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[2026] NSWSC 745
Supreme Court of NSW
2026-06-25
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; (No 2) [2026] NSWSC 745
Hearing dates: 22 May 2026
Date of orders: 25 June 2026
Decision date: 25 June 2026
Jurisdiction: Common Law
Before: Schmidt AJ
Decision: (1) The Registrar’s 1 April 2026 orders are set aside;
(2) The hearing of the motions seeking production of documents be adjourned until the Court of Appeal has delivered its decision in relation to Mr Montenegro’s application for judicial review of the LPAB’s refusal of his second readmission application;
(3) The parties confer after that decision is given, including as to further directions and orders which need to be given, if Mr Montenegro continues to press the motions which were listed for hearing on 22 May, but not then dealt with or finalised, for reasons explained in the May judgment:
• January 2026 motion seeking orders setting aside the August 2022 and April 2025 consent orders;
• 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 and discovery of specified documents; and
• amended 9 April 2026 motion seeking orders in relation to production of specified documents.
(4) The parties have liberty to apply; and
(5) The matter be listed before me for directions at 9.30 am on 28 August 2026, in the expectation that the liberty will be exercised to adjourn that date, if the Court of Appeal has not by then given its judgment.
Catchwords: CIVIL PROCEDURE — application to reopen proceedings — where related proceedings before Court of Appeal — whether proceedings should be referred to Court of Appeal — hearing adjourned pending Court of Appeal decision
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 59, 60
Legal Profession Uniform Law (NSW) 2014 (NSW), s 19
Supreme Court Act 1970 (NSW), ss 48(1), 48(2), 51, 69
Legal Profession Uniform Admission Rules 2015 (NSW), r 14
Cases Cited: Montenegro v Legal Profession Admission Board [2026] NSWCA 21
Montenegro v Legal Profession Admission Board [2026] NSWSC 625
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: Consequential orders
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
In May 2026 I gave judgment in relation to a motion seeking review of orders made by the Registrar on 1 April 2026, the Registrar having refused to order production of documents Mr Montenegro pursued, before his application to set aside 2022 and 2025 consent orders resolving the proceedings and deal with the costs: Montenegro v Legal Profession Admission Board [2026] NSWSC 625.
Mr Montenegro had brought these proceedings in 2020, appealing the Legal Profession Admission Board’s refusal to readmit him to legal practice, he having lost his practicing certificate in 2015: Prothonotary of Supreme Court of New South Wales v Montenegro [2015] NSWCA 409. He later having made an application under r 14 of the Legal Profession Uniform Admission Rules 2015 (NSW) for a compliance certificate under s 19 of the Legal Profession Uniform Law (NSW) 2014 (NSW).
At the hearing the LPAB properly conceded the Court’s power to order the disputed production. Still I concluded that it should not be ordered, before other proceedings on foot before the Court of Appeal, which are listed for hearing on 11 August, are determined.
Those proceedings concern Mr Montenegro’s second application for readmission, made the day before he discontinued these proceedings, it also having been refused by the LPAB.
The Court of Appeal has already refused a motion by which Mr Montenegro sought orders for the production of similar 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 the May judgment, I directed the parties to confer about the appropriate orders, including in relation to whether these proceedings should also be before the Court of Appeal, which had been raised at the hearing, as well as costs: May judgment at [34].
They could not agree.
The LPAB proposed that this matter be adjourned until the Court of Appeal has determined the proceedings before it, but that these proceedings not be referred to it.
Mr Montenegro proposed that the hearing of his applications in these proceedings should not await the resolution of the proceedings he has on foot in the Court of Appeal, given that he there pursues judicial review of the LPAB’s refusal of his second application, while these proceedings concern his application for the reopening of his challenge to the refusal of his first application. Which could not be resolved by judicial review of the refusal of his second application. Noting that he here seeks to have costs orders made against him in these proceedings set aside.
Despite what Mr Montenegro advanced, I remain of the view that his reopening application should not be heard before the Court of Appeal has given judgment on his challenge to the LPAB’s second refusal of his readmission application.
It appears that on that challenge, Mr Montenegro also advances a complaint about the approach which the LPAB adopted to its consideration of his application, he claims, by reference to what was decided in Re Lenehan (1948) 77 CLR 403; [1948] HCA 45. He also seeks to rely on this to support his application to set aside the consent orders made in these proceedings, not having been aware that it had adopted such an approach to his first application, as well as to support the production he seeks.
In the May judgment I explained matters raised by the LPAB about Mr Montenegro’s concerns, which it appears will have to be considered on his reopening application as well as by the Court of Appeal: at [20]-[24].
Section 56 of the Civil Procedure Act 2005 (NSW) requires the Court and the parties to have regard to the overriding purpose there specified, namely, the just, quick and cheap resolution of the real issues in the proceedings. The Court must also seek to eliminate delay, resolve what is in dispute in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute, and act in accordance with what the dictates of justice require in the circumstances: ss 57-60. While also managing these proceedings having regard to the objects specified in s 58:
“(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.”
None of those requirements support the course which Mr Montenegro urged. It being evident that the Court of Appeal’s conclusions about his complaints about the LPAB’s approach to the consideration of his application for readmission, will be relevant to the determination of his application to reopen these proceedings. As well as to the resolution of the disputed production which he still wishes to pursue in these proceedings.
The LPAB submitted that it was not, however, necessary to refer these proceedings to the Court of Appeal, a matter about which Mr Montenegro had no view.
That is regulated by the Supreme Court Act 1970 (NSW), given that Mr Montenegro commenced these proceedings in the Common Law Division, seeking judicial review of the LPAB’s first decision: s 69.
Because the LPAB is constituted by one or more of the judges of the Court, it is a “specified tribunal” under s 48(1)(vii) of the Act. Judicial review applications in respect of its decisions are thus assigned to the Court of Appeal: s 48(2).
It is s 51 of the Act which deals with matters commenced in the Divisions of the Court, which are assigned to the Court of Appeal. It permits orders removing the proceedings to the Court of Appeal to be made, but neither party seeks such an order in this case. If not removed, the proceedings may be continued and disposed of in the Division: s 51(d).
I am satisfied that s 51(d) encompasses an application to set aside consent orders made in proceedings in the Division, which brought them to an end.
In all of the circumstances I am satisfied that these proceedings need not be referred to the Court of Appeal, given that the application now before the Court concern orders earlier made by consent, by one of the Judges of this Division, which brought the proceedings to an end. The hearing listed on 11 August in the Court of Appeal should certainly not be jeopardised by such a referral.
While the Court of Appeal’s conclusions on Mr Montenegro’s challenge to the LPAB’s refusal of his second readmission application will be relevant to his application to have the consent orders set aside, as he submitted, they will not be determinative.
The result is that the parties should not have to incur the additional expense which they would undoubtedly be put to, if what is here in issue was referred to the Court of Appeal, given the processes which they would then have to comply with. Nor is the unnecessary additional cost to the administration of justice warranted in the circumstances which arise to be considered.
While the parties did not make any submissions about costs, as they were invited to, I am also satisfied that justice requires that costs of the still disputed production should be reserved to be dealt with, when the motions seeking their production are finally resolved, if they are further pressed. If they are not, the costs should be costs in the cause.
In the meantime, I order that:
The Registrar’s 1 April 2026 orders are set aside;
The hearing of the motions seeking production of documents be adjourned until the Court of Appeal has delivered its decision in relation to Mr Montenegro’s application for judicial review of the LPAB’s refusal of his second readmission application;
The parties confer after that decision is given, including as to further directions and orders which need to be given, if Mr Montenegro continues to press the motions which were listed for hearing on 22 May, but not then dealt with or finalised, for reasons explained in the May judgment:
January 2026 motion seeking orders setting aside the August 2022 and April 2025 consent orders;
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 and discovery of specified documents; and
amended 9 April 2026 motion seeking orders in relation to production of specified documents.
The parties have liberty to apply; and
The matter be listed before me for directions at 9.30 am on 28 August 2026, in the expectation that the liberty will be exercised to adjourn that date, if the Court of Appeal has not by then given its judgment.
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I
Montenegro
Legal Profession Admission Board; (No 2)