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[2026] NSWSC 625
Supreme Court of NSW
2026-06-03
Schmidt AJ
Original judgment source is linked above.
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] NSWSC 625
Hearing dates: 22 May 2026
Date of orders: 3 June 2026
Decision date: 03 June 2026
Jurisdiction: Common Law
Before: Schmidt AJ
Decision: (1) The parties are directed to confer about the appropriate orders, including in relation to whether these proceedings should also be before the Court of Appeal, which was raised at the hearing, as well as costs.
(2) Proposed orders should be filed within 14 days, together with short written submissions, in the event of any dispute.
Catchwords: CIVIL PROCEDURE — application to set aside prior consent orders discontinuing proceedings — orders also sought for production of documents — related proceedings before Court of Appeal — orders refused
LEGAL PRACTITIONERS — solicitors — application for reinstatement to roll of solicitors — proceedings discontinued by consent — where plaintiff has also appealed refusal of his second reinstatement application
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Legal Profession Uniform Law 2014 (NSW), ss 17, 19
Legal Profession Uniform Admission Rules 2015 (NSW), r 14
Cases Cited: Atkas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47
Montenegro v Legal Profession Admission Board [2026] NSWCA 21
Montenegro v Legal Profession Admission Board (No 2) [2026] NSWCA 101
Prothonotary of Supreme Court of New South Wales v Montenegro [2015] NSWCA 409
Re Lenehan (1948) 77 CLR 403; [1948] HCA 45
Category: Principal judgment
Parties: Cesar Montenegro (Plaintiff)
Legal Profession Admission Board (Defendant)
Representation: Counsel:
C Tran / E Kneebone (Defendant)
Solicitors:
(Plaintiff) (self-represented)
Crown Solicitors (Defendant)
File Number(s): 2020/182135
“Pursuant to UCPR 12.1(3), consent to the Proceedings being discontinued is given on the following terms:
- The Plaintiff is to pay the Defendant $35,000 in full and final satisfaction of the Defendant’s legal costs incurred in the Proceedings, as set out in (a)-(c) below:
a) By paying the Defendant $500 upfront; and
b) By paying the Defendant $50 per week; and
c) By paying the Defendant $100 per week when the Plaintiff advises the Defendant that the Plaintiff has commenced full-time employment.”
Those orders were amended by consent in 2025, in relation to costs.
Mr Montenegro later filed a number of motions which were listed for hearing or directions in May 2026:
January 2026 motion seeking orders setting aside the August 2022 and April 2025 consent orders;
An amended 20 February motion seeking orders setting aside the 27 August consent orders as they relate to costs only;
13 March 2026 motion seeking orders for the production of minutes of LPAB meetings between August 2017 and December 2020, as well as discovery of certain other documents prepared for or considered by the LPAB in connection with his readmission applications during that period. At the hearing Mr Montenegro indicated he wished to correct this motion to refer to 2022, but finally did not press that amendment;
An amended 9 April 2026 motion seeking orders in relation to production of the minutes of all meetings of the LPAB and all agenda papers, board papers, briefing papers, draft reasons, draft analyses, and any other documents recording or evidencing the consideration, deliberation, or determination of the Plaintiff’s readmission application by the LPAB from 27 August 2017 to 31 December 2020, the LPAB having refused his first application in June 2020; and
26 April 2026 motion seeking to have orders made by the Registrar on 1 April set aside and listing the March motion for hearing before any final hearing.
The background to these motions is that Mr Montenegro was removed from the Court’s roll in December 2015, when he also lost his practising certificate, the Court having declared that he was not a person of good fame and character or a fit and proper person to remain on the roll: Prothonotary of Supreme Court of New South Wales v Montenegro [2015] NSWCA 409. That having turned on his record of criminal offences and failures to make full and frank disclosure of that conduct to the LPAB, the Law Society of NSW and the NSW Bar Association.
Mr Montenegro first applied, unsuccessfully, for readmission in 2017 and made his second application in 2022, the day before he discontinued these proceedings. The LPAB later also refused his second application.
Mr Montenegro challenged both refusals. His first appeal was discontinued in these proceedings on the agreed terms. His second challenge is now before the Court of Appeal, which has refused a motion by which he sought orders for the production of documents, discovery, provision of information from the LPAB, as well as leave to file and serve a further amended summons and further affidavit evidence: Montenegro v Legal Profession Admission Board [2026] NSWCA 21 and Montenegro v Legal Profession Admission Board (No 2) [2026] NSWCA 101.
In April 2026, the Registrar had made orders in these proceedings requiring Mr Montenegro to file and serve any further affidavits and listed some of the motions for hearing on 22 May, with the production motion being listed for directions that day. Taking the view that as the proceedings were no longer current, the matter had to be reinstated, before the discovery motion could be considered.
Before the May hearing Mr Montenegro communicated with the Registrar about the adjournment of the hearing because of ill health, but he did not pursue an adjournment.
At the May hearing Mr Montenegro explained that he sought to have the review of the Registrar’s orders determined first, not being in a position to comply with orders for preparation of the other motions for hearing, without access to the documents which he sought to have produced.
I then heard the parties in relation to the disputed production, the evidence they relied on being received without objection and that course finally not being opposed.
Mr Montenegro pursues the reopening of the consent orders which brought these proceedings to an end, complaining that he had been misled into pursuing his second readmission application, which he made the day before he discontinued these proceedings. That being because he was not aware, at the time the orders were agreed, that the LPAB had applied what had been decided in Re Lenehan (1948) 77 CLR 403; [1948] HCA 45 to its consideration of his application. He also claims that the President of the Law Society had a conflict which she disclosed in respect of his second application, but had failed to disclose in respect of his first.
Mr Montenegro contends that the documents he seeks will thus disclose the LPAB’s process, undisclosed policies, the preparation and use of draft reasons and whether his first application was predetermined, or conducted on a false premise.
Mr Montenegro also contended that it accorded with s 56 of the Civil Procedure Act 2005 (NSW), for the production he sought to be required before his set aside application was determined.
He also complains that his second application was foredoomed to fail, given the LPAB’s decision to apply Lenehan. He having understood that his application for a compliance certificate would be fairly assessed according to law, in a fair, open minded assessment and not understanding that would require him to put on Lenehan evidence.
The LPAB contends that the reopening application was futile and an abuse of process, given that his challenge to the refusal of his second application is before the Court of Appeal. Further, that the exercise of the discretionary power to set aside the consent orders will have to be exercised with great caution, given the public interest in the finality of litigation: Atkas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [6].
It followed that the Court of Appeal proceedings were the appropriate vehicle in which to resolve the issues Mr Montenegro also seeks to pursue in relation to his set aside motion. His second application having overtaken his first, as it has.
The August 2017 to December 2020 documents which he pursues, in any event, not all relevant to his first application, particularly given that it was refused on 16 June 2020.
That was disputed by Mr Montenegro despite that, in the Court of Appeal, he had also complained about how these proceedings came to be discontinued as the result of misrepresentation and omission. That having resulted in constructive fraud on him and the Court. Mr Montenegro said that it was relevant that he had there sought to amend his pleadings and no longer intended to press this in the Court of Appeal. That, of course, is a matter for him.
The LPAB relied on Stern JA’s refusal of Mr Montenegro’s motion. Since hearing the parties his application for review of her Honour’s decision has failed. It thus cannot be accepted that his concerns about the application of Lenehan are not before the Court of Appeal.
In Lenehan, it was concluded that a solicitor may be restored to the roll after being struck off, but that the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds: at [27].
It was there accepted that “the false steps of youth and early manhood are not always final proof of defective character and unfitness. The presumption which, according to circumstances, they may appear to raise may surely be overcome by a subsequent blameless career”: at [33]. With the result that “an unsatisfactory beginning may be displaced by a completely satisfactory subsequent career sustained over a lengthy period of time”. That leaving open the conclusion that an applicant is a fit and proper person to be admitted as a solicitor: at [35].
It is difficult to see a problem with the adoption of such an approach to an application for readmission under the Uniform Law, after a solicitor has been struck off. It requiring, as it does in NSW, the LPAB to provide the Court a compliance certificate which states that the applicant is a fit and proper person to be admitted to the Australian legal profession: s 19(3)(b). That necessarily depending on a consideration of the information which the applicant has provided, it being a prerequisite for the issue of a compliance certificate that an applicant be a fit and proper person to be admitted to the Australian legal profession: ss 17(1)(c) and 19(4).
Rule 14 of the Uniform Admission Rules thus requires the applicant to set out in the application:
“(a) the circumstances which led to the applicant’s name being removed from the Supreme Court roll,
(b) the applicant’s views about those circumstances and the decision to remove the applicant’s name from that roll,
(c) events which tend to re-establish the applicant’s good fame and character,
(d) the applicant’s law-related experience since the applicant’s name was removed from that roll,
(e) any other matters that the applicant considers relevant to the application.”
It follows that an applicant for readmission must provide information of the kind contemplated in Lenehan. Namely, information which establishes relevant change in circumstances from the time that he or she was struck off, which are claimed to establish that while not a fit and proper person at that time, the position has relevantly changed, so that the required conclusion, that the applicant is now a fit and proper person, is available to be reached.
Given that the LPAB had to consider and determine Mr Montenegro’s second application as it did, the refusal of which is currently before the Court of Appeal, I am satisfied that the production of the documents which he also seeks to pursue in these proceedings, cannot now justly be ordered.
The application of the Lenehan approach about which he is concerned will arise to be considered in the Court of Appeal, given what Mr Montenegro complains about in those proceedings. As will his bias complaint.
If the Court of Appeal accepts that the approach the LPAB pursued to his second application was not available under the current statutory scheme. Or that its approach involved errors of the kind which Mr Montenegro contends, with the result that it reaches a different view about his readmission, given the evidence of change which it will also have to consider, there will no longer be any need for his pursuit of the reopening application he pursues in these proceedings.
If his appeal fails, it appears that the reopening application is also likely to be otiose, if the Court of Appeal concludes that the evidence did not establish that he was a fit and proper person, as the Uniform Law requires.
It is in those circumstances that I am not persuaded that the Court should now order the production of the documents which the LPAB resists, given the cost involved, as well as the other matters which have to be considered.
The Court and the parties must adhere to the requirements which s 56 of the Civil Procedure Act imposes. It specifying as it does the overriding purpose of the statutory scheme to be the just, quick and cheap resolution of the real issues in the proceedings.
They are now concerned with the circumstances in which the consent orders came to be made in these proceedings. A question which may become unnecessary to resolve, depending on what the Court of Appeal may decide. Its conclusions may also be relevant to the resolution of Mr Montenegro’s motions, even if his appeal is dismissed, as the LPAB seeks.
It is in those circumstances that I have concluded that while, given what the LPAB conceded at the hearing in relation to the Court’s power to order the disputed production, the Registrar was incorrect in concluding that the production motion could not be entertained, before Mr Montenegro’s reopening application was heard and determined, still the production he seeks cannot now be justly ordered.
Despite this I will not dismiss the production motion before the appeal is determined. But I have concluded that the hearing of the other motions, if they are to be pressed, should await the Court of Appeal’s determination of Mr Montenegro’s appeal. In the event that these proceedings are transferred to the Court of Appeal may, of course, take a different view.
The parties are directed to confer about the appropriate orders, including in relation to whether these proceedings should also be before the Court of Appeal, which was raised at the hearing, as well as costs.
Proposed orders should be filed within 14 days, together with short written submissions, in the event of any dispute.
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Montenegro
Legal Profession Admission Board
(2010) 241 CLR 570
(1948) 77 CLR 403