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[2026] NSWCA 199
respondent. The further amended summons filed on 22 June 2026 was dismissed with costs.
The Court rejected the applicant’s challenges to the LPAB’s refusal to support his readmission. It held that the Board’s minutes did not have to provide a detailed account of meeting discussions, and that an omitted record of a conflict declaration did not by itself invalidate a decision. Ms Ball declared a conflict and abstained from discussion and voting; the Court saw no realistic risk that her presence affected the other members. The LPAB had considered the applicant’s self-represented legal activity, but was entitled to give it little weight. The summons was dismissed with costs.
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2,496 words · generated 08/10/2026
Cesar Montenegro applied for judicial review of two decisions of the Legal Profession Admission Board (LPAB). On 18 June 2024, the LPAB refused to issue him a compliance certificate needed for readmission to the Australian legal profession. On 8 October 2024, it refused his request to reconsider that refusal. The Court of Appeal dismissed his further amended summons with costs on 17 September 2026 ([1], [62]).
9 cited instruments linked from this judgment.
The background was a long-running readmission process. The judgment records that the applicant was admitted as a lawyer in December 2008 and removed from the Roll in December 2015, when the Court of Appeal also declared that he was not a person of good fame and character ([11], [15]). His first readmission application was refused in 2020. He made a second application in August 2022, which led to the decisions challenged here ([17]-[20]).
The legal framework made the LPAB the designated local regulatory authority for issuing compliance certificates. The Supreme Court could admit an applicant only if a current certificate had been provided, and an applicant had to satisfy the fit-and-proper-person requirement ([4], [8]). Rule 14(1)(d) of the Legal Profession Uniform Admission Rules 2015 (NSW) required a readmission application to set out the applicant’s law-related experience since removal from the Roll ([9]).
The applicant’s five grounds divided into two groups. Grounds 1 to 4 concerned Jennifer Ball, a Law Society-nominated LPAB member who declared a conflict in relation to the application. The applicant challenged both the way the conflict was handled and the adequacy of the minutes. Ground 5 alleged that the LPAB had failed to consider his law-related experience, including extensive self-represented litigation and advocacy ([2], [35]-[36]).
The February 2024 minutes recorded that Ms Ball declared an interest and abstained from discussion and voting ([19]). The June 2024 minutes recorded that she declared a conflict, and the LPAB adopted reasons refusing readmission ([20]). The October 2024 minutes did not record a conflict declaration. However, the LPAB Registrar’s affidavit said that Ms Ball had declared one at that meeting and abstained from discussion and voting, and that the omission was an error ([21], [23]-[24]).
The applicant was absent from the hearing on 11 August 2026. The Court proceeded after considering the circumstances and allowed further written submissions in accordance with directions. The judgment records that the applicant later filed written submissions and sought to tender further material, which the Court did not admit ([28]-[34]).
The Court’s analysis of the conflict grounds focused on the distinction between a defect in minutes and a defect in the conduct or validity of a decision. Schedule 3 cl 8 of the Legal Profession Uniform Law Application Act 2014 (NSW) required “full and accurate minutes” of LPAB proceedings. The Court read that obligation as requiring minutes to record every decision accurately, not to provide a comprehensive account of what occurred at each meeting ([41]).
The omission in the October minutes did not persuade the Court that the decision was invalid. The Registrar’s evidence was that Ms Ball had declared her conflict but the minutes failed to record it. The Court also noted that she had declared a conflict at earlier meetings. It rejected the suggestion that the State Records Act 1998 (NSW) imposed a different, more onerous minutes requirement for LPAB meetings ([41]).
The Court then applied the principle in Project Blue Sky Inc v Australian Broadcasting Authority: non-compliance with a statutory requirement does not automatically invalidate an act. The question is whether the legislation shows an intention that non-compliance should have that consequence. The Court discerned no such intention in Schedule 3. It said that validity depended on what occurred at the meeting, rather than simply on whether the minutes accurately recorded it ([51]). This reasoning meant that even an incomplete record was not, without more, enough to establish that the decisions were legally defective.
The Court also rejected the argument that the nature of Ms Ball’s conflict was so uncertain that the decisions could not stand. It considered it apparent that the conflict arose because Ms Ball was a Law Society executive member and the Law Society had made submissions concerning the application. The judgment says the conflict did not arise from a personal connection between Ms Ball and the applicant ([44]). It assumed in the applicant’s favour that she may have had some role in preparing or approving the Law Society submissions ([45]).
The Court considered whether Ms Ball needed to leave the room while the applicant’s matter was discussed. It concluded she did not. The LPAB’s policies did not require her to leave, and the Court saw no realistic possibility that her presence would inhibit discussion, cause other members to appease her, or affect the weight they gave to the Law Society’s views ([46]). The Court distinguished authorities involving decision-makers who had themselves opposed an application, participated in deliberations, voted, or held a more direct role in the dispute ([47]-[49]).
For apprehended bias, the Court used the fair-minded lay observer formulation associated with Ebner v Official Trustee in Bankruptcy. It concluded that such an observer, knowing the circumstances, would have no reason to think Ms Ball’s presence would affect the other LPAB members’ impartiality ([56]). On procedural fairness, it held that there was no need to invite submissions about the Board’s procedure where Ms Ball had declared her conflict, taken no part in discussion or voting, and no further action was required. The absence of apprehended bias was also material to that conclusion ([57]).
Ground 5 failed because the Court distinguished the obligation to provide information from the Board’s task of evaluating that information. Rule 14(1)(d) required the applicant to set out law-related experience. It did not prescribe the weight that experience had to receive ([60]). The LPAB’s reasons discussed the applicant’s self-represented litigation and explained why it considered that activity did not establish the kind of experience or character evidence it was seeking. The Court found that the LPAB had considered the material, rather than excluding it on an erroneous interpretation of the rule ([59]-[60]).
The judgment applied existing statutory interpretation and administrative-law principles to this particular LPAB process. It did not announce a new general rule that minutes are unimportant. Rather, it construed the specific obligation in Schedule 3 cl 8 and held that it required accurate records of decisions, not a detailed transcript of proceedings ([41]).
Before this decision, the statutory text already required full and accurate minutes, while the State Records Act imposed a general record-keeping obligation on public offices ([5]-[6]). The Court’s interpretation reconciled those provisions for LPAB meetings: the State Records Act did not create a more demanding minutes standard than the specific provision governing the LPAB ([41]).
The judgment also applied the approach in Project Blue Sky to the consequence of any breach. Its conclusion was not that statutory record-keeping requirements can never affect validity. Rather, invalidity depends on whether the statutory scheme discloses that consequence. On the provisions before it, the Court found no legislative purpose to invalidate a decision because the minutes failed to record a conflict declaration ([51]).
In relation to conflicts, the judgment did not establish that a conflicted member may always remain in the room. Its reasoning depended on the circumstances it identified: Ms Ball declared the conflict, did not participate in discussion or voting, and her presence was not realistically capable of inhibiting or influencing the other members. The decision therefore turns on the practical effect of presence and participation, not on a categorical rule that declaration and abstention always suffice ([46], [56]-[57]).
For r 14(1)(d), the decision clarifies that supplying information about law-related experience and the weight later given to it are distinct matters. The rule required the material to be set out, but the LPAB retained the task of assessing its significance in the readmission decision ([60]). The Court did not decide that self-represented litigation can never be law-related experience. It held that the LPAB had considered the experience in this case and could give it little weight for the reasons it provided ([59]-[60]).
The decision’s effect should accordingly be stated narrowly. It affirms that these particular minutes deficiencies and this particular treatment of the applicant’s experience did not establish reviewable error. It does not remove the statutory minutes obligation, determine all possible consequences of a conflict, or define an exhaustive test for law-related experience.
At [41], the Court said that full and accurate minutes need to record every decision accurately, but need not give a detailed record of everything that happened at each meeting. In plain English, the minutes must reliably capture the Board’s decisions, but the Court did not read this provision as requiring a verbatim or comprehensive account of discussion.
At [51], the Court said that the validity of the meeting and decisions depended on what occurred at the meeting, not on the accuracy of the minutes describing it. In plain English, the record may be evidence of what happened, but an error in the record is not itself proof that the underlying decision was invalid. The Court separately applied the statutory-purpose question from Project Blue Sky.
At [46], the Court explained that Ms Ball’s presence could not realistically have affected the other members’ assessment or inhibited their discussion. In plain English, the Court focused on whether her continued presence could practically influence the decision, rather than treating presence alone as decisive.
At [56], the Court concluded that a fair-minded observer would not think the other members might fail to bring impartial minds to the question because Ms Ball remained in the room. In plain English, the existence of a declared conflict did not establish apprehended bias where the member abstained and the surrounding circumstances did not indicate influence on colleagues.
At [57], the Court said there was no need to give the applicant an opportunity to make submissions on procedure where Ms Ball declared the conflict, did not participate, no further action was needed, and there was no reasonable apprehension of bias. In plain English, procedural fairness did not require a separate consultation about the Board’s internal handling in those circumstances.
At [60], the Court said r 14(1)(d) requires details of law-related experience, leaving the LPAB to decide what weight to give that material. In plain English, the rule requires disclosure of the experience, but does not guarantee that each kind of experience will be treated as persuasive or given substantial weight.
The judgment is most directly relevant where a statutory body’s minutes omit or incompletely record a conflict declaration, but evidence is available about what actually happened at the meeting. It indicates that the analysis should separate the statutory duty to keep minutes from the question whether the decision-making process itself was defective. The Court’s approach depended on the wording of Schedule 3 cl 8 and its conclusion that no legislative intention to invalidate decisions for the recording failure could be discerned ([41], [51]).
It is also relevant where a member declares a conflict, remains present, but does not discuss or vote on the affected matter. The Court considered whether presence could affect colleagues, stifle debate, or alter their assessment. Its conclusion rested on the absence of a realistic possibility of those effects, not merely on the fact of declaration ([46], [56]). Different facts, including active participation, advocacy for an outcome, voting, or a personal connection, may require a different analysis; the judgment distinguishes authorities involving such features ([44], [47]-[49]).
The decision may assist in analysing readmission rules that require applicants to disclose specified experience. It distinguishes a requirement to provide material from the decision-maker’s evaluation of its significance. Here the Board addressed the applicant’s self-represented litigation and explained its limited weight, which the Court regarded as consideration rather than exclusion ([59]-[60]).
The judgment is not a general approval of incomplete records or all conflict-management procedures. A lawyer examining another matter would need to compare the governing statute, the actual meeting conduct, the evidence about participation, the content of any reasons, and the particular mandatory considerations imposed by the applicable rules. Those are the features the Court treated as important in resolving these grounds.
The supplied judgment contains no information about decisions made after 17 September 2026 that considered or applied this judgment. Its later treatment therefore cannot be established from the material provided.
The judgment does refer to earlier proceedings in the applicant’s readmission litigation, including Montenegro v Legal Profession Admission Board [2025] NSWCA 220, Montenegro v Legal Profession Admission Board [2026] NSWCA 21, Montenegro v Legal Profession Admission Board (No 2) [2026] NSWCA 101, and Montenegro v Legal Profession Admission Board [2026] NSWCA 124 ([25]-[27]). Those decisions concerned the procedural history of these proceedings, including the transition to judicial review, a refused production application, review of that refusal, and the refusal of leave to subpoena Ms Ball. They are not later treatments of the present judgment.
The Court also discussed earlier authorities on conflicts and decision-making, distinguishing them because the facts involved more direct participation, advocacy, or influence than the circumstances before it ([47]-[49]). Project Blue Sky was applied to the consequences of statutory non-compliance ([51]); Ebner was cited for the apprehended-bias formulation ([56]); and CNY17 was referred to in the procedural-fairness discussion ([57]). These are the authorities identified in the supplied judgment, not evidence of subsequent treatment of this case.
The judgment does not determine what degree of detail may be required in LPAB records under other statutory provisions, or in other decision-making settings with different governing text. Its interpretation of “full and accurate minutes” is tied to Schedule 3 cl 8 and the LPAB context ([41]).
It also leaves open how the validity analysis would apply if the minutes omission were accompanied by evidence that a conflicted member participated, influenced discussion, or affected the decision. Here, the Court accepted evidence that Ms Ball declared the conflict and abstained from discussion and voting, and it found no realistic risk from her presence ([46], [56]-[57]).
The judgment does not set out a complete test for deciding what counts as “law-related experience” under r 14(1)(d). It decides only that the LPAB considered the applicant’s identified experience and was entitled to give it little weight on the reasons given ([59]-[60]). It does not establish how other forms of legal work, supervised activity, advocacy, or self-representation should be assessed in different applications.
Finally, the decision does not determine the merits of readmission. The proceedings concerned judicial review of the two LPAB decisions, and the Court’s conclusions were that the grounds advanced did not establish a basis to set those decisions aside. The order was dismissal of the summons with costs ([1], [62]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, 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 (No 4) [2026] NSWCA 199
Hearing dates: 11 August 2026, further written submissions received 26 August 2026, 2 September 2026 and 9 September 2026
Date of orders: 17 September 2026
Decision date: 17 September 2026
Before: Adamson JA; Ball JA; Price AJA
Decision: The further amended summons filed on 22 June 2026 be dismissed with costs.
Catchwords: LEGAL PRACTITIONERS – application for readmission – decision by Legal Profession Admission Board to refuse to issue compliance certificate – where conflict of interest declared by member of the LPAB at relevant meetings – whether decision of LPAB vitiated by the conflict of interest or alleged deficiencies in its recording – whether LPAB failed to consider the applicant’s “law-related experience”
Legislation Cited: Legal Profession Uniform Admission Rules 2015 (NSW), ss 11, 12, 14, 15, 16, 17, 18, 19, 20, 28, 29
Legal Profession Uniform Law 2014 (NSW), ss 16, 17, 19, 26
Legal Profession Uniform Law Application Act 2014 (NSW), s 19, Sch 3 cl 8
State Records Act 1998 (NSW), s 12
Supreme Court Act 1970 (NSW), ss 46, 69
Cases Cited: Carver v Law Society of NSW (1998) 43 NSWLR 71
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Cooper v Wilson [1937] 2 KB 309
Council of the Law Society of New South Wales v Montenegro [2016] NSWCA 211
Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586
Montenegro v Law Society of New South Wales [2015] NSWSC 867
Montenegro v Legal Profession Admission Board [2025] NSWCA 220
Montenegro v Legal Profession Admission Board [2026] NSWCA 21
Montenegro v Legal Profession Admission Board (No 2) [2026] NSWCA 101
Montenegro v Legal Profession Admission Board [2026] NSWCA 124
Montenegro v Prothonotary of the Supreme Court of New South Wales [2016] HCASL 36
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190
R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53
Category: Principal judgment
Parties: Cesar Montenegro (Applicant)
Legal Profession Admission Board (Respondent)
Representation: Counsel:
Litigant in Person (Applicant)
C Tran with E Kneebone (Respondent)
Solicitors:
Crown Solicitor for NSW (Respondent)
File Number(s): 2024/405720
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The Legal Profession Admission Board (LPAB) is the designated local regulatory authority for issuing compliance certificates under s 19 of the Legal Profession Uniform Law 2014 (NSW). To be admitted, or re-admitted, to the legal profession, an applicant must apply to the LPAB for a compliance certificate. Rule 14(1)(d) of the Legal Profession Uniform Admission Rules 2015 (NSW) (Admission Rules) requires that an applicant for readmission must set out “the applicant’s law-related experience since the applicant’s name was removed from that roll”.
The applicant was admitted as a lawyer of the Supreme Court in 2005. In 2015, the Court of Appeal ordered that the applicant be removed from the roll and declared that he was not a person of good fame and character. In 2017, the applicant made an application to the LPAB for a compliance certificate, which was refused. In 2022, the applicant made a further application for a compliance certificate, which the LPAB refused at a meeting on 18 June 2024. On 8 October 2024, the LPAB refused a request by the applicant that it reconsider its decision to refuse to issue a compliance certificate.
The applicant sought review of the LPAB’s decisions of 18 June 2024 and 8 October 2024 under s 69 of the Supreme Court Act 1970 (NSW). The applicant challenged the decisions on grounds relating to: (1) a conflict of interest declared by Ms Jennifer Ball, the then Senior Vice President of the Law Society of NSW and member of the LPAB who was present at the time the decisions were made, and (2) an alleged failure by the LPAB to consider the applicant’s “law-related experience” following his removal from the roll, including “extensive self-represented litigation and advocacy”.
The Court (Adamson JA; Ball JA; Price AJA) held, dismissing the applicant’s summons with costs:
The conflict of interest
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, applied.
“Law-related experience”
THE COURT: By a further amended summons filed on 22 June 2026, the applicant, Mr Cesar Montenegro, seeks judicial review of two decisions of the Legal Profession Admission Board (the LPAB). In the first decision, made on 18 June 2024, the LPAB refused to issue a compliance certificate to the applicant under s 19 of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law). In the second decision, made on 8 October 2024, the LPAB refused the applicant’s request that it reconsider its earlier decision. The effect of the decisions was relevantly to refuse the applicant’s application for readmission to the legal profession, following his removal from the Supreme Court Roll of Lawyers in 2015 and the refusal by the LPAB of a previous application for readmission made in 2017.
The applicant challenges the decisions on five grounds. Four of the grounds relate to a conflict of interest declared by Ms Jennifer Ball, the then Senior Vice President of the Law Society of NSW (Law Society) and member of the LPAB who was present at the time the decisions were made, which is said to affect the validity of the decisions. The fifth ground alleges that the LPAB failed to consider the applicant’s “law-related experience” following his removal from the Roll.
Before dealing with the substance of the application, it is convenient to say something about the LPAB and the relevant statutory framework.
The Supreme Court may admit an individual to the Australian legal profession as an Australian lawyer, but only if (among other things) the designated local regulatory authority has provided the Supreme Court with a current compliance certificate in respect of the person: Uniform Law, s 16(1)(a). The LPAB, a corporation constituted by s 19 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), is the designated local regulatory authority for issuing compliance certificates under s 19 of the Uniform Law: s 11.
The LPAB consists of 11 members, the Chief Justice of New South Wales, three judges of the Supreme Court nominated by the Chief Justice, the Attorney General or a person nominated by the Attorney General, two persons nominated by the Council of Australian Law Deans being members from New South Wales, two barristers nominated by the Bar Council and two solicitors nominated by the Law Society Council: see Application Act, Sch 3. Ms Ball was, at the relevant time, a member nominated by the Law Society Council. The LPAB holds meetings six times a year. Schedule 3 of the Application Act relevantly provides:
3 General procedure
The procedure for the calling of meetings of the Admission Board and for conduct of business at those meetings is, subject to this Act, to be as determined by the Board.
4 Quorum
The quorum for a meeting of the Admission Board is 6 members including the member presiding at the meeting.
…
7 Voting
A decision supported by a majority of the votes cast at a meeting of the Admission Board at which a quorum is present is the decision of the Board.
8 Minutes
The Admission Board is to cause full and accurate minutes to be kept of the proceedings of each meeting of the Board.
A similar obligation to cl 8 is imposed by s 12(1) of the State Records Act 1998 (NSW), which provides that a public office “must make and keep full and accurate records of the activities of the office”.
The LPAB has published a Document entitled “Managing conflicts of interest in the LPAB”. It relevantly provides:
- Members of the Board, its Committees and Sub-Committees should disclose any conflict of interest relating to a matter which is presently before, or is anticipated to come before, that body. A member may do so in the context of a meeting of the Board or the relevant Committee or Sub-Committee, by verbally announcing and describing the conflict.
- The member should generally abstain from voting in any decision relating to a matter in which there is a conflict. The Secretary of the body, who is usually an employee of the Board, should ensure the conflict is recorded in the meeting minutes. The Chair of the body should determine any other action which may be necessary.
(2) In considering whether a person is a fit and proper person to be admitted to the Australian legal profession—
(a) the designated local regulatory authority may have regard to any matter relevant to the person’s eligibility or suitability for admission, however the matter comes to its attention; and
(b) the designated local regulatory authority must have regard to the matters specified in the Admission Rules for the purposes of this section.
Part 3 of the Admission Rules sets out requirements for applications for compliance certificates. Under r 12, an application for a compliance certificate must be made by statutory declaration in a form determined by the LPAB and include any documents required by the Admission Rules, including evidence of the applicant’s qualifications (r 15), statutory declarations from other persons as to the applicant’s character (r 16), a disclosure statement (r 17), a report of the applicant’s criminal history in Australia (r 18), a student conduct report (r 19), or a certificate of good standing if the applicant has been admitted to the legal profession in another jurisdiction (r 20). Under r 14, an application for a compliance certificate by a person whose name has previously been removed from the Roll must, in addition to meeting the requirements of r 12, set out among other things “the applicant’s law-related experience since the applicant’s name was removed from that roll”: r 14(1)(d).
Under r 29 of the Admission Rules, the LPAB can review, vary or set aside any of its decisions (including a decision to refuse to issue a compliance certificate). Moreover, s 26(1) of the Uniform Law confers on the applicant an appeal as of right to the Supreme Court against the LPAB’s refusal to issue a compliance certificate. That appeal “is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the designated local regulatory authority may be given on the appeal”: s 28(1). In determining the appeal, the Supreme Court may make “any order it considers appropriate”: s 26(4). However, as is apparent from what has already been said, the applicant has chosen not to exercise that right but instead has sought judicial review of the LPAB’s decisions under s 69 of the Supreme Court Act 1970 (NSW).
The applicant was admitted as a lawyer of the Supreme Court on 5 December 2008. His application for admission disclosed previous criminal offending, the details of which are set out in this Court’s reasons in Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 (Removal Judgment).
The applicant held practising certificates issued by the Law Society until 30 June 2014. On 7 August 2014, he applied to the New South Wales Bar Association (Bar Association) for a barrister’s practising certificate. The Council of the Bar Association (Bar Council) rejected that application, as it was not satisfied the applicant was a fit and proper person. The grounds for that decision related to (1) what the Bar Council regarded as the inadequacy of the disclosures made by the applicant to the LPAB, the Law Society, and the Bar Council in relation to the applicant’s criminal convictions, (2) the applicant obtaining a driver’s licence in another name to permit him to drive if his driver’s license was cancelled, and (3) the applicant holding himself out as a barrister on a social media site over a period of six days whilst his application for a practising certificate was pending.
Instead of appealing from the Bar Council’s decision, the applicant applied to the Law Society for a practising certificate for the year ending 30 June 2015, disclosing that his application to the Bar Association had been refused.
On 15 January 2015, the Law Society rejected the applicant’s application for a practising certificate. On appeal by the applicant to the Supreme Court, the Law Society’s decision was set aside by Campbell J on 2 July 2025. Campbell J declared that the applicant was a fit and proper person to hold a restricted local practising certificate subject to the following conditions:
(a) The [applicant] undertake and complete to the satisfaction of the Council [of the Law Society] further legal education and training in the standards of professional conduct and ethics required of Australian lawyers;
(b) The [applicant] undertake and complete a period of supervised legal practise as specified by the Council; and
(c) Requiring the [applicant] to undergo counselling or medical treatment to assess and address the question of alcohol abuse and to provide evidence to the Council of compliance with this condition.
See Montenegro v Law Society of New South Wales [2015] NSWSC 867.
On 18 December 2015, on application by the Prothonotary of the Supreme Court, this Court ordered that the applicant be removed from the Roll and declared that he was not a person of good fame and character: see Removal Judgment. The applicant sought special leave to appeal to the High Court, which was refused on 6 April 2016: see Montenegro v Prothonotary of the Supreme Court of New South Wales [2016] HCASL 36.
Although the Law Society had applied for leave to appeal from the orders made by Campbell J, its application was rendered inutile by the applicant’s removal from the Roll. In that context, the application for leave to appeal from the decision of Campbell J was dismissed by Meagher and Leeming JJA on 16 August 2016: see Removal Judgment at [23]-[25] and Council of the Law Society of New South Wales v Montenegro [2016] NSWCA 211.
On 26 August 2022, the applicant made a further application for a compliance certificate (the second readmission application). Consideration of the application was delayed because of the need to obtain comment from the Bar Association and the Law Society, and a significant amount of ongoing disclosure provided by the applicant in 2022 and 2023. On 6 September 2023, the LPAB wrote to the applicant requesting further information in relation to the second readmission application, in response to which the applicant provided statutory declarations dated 14 September 2023 and 18 September 2023.
The second readmission application was discussed at an LPAB meeting on 6 February 2024. The minutes of that meeting relevantly record the following:
12 Applications for readmission as a lawyer
RESOLVED to:
- defer, until the next Board meeting on 23 April 2024, consideration of the application of Cesar MONTENEGRO pending its possible refusal of the application,
- approve the draft letter inviting Mr Montenegro to provide further submissions to the Board in respect of matters of concern to the Board regarding his application,
- request that the Legal Officer prepare draft recommended reasons in respect of the application, and
- appoint a Sub Committee to review the draft Reasons prepared by the Legal Officer.
(Agenda p. 1,578)
RESOLVED to note that Ms Jennifer Ball declared an interest in this matter and abstained from discussing and voting on this matter.
16.4 Application for readmission – Cesar Montenegro – Draft Reasons for Refusal
RESOLVED to:
- note that Jennfier Ball declared a conflict of interest in this matter
- adopt the Reasons and refuse the application for readmission of Cesar MONTENEGRO.
(Supplementary Agenda p. 1,451)
According to an affidavit filed on 26 June 2026 by Mr Jerry Riznyczok, the Executive Officer and Registrar of Public Notaries of the LPAB, who was present at the meetings, Ms Ball remained in the room while the applicant’s matter was discussed but abstained from voting on and discussing the applicant’s matter.
By correspondence between 25 June and 8 July 2024, the applicant requested that the LPAB reconsider its decision to refuse to issue a compliance certificate.
At a meeting on 8 October 2024, the LPAB decided to refuse the applicant’s application to review the June 2024 Decision (the October 2024 Decision). The minutes of the meeting make no reference to Ms Ball declaring any conflict of interest, but in his affidavit, Mr Riznyczok explains this was an error. According to Mr Riznyczok, Ms Ball was present, declared a conflict of interest, and abstained from voting on and discussing the applicant’s matter. The LPAB issued reasons, in which it conceded “a number of factual errors or inaccuracies” in the reasons for the June 2024 Decision, but said that the applicant had not identified any error in those reasons or raised any other matter that would change its determination.
Mr Riznyczok also explains in his affidavit that at each meeting, no one enquired as to the reason for Ms Ball’s conflict, and Ms Ball did not disclose the nature of the conflict.
The applicant commenced these proceedings on 28 October 2024, initially as an appeal against the LPAB’s decisions. Later he gave notice of his intention to seek judicial review and filed an amended summons: see Montenegro v Legal Profession Admission Board [2025] NSWCA 220.
On 15 January 2026, the applicant filed a notice of motion in which he sought, among other things, orders for the production of documents from the LPAB relating to the applicant’s readmission applications (including minutes of meetings, agendas, draft reasons, briefing materials and attachments), and an order that the LPAB provide information as to the factual matters said to give rise to Ms Ball’s conflict of interest and when the conflict of interest was first identified. This application was refused by Stern JA on 5 March 2026: see Montenegro v Legal Profession Admission Board [2026] NSWCA 21. An application for review of the decision of Stern JA was dismissed by Mitchelmore, McHugh and Free JJA on 1 June 2026: see Montenegro v Legal Profession Admission Board (No 2) [2026] NSWCA 101.
The applicant subsequently sought leave to issue a subpoena requiring Ms Ball to attend to give evidence at the hearing of the proceedings. On 2 July 2026, Free JA refused that leave on the basis that the factual position in relation to Ms Ball’s involvement or lack of involvement in the meetings on 18 June and 8 October 2024 had been clarified by the affidavit of Mr Riznyczok: see Montenegro v Legal Profession Admission Board [2026] NSWCA 124.
The matter was listed for hearing on Tuesday, 11 August 2026. On Saturday, 8 August 2026, the applicant made an application to the Registrar to appear by audio visual link (AVL) on the basis that he was located “more than 20km away from the Supreme Court Registry”. That application was refused on Monday, 10 August 2026 at 2.02 pm. Some ten minutes later, at 2.18 pm, the applicant sent the Registrar an email asking for an urgent reconsideration of his application to appear by AVL on the basis that “I am a person with significant disabilities affecting my mobility and capacity to travel. I am currently unwell and I am medically unable to attend the Court physically tomorrow”. In the alternative, the applicant sought an adjournment and said that “[t]here are also outstanding interlocutory matters which I intend to seek leave to raise, including an application under s 46(4) of the Supreme Court Act 1970 (NSW) concerning the refusal of the Jennifer Ball subpoena application, leave to cross-examine Mr Riznyczok, and the evidentiary matters previously notified to the respondent”.
In support of the application, the applicant attached three medical reports dated 19 April 2026, 11 May 2026 and 13 July 2026 from his General Practitioner, Dr Chingching Zhao, each of which was addressed to “To Whom it May Concern”. The first two said that at the time the applicant “will not be able to attend court in person or via audiovisual link”. The third was in the following terms:
Mr Cesar Montenegro has been a regular patient of mine for many years. He has chronic medical conditions of idiopathic allergic reactions and axonial neuropathy. His conditions involve exacerbations of an unpredictable nature, with unknown triggers and are difficult to treat.
These exacerbations include migraine, photophobia, severe swelling of the face, severe leg pains. There are medications that help reduce the symptoms, but they do not completely control or resolve these symptoms.
There has been no way to reduce, control or predict the frequency of his exacerbations. Due to the unpredictable and uncontrollable nature of his symptoms, Cesar is unfit for interstate travel.
It is unlikely that his condition will improve. Therefore, Cesar will likely not be able to travel interstate now or in the future.
The applicant sent a series of further emails to the Court that day. One, sent at 2.41 pm, attached a draft notice of motion seeking review of the orders made by Free JA on 29 June 2026. A second, sent at 2.44 pm, attached a draft notice of motion seeking leave to cross-examine Mr Riznyczok together with a supporting affidavit, which among other things attached a notice to admit facts dated 28 July 2026 addressed to the respondent and the respondent’s notice disputing facts dated 29 July 2026. A third, sent at 3.17 pm, attached a draft notice of motion seeking leave to issue a subpoena to the Law Society of NSW and vacation of the hearing “with that date retained for determination of the Applicant’s interlocutory applications and directions”. A fourth, sent at 3.22 pm, attached an affidavit in support of the unfiled motion seeking vacation of the hearing date. Other emails, including an email sent at 3.56 pm, pressed the Court for a response to the applicant’s request that it reconsider his application to appear by AVL.
At 4.05 pm, the Registrar sent the applicant an email stating that “As previously advised, your attendance, in-person, is expected when the Hearing commences at 10.15 AM tomorrow, 11 August 2026”. The Court received further emails from the applicant at 4.44 pm, 5.33 pm and 5.42 pm dealing with the same issues.
At 5.37 am on 11 August 2026, the applicant sent an email to, among others, the presiding judge’s Associate stating:
I have fallen severely ill and unable to attend. Please vacate the hearing on medical grounds. I will be filing medical evidence on Thursday when my treating doctor is next available. Apologies for [sic] inconvenience.
As there is no proper application for adjournment before the Court and no sworn evidence from a medical practitioner of your indisposition, the Court may be minded to proceed with the hearing today in accordance with prior directions of the Court. If it does so, the Court will take into account the written submissions and material which you have provided, in so far as they have been filed with the Court.
As explained earlier, grounds 1 to 4 broadly relate to the conflict of interest declared by Ms Ball. Ground 1 alleges that the LPAB “failed to comply with statutory and procedural requirements” in relation to recording and dealing with the conflict of interest. Ground 2 alleges that, because Ms Ball declared a conflict of interest on 18 June 2024 and was present on 8 October 2024, “the decisions were made, or materially affected, by a decision-maker whose participation was not shown to have been lawfully constituted”. Ground 3 alleges a failure by the LPAB to “maintain a record sufficient to demonstrate that the impugned decisions were made by a lawfully constituted Board and in accordance with required statutory procedures”. Ground 4 alleges that the decisions “were affected by apprehended bias and were made in denial of procedural fairness”, in circumstances where the nature of the conflict is not disclosed.
Ground 5 is in the following terms:
5 Failure to Consider Mandatory Relevant Considerations under rule 14(1)(d) of the Legal Profession Uniform Admission Rules 2015 (NSW)
The LPAB failed properly to consider the Applicant's law-related experience within the meaning of rule 14(1)(d).
Particulars
The LPAB treated supervised legal employment, referee reports and Lenehan-type evidence as necessary or effectively determinative indicators of law-related experience. In doing so, the LPAB failed properly to consider whether the Applicant's post-removal legal work, including extensive self-represented litigation and advocacy, constituted law-related experience within the meaning of rule 14(1)(d), or otherwise approached the requirement on an erroneous basis.
Before addressing grounds 1 to 4 raised by the further amended summons individually, it is desirable to say something about what appears to be the gravamen of these grounds. The applicant’s case appears to be that neither the minutes of the relevant meetings of the LPAB nor any of the other material before the Court identifies the nature of Ms Ball’s conflict, with the result that it is impossible to know whether it was dealt with appropriately. That is particularly so in circumstances where Ms Ball remained present at the meeting where the applicant’s application was discussed and voted on. That problem is said to be compounded by the fact that the minutes give no information about how the conflict was handled or how the relevant decision was reached. It is also said to be compounded by the fact that the minutes of the meeting on 8 October 2024 make no reference to Ms Ball declaring a conflict of interest.
Several themes underlie the applicant’s complaints. One is that the minutes themselves fail to comply with Sch 3, cl 8 of the Application Act and s 12 of the State Records Act and cannot be relied on because they do not disclose how each decision was arrived at and in one case failed to disclose that Ms Ball had declared that she had a conflict of interest. A second is that the Court should not necessarily accept Mr Riznyczok’s evidence because that evidence cannot be a substitute for the failure to keep proper minutes and cannot be relied on where the applicant was not given an opportunity to cross-examine Mr Riznyczok. A third is that without knowing the nature of the conflict, it is impossible to know whether it was handled appropriately.
None of these submissions can be accepted.
The requirement that the LPAB keep “full and accurate minutes” must be understood as a requirement that the minutes record every decision made by the LPAB and that they do so accurately. It is not a requirement that the LPAB keep a detailed record of what occurred at each meeting. The only respect in which it could be said that the minutes failed to comply with Sch 3, cl 8 is their failure to disclose Ms Ball’s declaration of a conflict of interest at the meeting on 8 October 2024. But nothing turns on that. Ms Ball had declared her conflict of interest on two previous occasions. Mr Riznyczok’s evidence is that she did declare her conflict of interest at that meeting and that it was simply an oversight that the minutes do not record that fact. That one instance is not a reason for casting doubt on the accuracy of the other minutes. And the State Records Act should not be interpreted as imposing a different and more onerous requirement in relation to minutes of meetings of the LPAB than Sch 3, cl 8.
As to the second point, it was open to the applicant to attend court and to make an application to cross-examine Mr Riznyczok. He did not do so. He says that he was too ill to attend court, but he never sought to provide an affidavit from his medical practitioner supporting that contention. Nor has he ever sought to explain what could have been achieved by cross-examining Mr Riznyczok. The minutes record, and Mr Riznyczok gives evidence, that he was present at each of the meetings. Mr Riznyczok’s evidence was largely formal in nature. This is not a case where there was a genuine dispute about what occurred at the meeting. The fact that the applicant was not present at the meeting and consequently cannot know what happened at it does not itself mean that there is a dispute about what occurred at the meeting that could only fairly be resolved by permitting the applicant to cross-examine Mr Riznyczok.
President Ball declared an interest in the Applicant’s matter on 6 February 2024 and a conflict of interest on 18 June 2024. No record has been produced identifying the nature of the conflict, the circumstances giving rise to it, any inquiry into or assessment of the conflict, any decision concerning its management, any consideration of whether President Ball should be excluded from participation, any Disclosure Management Form, any conflict register entry, or any record demonstrating implementation of conflict management measures.
President Ball declared an interest in the Applicant’s matter on 6 February 2024 and a conflict of interest on 18 June 2024. The nature of that conflict remains unknown. President Ball was recorded as present during the LPAB’s consideration of the Applicant’s matter, including on 8 October 2024. No record has been produced identifying the basis on which President Ball’s participation was assessed, managed or permitted.
President Ball declared an interest in the Applicant’s matter on 6 February 2024 and a conflict of interest on 18 June 2024. The nature of the conflict remains unknown. No record has been produced identifying the nature of the conflict, the circumstances giving rise to it, any inquiry into the conflict, any assessment of the conflict, any determination as to whether President Ball should be excluded from participation, any conflict management decision, any Disclosure Management Form, any conflict register entry, or any record demonstrating implementation of conflict management measures. The LPAB’s records do not disclose how the conflict was managed, whether it was capable of management, whether recusal was required, or the basis upon which any participation was permitted. The minutes also do not disclose full and accurate particulars of the Board’s decision-making process concerning the conflict or President Ball’s participation. President Ball was recorded as present during the LPAB’s consideration of the Applicant’s matter, including on 8 October 2024.
The ground itself is a complaint of a reasonable apprehension of bias or a denial of procedural fairness. How the particulars support either of those contentions is not entirely clear. So far as a reasonable apprehension of bias is concerned, the suggestion appears to be that there was a reasonable apprehension of bias because, paraphrasing the test stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], a fair-minded lay observer might reasonably apprehend that the members of the LPAB might not bring an impartial mind to the resolution of the question whether to issue a compliance certificate to the applicant because Ms Ball remained in the meetings notwithstanding her declared conflict. For the reasons already explained, a fair-minded observer knowing the facts would not reach that conclusion because there was no reason to think that Ms Ball’s presence in the room would affect the decision of other members of the LPAB.
As to the question of procedural fairness, the applicant’s case appears to depend partly on the fact that the minutes of the 8 October 2024 meeting do not record that Ms Ball disclosed her conflict. However, as has already been explained, the minutes were inaccurate in that respect. The applicant also suggests that it was a denial of procedural fairness for the LPAB not to give him an opportunity to make submissions on Ms Ball’s declaration of a conflict and the consequences that should follow from that. However, in circumstances where Ms Ball declared her conflict, where she did not participate in the decision, where there was nothing further she or the other members of the LPAB needed to do, and where there was no reasonable apprehension of bias, there was no need for the LPAB to give the applicant an opportunity to make submissions on the procedures to be followed by the board: cf CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [102] per Nettle and Gordon JJ.
Ground 5 falls into a different category. The applicant contends that ground 5 raises an error of law because the LPAB proceeded on a wrong construction of r 14(1)(d) of the Admission Rules, which requires an application for readmission to set out the applicant’s “law-related experience since the applicant’s name was removed from that roll”.
This ground proceeds on a misunderstanding. The LPAB dealt with the law-related experience referred to by the applicant since his name was removed from the Roll in its reasons for the June 2024 Decision in the following terms:
214 In the nearly four years since the June 2020 refusal of his first readmission application, Mr Montenegro spent the first three years either pursuing his appeal in the Supreme Court in respect of the Board's June 2020 decision to refuse his first readmission application or, when not unwell due to his medical condition, pursuing, self-represented, the various court proceedings commenced by him against his family.
215 While, as noted above, the Board takes no position in respect of the rights or wrongs of his pursuing this self-represented litigation, it notes that such pursuit has deprived Mr Montenegro of the opportunity to obtain acceptable 'law-related experience', including his ability to finalise an application to the Law Society (which he did not lodge until March of 2022) for permission to work as a lay associate pursuant to s.121 of the Uniform Law. This is, the Board noting that, as noted in its June 2020 reasons for refusing his first readmission application, he only first sent an email to the Law Society on 9 March 2020 seeking information regarding permission to work as a lay associate, some five years after his first being removed from the Roll.
216 As was indicated by the Board in respect of its refusal of his first readmission application, while the conduct of proceedings self‑represented may to an extent demonstrate legal skill it does not of itself provide proof of the "law-related experience" envisaged by Rule 14 (1)(d) of the [Admission Rules].
217 This is because the Board understands that this rule was intended to allow demonstration, usually by referee reports from supervisors of an applicant's 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 that the applicant is a fit and proper person to be re-admitted to the profession. This is also noting that although Mr Montenegro's competence as a legal practitioner was not the basis for his original removal from the Roll, the absence of accountability to anyone else in the application of his skills in those proceedings does not allow any conclusion to be drawn as to whether a different view should now be taken as to his character.
218 Further, it is noted that a lawyer who is acting for someone else in [a] proceeding has different obligations to the Court than in circumstances where they are acting for themselves.
Whether the LPAB was correct about the purpose of r 14(1)(d) does not matter. The rule simply requires an applicant to provide details of any law-related experience, leaving it to the LPAB to consider what weight it should place on that material in considering the application. In this case, the LPAB considered the information provided by the applicant. It did not exclude it based on the purpose it attributed to the rule. The LPAB gave that experience little weight for the reasons it gave. There was no error, let alone an error of law, in discounting the significance of that experience for those reasons.
Accordingly, this ground must fail.
**********
Montenegro
Legal Profession Admission Board (No 4)
[2000] HCA 63
[2026] NSWCA 101
[2026] NSWCA 124
[2016] HCASL 36
[1980] HCA 13
(1998) 43 NSWLR 71
(2019) 268 CLR 76
(1910) 10 CLR 243
(2000) 205 CLR 337
(1998) 194 CLR 355
(1980) 144 CLR 13
(1995) 4 Tas R 411
(1972) 128 CLR 509
The further amended summons filed on 22 June 2026 was dismissed with costs.
Mr Riznyczok’s evidence was led principally to prove two points. The first is that Ms Ball did declare a conflict of interest at the meeting on 8 October 2024. The second is that the LPAB normally makes decisions unanimously, and only if a member dissents is that fact specifically recorded. Both propositions are entirely plausible.
As to the third point, it appears plain on the facts that Ms Ball’s conflict arose from the fact that the Law Society, of which she was an executive member, made submissions on whether the LPAB should issue a compliance certificate and as a member of the LPAB she was required to make an objective determination of whether the applicant satisfied the requirements for the issue of such a certificate. It did not arise because of any personal connection between Ms Ball and the applicant, since if such a connection existed the applicant would have been able to lead evidence of it.
It may be assumed favourably to the applicant that Ms Ball had some role in preparing or approving the submissions made by the Law Society. One point to be made in this context is that the likelihood is that other members of the LPAB understood that Ms Ball’s conflict arose from the fact that she was a member of the Council of the Law Society and the Law Society had made submissions to the LPAB on the application, which explains why none of them asked for more details about Ms Ball’s conflict.
The question in those circumstances is whether it was adequate for Ms Ball to declare her conflict and not to participate in the discussions concerning the applicant’s application or the decisions in relation to it, or whether it was necessary for her to leave the meeting altogether while the applicant’s application was discussed. In my opinion, it was not necessary for Ms Ball to leave the meeting. There was nothing in the policies and procedures of the LPAB that required her to do so. Having regard to the nature of the LPAB and the question it had to decide, there was no realistic possibility that Ms Ball’s presence would stifle debate on the subject or that it would inhibit one or more of the other members from reaching his or her own conclusions on the matter. There could be no question, for example, that they might be torn between appeasing Ms Ball and reaching what they thought was the correct decision. Ms Ball’s presence at the meeting could not realistically have affected the weight that they thought was appropriate to give to any opinions expressed by the Law Society.
In his supplementary submissions, the applicant referred to a substantial number of authorities that were said to support his case. However, as the LPAB observed in its supplementary written submissions in response, each of those cases is plainly distinguishable from the facts of this case. In R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411, a councillor made representations against a development permit then participated in the decision-making body’s decision on that permit and voted against the application. In R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190, although the relevant councillors did not vote on two applications before the Council for music and dancing licences, they were present during at least parts of the meeting of the Council that considered the question, spoke to other councillors during the course of the meeting and instructed counsel to represent them at the meeting and to oppose the applications. In Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586, licensing justices instructed a solicitor to appear to oppose the renewal of a licence on their behalf and voted on the decision. In Cooper v Wilson [1937] 2 KB 309, a chief constable who dismissed the sergeant was then present during the Watch Committee’s deliberations on the dismissal. In Carver v Law Society of NSW (1998) 43 NSWLR 71, the tribunal member who had a conflict of interest also participated in the decision-making process.
In Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53, the Greyhound Racing Control Board found the applicant guilty of bribery and disqualified him from the sport for 12 months. Although the relevant member of the Board (Mr Smith) did not participate in the decision, he was the complainant who was personally involved in the incident, was a very important official of an association which conducted greyhound racing, and an influential person in the sport. Similarly, in Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7, the complainant in respect of disciplinary proceedings conducted by a friendly society, although he did not vote, formally presided over the judicial tribunal of the friendly society hearing the complaint.
The facts of each of these cases are far removed from the facts of this case.