial review case or predict its outcome.
At [13], the Court chose a “more confined order” for advice. In practical terms, this meant that the referral did not itself require a barrister to conduct the proceedings, prepare an amended summons, or take on an undefined commitment. The judgment nevertheless recognised that advice could be valuable, and that a further referral might be considered later if representation became relevant.
The decision is relevant to applications for pro bono referral under UCPR r 7.36 where the applicant’s financial circumstances, ability to obtain outside assistance, and capacity to conduct the case are in issue. It shows that evidence about means and personal capacity can be material: here, the Court relied on Mr Montenegro’s affidavit evidence about employment, social security, concession status and disability [4], [7].
It is also relevant where a litigant has raised complex or legally demanding matters without representation, but the proposed case can be identified and contained. The Court considered that Mr Montenegro’s judicial review proceedings were reasonably confined and that the existing grounds were capable of being understood [11]. A matter need not be finally adjudicated as meritorious before a referral can be considered; the Court’s observation was narrower, namely that this case was not evidently inappropriate because it lacked merit [11].
The decision may be particularly relevant where a broad request for “legal assistance” would impose uncertain demands on a limited scheme. It demonstrates that the Court may define a smaller task, such as advice about proceedings, where that is likely to provide useful assistance while making the referral more manageable [12]-[14].
It should not be read as establishing that every self-represented litigant with limited means will receive a referral, or that a referral will include representation. The Court expressly weighed resource scarcity, the apparent scope of the case, and the possible burden on the practitioner [9]-[13]. The order here depended on the circumstances described in the judgment.
The judgment was delivered on 21 October 2025, and the supplied judgment contains no later decisions discussing or applying it. It is therefore not possible, on the material provided, to state how later courts have treated Montenegro.
The cases cited by Free JA are earlier authorities, not later treatment of this judgment. Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [10]-[13] and Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12] were identified as decisions discussing the nature of the Pro Bono Panel and the proper approach to referral applications [9]. Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 was cited for reluctance to refer matters appearing to be without merit, and for the possibility that a further referral for representation might be considered later [9], [13].
Accordingly, Montenegro records an application of principles drawn from those earlier cases. The text supplied does not establish whether it has since been followed, distinguished, or otherwise considered.
The judgment leaves the substantive judicial review issues unresolved. It does not determine whether the LPAB’s decisions of 18 June 2024 or 8 October 2024 involved procedural unfairness, bad faith, actual or apprehended bias, or legal error [2], [4]. Nor does it decide whether Mr Montenegro satisfies the statutory requirements for admission or readmission.
The Court also did not determine whether a subpoena to the Law Society would be appropriate or what documents might properly be sought. Mr Montenegro had deferred that request while the referral application was being considered. Free JA observed that a barrister’s advice could help assess whether a subpoena was appropriate and, if so, what material it should cover [5].
The practical scope of the referral was left to the operation of the existing scheme and to whether a barrister accepted the referral. The order was for advice only. The Court noted that advice might prompt amendments to the final amended summons, but did not include preparation of such a document within the order [13]. Whether later advice would lead to a request for representation, and whether a further referral would be appropriate, remained open. The judgment noted that the Court could consider a further referral later if necessary [13].
Finally, the decision does not specify how the general considerations in r 7.36 should be weighted in different factual settings. It provides a concrete example of balancing means, capacity, the apparent manageability of the case, threshold merit considerations and the sustainability of pro bono resources, but it does not prescribe a numerical test or a fixed hierarchy among those factors.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Montenegro v Legal Profession Admission Board [2025] NSWCA 233
Hearing dates: On the papers
Date of orders: 21 October 2025
Decision date: 21 October 2025
Before: Free JA
Decision: (1) Pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) the applicant is referred to the registrar for referral to a barrister on the Pro Bono Panel for the provision of advice in relation to the proceedings.
Catchwords: CIVIL PROCEDURE – Application for pro bono referral – Relevant considerations discussed – Referral confined to the provision of advice in relation to proceedings
Legislation Cited: Legal Profession Uniform Law (NSW), ss 16, 19
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.37, 7.38, 7.39, 7.40
Cases Cited: Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315
Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41
Category: Procedural rulings
Parties: Cesar Montenegro (Applicant)
Legal Profession Uniform Admission Board (Respondent)
Representation: Applicant (Self-represented)
Solicitors:
Crown Solicitor for NSW (Respondent)
File Number(s): 2024/405720
Publication restriction: Nil
FREE JA: By notice of motion filed on 7 October 2025, the applicant (Mr Montenegro) relevantly seeks an order pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) referring him to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for the provision of legal assistance in relation to the proceedings.
The substantive proceedings to which this application relates arise from Mr Montenegro’s unsuccessful attempts to obtain from the respondent (LPAB) a compliance certificate, under s 19 of the Legal Profession Uniform Law (NSW) (Uniform Law), for the purposes of obtaining admission (or, in his case, readmission) as a legal practitioner under s 16 of the Uniform Law. According to Mr Montenegro’s initiating process the LPAB made relevant decisions in this regard on 18 June 2024 and 8 October 2024. On 9 September 2025 Mr Montenegro filed a “final amended summons” in which he seeks to review and quash those decisions on various grounds, and relief extending to orders in the nature of mandamus requiring reconsideration of his applications by the LPAB and, more ambitiously, a declaration that he satisfies all the requirements for admission. The final amended summons raises a number of grounds going to the procedure adopted by the LPAB, including alleged bad faith, bias or apprehended bias and legal errors affecting the criteria applied, or erroneously not applied, by the LPAB.
The Council of the Law Society was previously a party to the proceedings, but was removed by order of Harrison JA on 2 October 2025.
In support of his application for an order for referral under r 7.36 of the UCPR Mr Montenegro relies on an affidavit that he affirmed on 7 October 2025. In his affidavit Mr Montenegro has expanded on his grounds of complaint about the validity of the decisions made by the LPAB, including to complain about perceived conflicts of interest because of the involvement of particular decision-makers and questions about the constitutional appropriateness of involving judicial officers in the process of decision-making. Mr Montenegro says that his claim raises complex and important issues that extend “well beyond” his personal capacity. He explains that he is not in full-time employment and cannot afford private representation. He is on social security and holds a pensioner’s concession card as a result of disabilities from which he suffers.
Mr Montenegro has also foreshadowed that he wishes to subpoena the Law Society to obtain what he says are relevant documents relating to the decision-making process that has been adopted. Although Mr Montenegro initially sought leave to issue such a subpoena as part of his notice of motion of 7 October 2025, he has since confirmed that he will not press that application pending the resolution of his request to be referred for pro bono assistance. This is a prudent course. If the referral occurs and there is a barrister prepared to accept the referral, one of the benefits of receiving such assistance would be to assist Mr Montenegro in deciding if it is appropriate to subpoena the Law Society and, if so, for what material.
The LPAB has indicated that it does not oppose Mr Montenegro being referred for assistance under r 7.36. Both parties requested that the application be dealt with in their absence, on the papers, and the Court has adopted that approach.
In considering whether to make an order for referral under r 7.36(1) the Court may take into account the matters specified in r 7.36(2), namely the means of the relevant litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter that the Court considers appropriate. In the present case the affidavit evidence of Mr Montenegro has demonstrated that he lacks the means to obtain legal advice and representation in respect of his matter. On the question of capacity Mr Montenegro has also properly and sensibly acknowledged that he has raised (or at least is seeking potentially to raise) issues that are beyond his capacity to deal with in an effective way.
Mr Montenegro has not been the subject of a referral within the last three years, so the additional condition that can apply under r 7.36(2A) is not engaged.
The nature of the Pro Bono Panel and the proper approach to be adopted in considering applications for referral have been the subject of a number of decisions of this Court: see, in particular, Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [10]-[13] and Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12] (Renshaw). One important consideration is that pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated: Renshaw at [11]. These concerns arise in circumstances where a solicitor or barrister who is prepared to accept a referral becomes subject to obligations under the rules (UCPR r 7.38) and can only cease to provide assistance when permitted to do so (UCPR rr 7.39 and 7.40). Referrals ought therefore not be given lightly or unthinkingly. One principle that emerges from these considerations is that the Court should ordinarily be reluctant to refer a litigant for legal assistance under r 7.36(1) in relation to a matter that appears to be without merit: Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 (Dafaalla) at [9].
Viewed narrowly in terms of the efficient conduct of the litigation, there is no doubt that it would be in the interests of justice for Mr Montenegro to receive legal assistance of one kind or another in circumstances where he has brought a challenge to the validity of LPAB decisions, but lacks the capacity on his own to advance that case. With the benefit of legal assistance, Mr Montenegro may well be in a position to refine his case, if it is otherwise considered with the benefit of advice to be viable. That outcome would be in his interests, the interests of the LPAB as the respondent and the Court in having to hear and determine the matter. That in itself is not determinative, particularly as the interests of justice have broader dimensions, which include maintaining discipline on the giving of referrals under r 7.36 and the sustainability of the Pro Bono Panel scheme.
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Montenegro
Legal Profession Admission Board [2025] NSWCA 233
The applicant was referred to the registrar for referral to a barrister on the Pro Bono Panel for the provision of advice in relation to the proceedings, pursuant to UCPR r 7.36(1). The order did not extend expressly to representation or preparation of an amended summons.
An important consideration in the present matter is that the issues sought to be raised by Mr Montenegro are relatively confined. The precise formulation of any claim is itself a matter that could change in light of any legal assistance provided, but as presently formulated the matter involves judicial review of identified decisions, with a number of grounds of review already raised. Without seeking to express any view about the merits of those grounds, beyond observing that this is not a case which is evidently lacking in merit to the point of being inappropriate for referral, they are reasonably capable of being understood. The significance of these factors is that they make this matter a reasonably contained one that may be dealt with relatively efficiently by a barrister who is prepared to accept a referral. While every referral involves a significant burden on the resources and goodwill of the profession, a factor favouring the present application is that there is a good prospect that it could be dealt with in a way that is reasonably efficient and productive. Importantly, accepting a referral to advise would not involve an open-ended and unpredictable commitment of time and resources. This improves the prospect of a referral being accepted. It also limits the extent of the burden on the scheme.
Mr Montenegro’s application seeks a general referral for “legal assistance”. I apprehend from his affidavit that Mr Montenegro would ideally like to be represented by a pro bono solicitor or barrister, and not merely have the benefit of their advice. Pursuant to r 7.37 of the UCPR the Court may make an order for referral of a more confined nature by specifying the nature of assistance to be provided.
In the circumstances of the present case, I am persuaded that it is in the interests of justice to make a more confined order, namely an order for referral for the provision of advice in relation to proceedings. That would occur in the context of the existing scheme which involves referral to the Bar Association for consideration by barristers who are members of the association. A referral of that contained nature may be more likely to be accepted by a barrister than a referral requiring them to commit to representation of Mr Montenegro. It is also likely to be of considerable value to Mr Montenegro in understanding, refining and advancing his claims, if they are confirmed to be viable. It may transpire from the provision of such advice that amendments to the “final amended summons” are required. However, I do not consider it to be in the interests of justice to make the preparation of such a document an express part of the referral. In adopting that approach I am mindful that Mr Montenegro has shown himself capable of drafting documents which are reasonably intelligible, and with the benefit of legal advice he may well be in a position to give effect to that advice. A referral to provide advice could potentially lead to an arrangement for pro bono representation, and if necessary the Court may give further consideration to an additional referral of that kind at a later point: Dafaalla at [14].
I am therefore satisfied that it is appropriate to order pursuant to r 7.36(1) of the UCPR that the applicant is referred to the registrar for referral to a barrister on the Pro Bono Panel for the provision of advice in relation to the proceedings.