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[2026] NSWCA 114
procedural. Leave was granted to rely on the amended notice of motion dated 11 June 2026. The superseded motion hearing was vacated, and the amended motion was listed for hearing on 29 June 2026 before the...
2 cited instruments linked from this judgment.
The Court did not decide whether the applicant should be allowed to subpoena Jennifer Ball. It considered that decision premature because the applicant’s proposed further amended summons had not been filed and the parties had not completed their evidence. The judge granted permission for the applicant to rely on the amended motion, moved its hearing to 29 June 2026, and left the costs question open.
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1,863 words · generated 07/10/2026
This is a short ex tempore procedural judgment by Griffiths AJA in Montenegro v Legal Profession Admission Board [2026] NSWCA 114. The substantive proceedings were listed for hearing on 11 August 2026. The immediate question was not the merits of those proceedings, but the timing and form of an interlocutory motion seeking permission to issue a subpoena.
The applicant, Cesar Montenegro, was not represented by a solicitor. His original motion, filed on 9 June 2026, sought leave under UCPR r 33.2 and/or r 7.3(1)(a) to issue a subpoena requiring Jennifer Ball, the former President of the Law Society, to attend and give evidence (paragraph 1). On 11 June, Montenegro submitted an amended motion containing four prayers for relief. The Court granted leave for him to rely on that amended motion after the respondent, the Legal Profession Admission Board, did not oppose that request (paragraph 2).
The respondent separately sought an adjournment of the motion hearing. Its stated concerns included that the subpoena application should not be decided before Montenegro filed a further amended summons in the substantive proceeding and before the parties completed their evidence. The respondent also said counsel previously briefed in the proceedings were unavailable for the hearing (paragraphs 8–9).
The judge proceeded with the adjournment application despite being told that Montenegro had reported illness and might not attend. There was no appearance by him when the matter was called. The judge nevertheless considered the nature of the application and the material provided, and decided to hear the adjournment request (paragraph 5).
The result was procedural. The 9 June motion was superseded and its hearing vacated. The amended motion was listed for hearing on 29 June 2026 before the Referrals Judge. The orders made on 3 June 2026 were otherwise confirmed, and costs of the adjournment application were reserved (paragraph 15).
The central reason was that the subpoena application could not be assessed properly on the procedural record then available. The applicant had leave to file a further amended summons by 17 June 2026, but had not yet done so. The parties also had time to file further evidence, with the respondent’s evidence due by 24 June 2026 (paragraphs 6–7, 12).
The judge accepted the respondent’s submission that the question of leave under UCPR r 7.3 could not properly be determined until the further amended summons and the parties’ evidence were available (paragraph 11). The judgment does not decide what the amended summons would say or what the evidence would establish. It explains why those materials mattered: the issues in the substantive proceedings would need to be understood by reference to the current pleadings, affidavits and legal principles, and some matters prompting the subpoena request might be addressed in the respondent’s evidence (paragraph 12).
The key procedural point appears in paragraph 13. The judge said it would not be appropriate to determine whether the subpoena had a legitimate forensic purpose without considering the proposed further amended summons and the evidence the parties might provide. This is the main reasoning supporting the adjournment. It does not establish that the subpoena was necessary or unnecessary, nor does it finally determine the legal test for issuing it.
The judge also considered prejudice. The substantive hearing was set for 11 August, and evidence was due by 24 June. In those circumstances, the judge did not see prejudice in deferring the motion until the relevant pleadings and evidence had been attended to (paragraph 14). The judgment gives no further account of any specific prejudice alleged by either party. Its conclusion is confined to the timetable and procedural circumstances before it.
The Court separately granted leave to rely on the amended motion because the respondent did not oppose that leave (paragraph 2). The decision to permit the amended motion and the decision to defer its hearing are distinct: the applicant could rely on the updated application, but it would be heard later.
The judgment does not describe a change in the law, compare competing authorities, or announce a new legal test for adjournments or subpoenas. It cites UCPR rr 7.3, 18.4 and 33.2. Its explanation of the subpoena question is procedural and case-specific: the Court should have the proposed further amended summons and the parties’ evidence before assessing whether the subpoena has a legitimate forensic purpose (paragraphs 11–13).
The decision therefore should not be read as changing the general law governing subpoenas. It records how the judge managed this particular application in light of an incomplete pleading and evidence timetable. The judgment does not set out the text of rr 7.3 or 33.2, and it does not explain the full requirements for obtaining leave under those rules. Any account of those requirements beyond what the judgment itself says would need to be checked against the rules and other legal sources.
The judgment also mentions UCPR r 18.4. Griffiths AJA observed that a respondent to a motion is entitled to three days’ notice after service before its hearing, unless the Court orders otherwise (paragraph 2). The judgment does not explain how that rule affected the adjournment decision, nor does it say that a breach of the notice period occurred. The judge introduced the point as incidental.
The practical procedural position after the orders was that the amended motion remained alive, but would not be heard on the date originally fixed. It was relisted for 29 June 2026, while the substantive hearing date of 11 August and the other orders made on 3 June remained in place (paragraph 15). No decision was made on the subpoena’s ultimate forensic purpose.
Paragraph 11: The judge accepted that the subpoena question could not properly be decided until the further amended summons and all parties’ evidence were available.
Plain-English translation: The Court wanted to know what issues the applicant was actually pursuing and what evidence each side would rely on before deciding whether the proposed witness summons served a proper purpose.
Paragraph 12: The respondent submitted that some matters concerning Montenegro’s reasons for seeking the subpoena might be addressed in its evidence. The judge accepted that the legal issues would need to be assessed by reference to the current pleadings, affidavits and legal principles.
Plain-English translation: The respondent’s evidence might change how the subpoena request looked. The Court considered it sensible to assess the request in the context of the case as it stood after pleadings and evidence were complete.
Paragraph 13: The judge said it would not be appropriate, in the existing state of affairs, to decide whether the subpoena had a legitimate forensic purpose without considering the proposed amended summons and the parties’ evidence.
Plain-English translation: The judge postponed the substantive question rather than deciding it on an incomplete record.
Paragraph 14: The judge did not consider that the parties would be prejudiced by deferring the motion until the other procedural steps had occurred.
Plain-English translation: Given the existing timetable, the judge considered there was time to hear the application later without disrupting the scheduled substantive hearing.
These passages should be read together. The adjournment was not based on a finding that the subpoena request lacked merit. The reasoning was that the relevant context for assessing it had not yet been assembled.
The judgment has a narrow procedural focus. Its reasoning may be relevant where a court is asked to determine a subpoena application before the pleadings have settled and before the parties’ evidence is complete, particularly where later evidence may address the stated reasons for seeking the subpoena. The specific combination here was an outstanding further amended summons, evidence still to be filed, and a substantive hearing scheduled for a later date (paragraphs 6–7, 11–14).
The judgment also records that the applicant was unrepresented and therefore sought leave to issue the subpoena (paragraph 1). However, the judge’s reason for deferring the hearing was not the applicant’s unrepresented status. It was the incomplete pleading and evidentiary record. The judgment does not establish a general rule that subpoena motions by self-represented parties should be delayed.
Nor does it decide that every subpoena application must await completion of all evidence. Its conclusion rests on the particular procedural state of this matter and the judge’s assessment that the parties would not be prejudiced by the deferral. The judgment contains no detailed discussion of circumstances in which an urgent subpoena application might properly be decided earlier.
For practitioners, the point supported by the text is one of sequencing: a proposed subpoena’s purpose may be difficult to evaluate before the issues and evidence in the proceeding are sufficiently clear. The decision does not identify a broader checklist or a universal threshold for adjournment.
The supplied judgment contains no discussion of later cases, and no later treatment can be established from its text. It cites no prior judicial decisions and does not refer to any subsequent judicial consideration. The judgment’s date is 15 June 2026, so this analysis makes no claim about later decisions outside the supplied material.
Within the judgment itself, the most defensible description is that it is a procedural ruling applying the available timetable and evidentiary circumstances to an interlocutory application. It does not purport to overrule, distinguish or follow any identified precedent. The precedent relationship field is therefore empty.
The judgment is also expressly categorised in its catchwords as concerning civil procedure, hearings and adjournment, with “No issue of principle”. That description is consistent with the restrained reasoning: the judge resolved the timing question without announcing a general principle of law beyond the procedural proposition expressed in paragraph 13.
The central unresolved issue is whether leave to issue the subpoena would ultimately be granted. The judge did not decide whether the proposed evidence from Ms Ball had a legitimate forensic purpose. That question was left for the later hearing after the pleadings and evidence were more complete (paragraphs 11–13).
The judgment does not set out the four prayers for relief in the amended motion. It also does not identify in detail the matters that caused Montenegro to seek the subpoena, the contents of his proposed further amended summons, or what evidence the respondent later filed. Those details may be relevant to the eventual assessment, but cannot be inferred from this ruling.
The judgment does not determine how the substantive proceeding will be decided, and it makes no finding about the reliability or admissibility of any prospective evidence from Ms Ball. It does not state whether the parties later complied with the timetable or whether the amended motion was heard on 29 June.
Finally, the costs of the adjournment application were reserved. The judgment does not allocate those costs or give reasons for a final costs outcome. The result is therefore a direction about the next procedural steps, not a decision on the merits of the subpoena request or the substantive proceeding.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
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 [2026] NSWCA 114
Hearing dates: 15 June 2026
Date of orders: 15 June 2026
Decision date: 15 June 2026
Before: Griffiths AJA
Decision: 1. Grant leave for the applicant to rely upon an amended notice of motion dated 11 June 2026 which contains four prayers for relief.
2. The hearing of the notice of motion filed on 9 June 2026 and now superseded by the amended notice of motion dated 11 June 2026 is vacated.
3. The amended notice of motion is listed for hearing on 29 June 2026 before the Referrals Judge.
4. The orders dated 3 June 2026 are otherwise confirmed.
5. Costs of the adjournment application are reserved.
Catchwords: CIVIL PROCEDURE — Hearings — Adjournment — No issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 7.3, 18.4, 33.2
Category: Principal judgment
Parties: Cesar Montenegro (applicant)
Legal Profession Admission Board (respondent)
Representation: Counsel:
S Johnston (respondent) (solicitor)
Solicitors:
NSW Crown Solicitor’s Office (respondent)
File Number(s): 2024/00405720
Publication restriction: Nil
GRIFFITHS AJA: By notice of motion originally filed on 9 June 2026 the applicant seeks leave pursuant to r 33.2 and/or r 7.3(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to issue a subpoena requiring Ms Jennifer Ball, the former President of the Law Society, to attend to give evidence in the substantive proceedings. The applicant requires leave to issue a subpoena to Ms Ball because the applicant is not represented by a solicitor. The substantive proceedings are listed for hearing on 11 August 2026.
On 11 June 2026 the applicant submitted to the Registrar for filing an amended notice of motion. The issue of leave to rely upon that document came before me this morning. The respondent did not oppose leave being granted, and I formally grant leave for the applicant to rely upon the amended notice of motion which is dated 11 June 2026. Incidentally, by r 18.4 of the UCPR the respondent to such a motion is entitled to three days’ notice after its service before the hearing of the motion unless the Court orders otherwise.
The respondent has made an oral application before me this morning, as foreshadowed to Mr Montenegro late last week, that it would seek to have the hearing of his amended motion adjourned.
The respondent relies on an affidavit affirmed by Ms Sally Johnston on 12 June 2026, and an outline of written submissions provided to me this morning, and which I am informed were provided to Mr Montenegro.
I was also informed by Ms Johnston that she received an email during the course of last night in which Mr Montenegro indicated that he had fallen ill and may not be able to attend. When the matter was called this morning there was no appearance by Mr Montenegro. But having regard to the nature of the application for an adjournment and the material that was provided to me, I determined to proceed with the adjournment application.
It is necessary for me to set out some procedural history. On 1 June 2026 the applicant emailed a copy of the original motion to the Registrar. On 3 June the substantive proceedings were listed for a directions hearing at which the Registrar made timetabling orders, including listing the matter for hearing on 11 August 2026 with an estimate of a half a day. Also, the applicant was directed to file and serve any further amended summons in the substantive proceeding, and any additional evidence by 17 June 2026. It is evident from the court file that the applicant had foreshadowed his intention to rely upon a further amended summons which raises additional grounds to those in his previous pleading, but to date that has not occurred. This has some significance for the timing of the hearing of his application for leave to issue a subpoena.
The orders made on 3 June 2026 also included an order for the respondent to file and serve any additional evidence by 24 June 2026.
As I mentioned, on 9 June 2026, the original motion was accepted for filing, and the motion was listed for hearing today by the Referrals Judge. Late last week, Mr Montenegro indicated that he wished to rely upon an amended notice of motion. On 12 June 2026, that is, last Friday, the respondent wrote to the Registrar requesting that the hearing of the motion be vacated for a number of reasons, including that it was not proper for it to be determined prior to Mr Montenegro filing the foreshadowed further amended summons and the parties also completing their evidence.
The respondent also relied upon the fact that neither of its counsel, who had previously been briefed in the proceedings, were available in respect of the motion before me today. The Registrar stood over the application for an adjournment to the hearing before me.
For the following reasons I consider that this is an appropriate case to stand over the hearing of the now amended motion to another day.
First, I accept the respondent’s submission that the question whether leave should be granted under r 7.3 of the UCPR to issue a subpoena to Ms Ball cannot be properly determined until after Mr Montenegro has filed his further amended summons and all his evidence, and also, after the respondent has filed its evidence.
It is indicated in the written submissions handed up by Ms Johnston today that there is a possibility that some of the matters which appear to be of concern to Mr Montenegro and which have caused him to seek leave to issue the subpoena may well be dealt with in the respondent’s evidence. I accept the respondent’s submissions that the legal issues in the proceeding will need to be determined with reference to the current pleadings, the affidavits and legal principles. This is important because, as I have already emphasised, Mr Montenegro has not yet filed the proposed further amended summons. He has leave, however, to do so by 17 June 2026, so there is still time available for him to do so.
Likewise, the timetabling envisages that the parties have an opportunity to file further evidence in the substantive proceedings. It would not be appropriate for the Court to determine in this state of affairs whether the subpoena has a legitimate forensic purpose without the Court having regard to the proposed further amended summons and the evidence to be provided by the parties should they wish.
Secondly, I do not see that the parties would be prejudiced by deferring the hearing and determination of the amended motion after these matters have been attended to. As I have mentioned, the substantive matter is listed for a hearing on 11 August 2026, and the parties’ evidence is due to be filed by 24 June 2026.
For these reasons, I make the following orders:
Grant leave for the applicant to rely upon an amended notice of motion dated 11 June 2026 which contains four prayers for relief.
The hearing of the notice of motion filed on 9 June 2026 and now superseded by the amended notice of motion dated 11 June 2026 is vacated.
The amended notice of motion is listed for hearing on 29 June 2026 before the Referrals Judge.
The orders dated 3 June 2026 are otherwise confirmed.
Costs of the adjournment application are reserved.
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Added space in catchwords.
Montenegro
Legal Profession Admission Board
Leave was granted to rely on the amended notice of motion dated 11 June 2026. The superseded motion hearing was vacated, and the amended motion was listed for hearing on 29 June 2026 before the Referrals Judge. The orders of 3 June 2026 were otherwise confirmed, and costs of the adjournment application were reserved.