Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 | Case summary

Court of Appeal (NSW)|2015-12-04|Before: Meagher JA, Leeming JA

Introduction

The respondent was first admitted as a lawyer of the Court on 5 December 2008. He subsequently applied for and was issued practising certificates by the Law Society of New South Wales (Law Society). In the period between April 2008 and March 2012 he worked intermittently in three different law practices. On 7 August 2014 the respondent applied to the New South Wales Bar Association (Bar Association) for a certificate to practise as a barrister. Inquiries subsequently made by the Bar Association as to the respondent's criminal record and fitness to practise ultimately led to the making of the Prothonotary's application.
The conduct of the respondent relied upon as justifying the Bar Association's refusal to issue a practising certificate is:

his lengthy criminal conduct, principally involving traffic offences, in the period from February 1999 to December 2013;
his failures to make full and frank disclosure of that record and the circumstances of that conduct, when applying to the Legal Profession Admission Board (LPAB) for admission as a lawyer and to the Law Society and Bar Association, when applying for the issue of practising certificates;

The respondent's applications for admission and for the issue of practising certificates

The respondent completed his law degree in 2007 and on 6 November 2008 applied to the LPAB for admission as a lawyer. That Board was required to determine whether he was a "fit and proper person to be admitted", and to do so in accordance with the provisions of s 25 of the Legal Profession Act 2004 (NSW) (LPA) (repealed with effect from 1 July 2015). The Board had to consider each of the suitability matters described in s 9(1), to the extent that it was relevant. Those matters included whether the respondent was currently of "good fame and character". For a discussion of the meaning of this expression, and the description "fit and proper person", see Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at [17]-[32].
In accordance with the requirement of r 99 of the Legal Profession Admission Rules 2005 (NSW), the respondent completed an application form which included the following specific declarations, addressing two of the suitability matters referred to above: 6.2 I am and always have been of good fame and character and I have not done or suffered anything likely to reflect adversely on my good fame and character, and I am not aware of any matter or circumstance that might affect my suitability to be admitted as a lawyer. … 6.4 I have never been convicted of an offence in Australia or in a foreign country.
In relation to those declarations, the respondent was asked to sign in the box next to the declaration if it was true, or strike the declaration out if it was not applicable. If he did the latter, the respondent was required to make the declaration set out below and to make disclosure satisfying the description in that declaration: 6.12 I attach signed and dated disclosure(s) setting out full details of the circumstances associated with any of the above declarations which I have not signed.
The respondent duly struck out declarations 6.2 and 6.4 set out above, and made a declaration in terms of 6.12. He made three disclosures. They are dated 5 November, 11 November and 28 November 2008. The second contained more information than the first and was intended to replace it. The first two disclosures commenced: "The purpose of this letter is to provide full details and disclosure in relation to declarations 6.2 and 6.4". The third, made in response to a specific request from the LPAB, contained a list of "excluded" offences (as defined in cl 4 of the Legal Profession Regulation 2005 (NSW)) which had not been disclosed before.
The declaration dated 11 November 2008 concluded: I am being as completely honest as I can with all these offences of the past. If it would help I could send you my entire criminal record as verification. These are all the offences I was convicted of in the past. I offer no excuse for my past conduct. All I ask is that it is taken duly into consideration that I have not had any additional offences (other than excluded offences) since 2002. I honestly believe I have evolved into a person of good fame and character. I have undergone a radical change since my earlier days.
On the same day that he was admitted as a lawyer of this Court (5 December 2008), the respondent applied to the Law Society for a practising certificate. That application included a declaration by the respondent that he was not aware: … of any finding, conduct or event which would disentitle me, without disclosure, to be admitted to the Local Roll of Lawyers or effect my fitness to hold a practising certificate (other than that which is disclosed herewith or previously disclosed).
The database records of the Law Society indicate that he also made disclosures to the Law Society in similar terms to those made to the LPAB. That he did so is supported by his statement made to the Bar Association in August 2014 describing his previous disclosures to the LPAB dated 11 and 28 November 2008 as "disclosures made to law society council in 2008".
The respondent was issued with a practising certificate for the period 1 January 2009 to 30 June 2009. Thereafter he held practising certificates issued by the Law Society for the following periods: 1 January 2011 to 30 June 2011; 1 July 2011 to 30 June 2012; 18 July 2012 to 30 June 2013; and 18 February 2014 to 30 June 2014. In relation to each of these further periods he completed a separate application which included a declaration to the same effect as that set out above.
The respondent also made disclosures to the Law Society in relation to the offences committed in April 2010 and December 2013. On 18 November 2010, the Law Society received a disclosure to the effect that on 1 April 2010 the respondent had been charged with two mid-range prescribed concentration of alcohol (PCA) offences. He also completed a Notice of 'Show Cause Event', dated 16 November 2010, and on 29 November 2010 again wrote to the Law Society advising that he had been charged with two mid-range PCA offences. On 20 February 2014 the respondent disclosed to the Law Society that he had been convicted on 29 January 2014 of recklessly or intentionally damaging his partner's motor vehicle, contrary to s 195 of the Crimes Act 1900 (NSW).
On 7 August 2014 the respondent applied to the Bar Association for a practising certificate. He attached to that application copies of the disclosures made to the LPAB, dated 11 and 28 November 2008. In addition he disclosed the two mid-range PCA offences committed in April 2010 and the property damage offence committed in December 2013.
Having received that disclosure, the Bar Association made inquiries of the LPAB and Law Society; served notices to the respondent under s 46(5) of the LPA, requiring him to provide further information and documents; and sought records relating to some of the disclosed offences from the Liverpool Local Court. Having made those inquiries, and having received further disclosures from the respondent, the Council of the Bar Association resolved to reject his application for a practising certificate on the basis that it was not satisfied he was a fit and proper person. That resolution was passed on 23 October 2014. The respondent was advised of that resolution and on 4 November 2014 he was given a formal notice of that decision, the reasons for it and of his rights of appeal or review.
The respondent did not appeal from the Bar Council's decision. Instead, on 27 October 2014 he made an application to the Law Society (received on 29 October 2014) for a practising certificate for the year ending 30 June 2015. In that application he disclosed that his application to the Bar Association had been refused and attached a copy of the Bar Association's letter of 24 October 2014. The Law Society resolved on 15 January 2015 to reject that application, on the basis that it also was not satisfied that the respondent was a fit and proper person.

The proceedings between the respondent and the Law Society

On 12 February 2015 the respondent appealed to the Supreme Court from the decision of the Law Society. That appeal was heard by Campbell J and by his judgment delivered on 2 July 2015, his Honour allowed the appeal and set aside the decision of the Law Society: Montenegro v Law Society of NSW [2015] NSWSC 867. On 29 July 2015 the Law Society filed a notice of appeal from that order. Subsequently it filed a summons seeking leave to appeal, on the basis that leave was required under s 101(2)(r) of the Supreme Court Act because the Court's order did not involve a matter at issue amounting to or of the value of $100,000 or more: Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 at 205.
That appeal was listed for hearing before this Court at the same time as the Prothonotary's application in the Court's original jurisdiction. Before the hearing commenced, and following discussion with the parties, the Court decided that the two proceedings should not be heard together and that the Prothonotary's application should be heard and determined before the hearing of the Law Society's application for leave to appeal, and any proposed appeal.
At this point it should be recorded that, in the proceedings before Campbell J, the Law Society's argument that the respondent was not a fit and proper person was put on a narrower basis than the argument now made on behalf of the Prothonotary. Specifically, the Law Society did not contend that the respondent's criminal conduct was "necessarily incompatible with good character". Nor did it contend that his failures to make full and frank disclosure were deliberate, or reckless in the sense referred to earlier: Montenegro v Law Society of NSW at [35]-[37]. For his part, the respondent says that he does "not wish to practice as a solicitor now or ever" (Written Submissions, filed 17 November 2015, para 28).
We turn now to the criminal conduct relied upon by the Prothonotary and the deficiencies in relation to its disclosure.

5 March 2000: Clifton Gardens Reserve offences

The first of the relevant offences occurred in March 2000. In his disclosure to the LPAB on 11 November 2008, the respondent described this offending (referring to the Court in which he was convicted on 1 August 2000) as follows: 05.03.00 North Sydney Local Court Maliciously destroy or damage property (3 counts) (Was out fishing one night at Clifton gardens. Started drinking alcohol with a group of friends, before we knew it we jus[t] started overturning bins and destroyed a toilet block. → Paid $1500 in compensation for damage → Ordered to perform Community Service 100 hours concurrently.
The Facts Sheet for these offences discloses that the respondent, using an alloy baseball bat, gained entry into a female toilet block and smashed 11 ceramic toilet bowls, a ceramic washbasin and other fittings. He was also seen striking a parking ticket machine and a "No Standing" sign with the bat. The respondent was subsequently charged with three counts of maliciously destroying or damaging property contrary to s 195A of the Crimes Act. The Facts Sheet also reveals that he supplied "false details to police at the scene, and the police station" and "refused to answer any questions relating to the incident and became aggressive when it was revealed his true identity was known".
The Prothonotary alleges that the respondent's disclosure of this incident to the LPAB was "seriously deficient and misleading" because it did not reveal the full extent of the damage to property, his role in the relevant events, his use of a baseball bat and the fact that he provided false details to police at the scene and at the police station. The respondent accepts that his disclosure was misleading and deficient in these respects, but maintains that it was not his intention to mislead. He says that he "lazily provided a summary without requesting" the relevant underlying documents (including the Facts Sheet and Court Attendance Notice). He also says that he had "forgotten the precise details of the offences" and disclosed what he recalled, guided only by a police record of his criminal history apparently obtained in January 2003.

2 September 2000: Marconi Club offences

The respondent disclosed these offences to the LPAB in his declaration of 11 November 2008 (they being dealt with at the Liverpool Local Court on 31 January 2001): 02.09.00 Liverpool Local Court Possess thing like Australian drive licence w/i to deceive (Used to enter nightclubs when underage) Was found with this licence when taken in for the larceny below. Did not use licence in any manner at that time, was jus[t] caught with it in pockets. → Fined $200 Larceny Value <= $2000 (Stole several mobile phones from Latin Night at Marconi Club, Bossley Park) stole about 4 mobile phones from tables at Marconi club; again under the influence of alcohol. → Fined $250; s9 Good behaviour bond [emphasis in original to identify parts added to earlier disclosure]
The Facts Sheet for these offences reveals that they were committed in the company of a co-defendant; that the respondent was seen lifting an object out of one of the victim's handbags; that he denied to the police that he had taken any items from handbags; and that he was found to be carrying a provisional driver's licence which contained his photo but was in the name of Wesam Tom Yousif. It also records that when questioned by the police, the respondent said that his licence had been suspended or cancelled; that he had "purchased" the provisional licence; and that he had used the false licence to enter the Marconi Club, where he had signed in under that name.
The respondent's disclosure to the LPAB did not include that there was anyone else involved in the offence or that he had used the false licence to enter the Club. In fact his statement to the LPAB that he did "not use licence in any manner at that time, was jus[t] caught with it in pocket" was in that respect false. His statement to the police that he had "purchased" the provisional licence from an "unknown person in Fairfield" was also false and the fact that he had not been truthful to the police about that was not disclosed to the LPAB.
In his letter to the Bar Association dated 11 September 2014, the respondent said: Around 16 years of age I began to use other names but they were real names of friends. I went to the RTA with their birth certificate, Medicare card and phone bill and said 'I lost my licence may I have a replacement' and they would take the photo on the spot and issue it. They were primarily used to get into nightclubs when I was 18. I rarely used it for actually driving but I have done so. I have used the names Steven Morales and Wesam Yousif. I have only changed my name through the registry of births, deaths and marriages once to Miguel Cortez and back to Cesar Montenegro.
The respondent accepts that his disclosures were deficient in the respects alleged by the Prothonotary. However he again rejects the suggestion that he had any "dishonest design or intention to conceal". He also denies that his use of the false licence was to hide his true identity because he proposed to commit a crime. He suggests that Mr Yousif would have been a member of the Club and that by using the ID he, the respondent, was able to sign himself into the Club by representing that he was a member.

13 October, 20 October and 4 November 2002: driving offences

On 12 January 2000 the Liverpool Local Court made an order disqualifying the respondent from holding a driver's licence for a period of two years commencing on 10 February 2000. His previous provisional licence had been endorsed as cancelled with effect from 17 December 1998 and would otherwise have expired on 2 September 1999. In his disclosure of 11 November 2008 the respondent stated: With regards to the all driving offences I kept driving because I was angry and felt that I had lost my licence unfairly.
In that disclosure he described (albeit incorrectly in a number of respects) the driving offences as follows: 13.10.02 (Driver state false name or address Gave the Police a friends name when pulled over Drive on road when licence cancelled) (THIS WAS DEALT WITH on 04.11.02 Below) 04.11.02 Liverpool Local Court Obtain/renew licence by false statement Declared in the application that I have not ever had a licence in NSW when this was in fact untrue. Possess licence obtained/renewed by false statement Same licence thing as above Exceed speed 45km/h [On 28 November 2008 the description of this charge was amended to read 'Exceed Speed Over 30km/h under 45km/h'] Driver refuse to produce licence Driver state false name or address Gave friends name again, same as previous charge. Drive on road when licence cancelled (2 counts) → Given a s 10 bond They also removed one of the cancelled driving charges because they had charged me with the wrong charge on 3 previous counts. They charged with cancelled/suspended driving instead of un-licensed driving because the suspension /cancellation/disqualification period had already come to an end at that point in time. [emphasis in original to highlight what was added to earlier disclosure]
The true position with respect to the offences with which the respondent was charged in October and November 2002 was as follows.

13 October 2002 offences

On 13 October 2002 the respondent was subjected to a random breath test, and asked to produce his driver's licence. The respondent did not produce a licence and, when asked, gave his name as Wesam Tom Yousif. He denied having any other form of identification. He was then arrested and after various police checks had been completed, was charged with giving a false name or address and driving when his licence was cancelled. Those charges were dealt with at Liverpool Local Court on 6 November 2002 and in the respondent's absence. The convictions entered on that day (for those and other offences) were subsequently annulled on the respondent's application. The underlying charges were again dealt with on 26 March 2003. At that time the respondent pleaded guilty to each of these two offences. He was fined $400 in relation to the first and, in relation to the second (and another offence dealt with on that day), disqualified from driving for two years and given a s 9 good behaviour bond (under the Crimes (Sentencing Procedure) Act 1999 (NSW)) for 12 months on condition that he undertake probation supervision and a responsible driving programme. The sentence in relation to that second offence was revoked by the Liverpool Local Court on 7 August 2003, the respondent having failed to comply with the conditions of the bond. That day the Court imposed a suspended sentence of imprisonment for six months for that and another offence, on condition that the respondent enter into a further six month good behaviour bond.

4 November 2002 offences

On 4 November 2002 the respondent was charged with three offences arising from events which occurred on that day. The respondent was driving a vehicle, registered as REB 756, with a female passenger. The vehicle was observed by police to stop and the passengers to attempt to change seats. The police intervened. When questioned the respondent said that he only had a learner's licence and produced a licence in the name of Miguel Cortez. He was then arrested in relation to an unrelated offence and conveyed to Green Valley Police Station, where he was finger printed and identified as Cesar Montenegro. However the respondent maintained that his name was Miguel Cortez and that he had changed his name. Police inquiries showed that on 30 October 2002 he had obtained a learner's licence in the name of Cortez, having declared that he had never been disqualified and that his licence had never been cancelled or suspended.
As a result, the respondent was charged with three offences: driving when licence cancelled, possessing a licence obtained by dishonest means and obtaining a licence by a false statement. On 6 November 2002 he was convicted, again in his absence, of each of those offences. Those convictions were subsequently set aside and on 26 March 2003 the respondent pleaded guilty to the same three offences. For the first, he was ordered to undertake 100 hours of community service and his licence was disqualified for two years from 26 March 2003. He was fined $300 for each of the second and third offences. The sentence in relation to the first offence also was revoked on 7 August 2003 and the suspended sentence of six month's imprisonment with a good behaviour bond was imposed for that and the offence committed on 13 October 2002.

The offences of 20 October 2002

On 4 November 2002 when investigations were made in relation to the above described offences, the police computer system showed that the vehicle registered as REB 756 had been stopped on 20 October 2002, after having been checked on a radar as travelling at 152 km/h in a sign-posted 90 km/h area. When the driver (the respondent) was requested to produce his licence he said that he did not have it with him and gave the name Wesam Yousif. He then falsely stated that his girlfriend's father had recently died and that he was trying to get her home. Having given that explanation, the respondent was allowed to leave without being charged.
Aware of the events of 4 November 2002, the police charged the respondent with the five offences alleged to have occurred on 20 October. They were driving a vehicle in a dangerous manner; driving when licence cancelled; giving a false name and address; exceeding the speed limit by more than 45 km/h; and refusing to produce a licence. Those offences were dealt with on 6 November 2002 and, in the respondent's absence, he was convicted of each. On 21 November 2002 the respondent applied to annul those convictions. That application was granted on 23 January 2003 and the respondent pleaded not guilty to each of the charges, which were adjourned for hearing on 26 March 2003. On that day each of the five charges was withdrawn.
As to the circumstances in which those charges were withdrawn, and the reasons why he had changed his name to Miguel Cortez by deed poll on about 3 September 2002, the respondent advised the Bar Association in September 2014: The main reason I changed my name was so I would be able to drive in case I was cancelled or suspended (as I always was at the time). … One event I now remember as a result of reading [the charge sheet of 4 November 2002] is the 'driving recklessly/furiously 4 Nov 2002' which was withdrawn together with the other charges. I was pulled over heavily speeding and I gave a license in the name of my friend, Wesam Tom Yousif (who I have not spoken to or heard from for maybe 10 years), and my girlfriend - at-the-time made up a story about a family member passing away and I played along so the police let us go. I was charged for those offences and they were withdrawn as I maintained it was not me and the police could not prove it was me.
In his evidence to this Court the respondent accepted that he "had lied to the police about what [his] name was… [and] continued to make use of that lie through a lawyer to have the charges withdrawn" (tcpt 03/12/15, p 36).

Deficiencies in disclosures in relation to the October and November 2002 offences

The respondent's disclosure to the LPAB concerning the charges and offences of 13 October, 20 October and 4 November 2002 was deficient in the following respects. First, he did not disclose the sentences he received for the offences committed on 13 October 2002, namely a fine of $400, disqualification from driving for a period of two years and a s 9 good behaviour bond for 12 months. In relation to the charges for the offences committed on 20 October 2002, he did not disclose that the charges were brought; that he was convicted; that his conviction was annulled; that he pleaded not guilty to those charges; and that they were withdrawn because he had supplied a false name and story to the police and continued to falsely deny that he was the driver of the vehicle. In addition, his statement to the LPAB in November 2008 that one of the "cancelled driving charges" had been removed because they had "charged me with the wrong charge on 3 previous counts" was not true. The charge for that offence, committed on 4 November 2002, was maintained and he pleaded guilty to it on 26 March 2003. The charge for the same offence allegedly committed on 20 October 2002 was withdrawn because, as the respondent now accepts "the police could not prove" the driver was him in the face of his false denial.
Finally, in relation to the offences committed on 4 November 2002, the respondent did not disclose fully the sentences he received or the fact that on 6 November 2002 he had been convicted of all of the offences of which he was charged on that day, and that bench warrants were issued in the absence of his attendance at Court.
The respondent does not accept that his statement in relation to the withdrawal of one of the "cancelled driving charges" was false in the respect referred to above. Otherwise, he accepts that his disclosures were deficient in each of the respects identified. In his letter to the Law Society of 7 January 2015, the respondent maintained that he did not deliberately conceal information: … I should have disclosed that I was originally convicted of all offences and about the arrest warrants and sentence. I made disclosure lazily only pre-occupied with citing the actual offence rather than the facts and circumstances behind such and sentence. I should have been more diligent since the onus was on me to make full and frank disclosure. This is a mistake on my part without any intention to mislead or conceal.
He also said in relation to his failure to disclose his original conviction for the offence of 20 October 2002: … I did not disclose the 'driving reckless/furiously' offence and others which occurred in conjunction with that to any entity up until last October 2014 when NSW Bar requested all court documents. Upon reading a certain document I remembered of what occurred back then and realised that those offences were withdrawn back then. I had forgotten about this incident.

26 June 2004: driving offence as Miguel Cortez

This offence was not disclosed to the LPAB in any of the three disclosures made in November 2008. In his amended disclosure of 11 November 2008 the respondent falsely asserted that he had disclosed "all the offences I was convicted of in the past" (see [15] above).
On 26 June 2004 the respondent was again driving whilst disqualified. He was stopped at a roadside breath testing site. When asked to produce his driver's licence, he said that he did not have it with him and that the only licence he had was a learner's licence issued in the name of Miguel Cortez. Checks then undertaken revealed his previous record under the name Cesar Montenegro and the fact that he had been disqualified from holding a driver's licence as a result of the orders made on 26 March 2003 in respect of the offences committed on 13 October and 4 November 2002.
The respondent pleaded guilty to this offence at Liverpool Local Court on 30 September 2005. However, surprisingly, the Court did not proceed to convict him, directing instead that he enter into a good behaviour bond for 18 months commencing on that day. That direction was made under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The factors which the Court was required to take into account in deciding whether to make such an order included the respondent's character, his prior record and the nature of the offence. It is most unlikely that the respondent would have received such a lenient outcome had the Court been made aware of the full extent of his driving and criminal record.
The respondent agrees that this offence was not disclosed to the LPAB. He says that omission was not deliberate and could be explained by that offence not appearing on his criminal record under the name Montenegro. He also says that he does not remember whether he was in Court on the day in September 2005 when the offence was dealt with (tcpt 04/12/15, p 25). The evidence before this Court does not clearly establish that he was in court on that day. However the fact that a plea of guilty was entered, and that the Court did not proceed to conviction upon his agreeing to enter into a good behaviour bond, makes it more probable than not that he was in court on that day, whether represented or not.

24-25 April 2010: driving offences

Late in the evening of 24 April 2010 the respondent was breath tested at a petrol station, arrested and charged with a mid-range PCA offence. He was also given a notice of suspension of his driver's licence, and then released. Shortly afterwards the respondent returned by taxi to the petrol station where his vehicle was parked and drove it away. Having done so, he consumed more alcohol. The vehicle was again stopped. He was breath tested and charged with a second mid-range PCA offence. He was also charged with driving whilst his licence was suspended. The respondent was convicted of each of these offences on 2 November 2010 at Blacktown Local Court.
The respondent accepts that his disclosures made to the Law Society in November 2010 (see [19] above) were deficient because they did not state that after the first charge his licence had been suspended and that he had later been convicted of driving whilst his licence was suspended. Nor did they specify the circumstances in which he had attracted the attention of the police prior to the first charge, namely that he had been seen urinating on the toilet door at the petrol station. Neither that lack of disclosure nor the underlying facts are contested.
The fact of the "drive while suspended" offence was disclosed to the Bar Association in August 2014. The respondent says it was not disclosed earlier because he had forgotten about it and only remembered it when the Bar Association had requested copies of the Court Attendance Notice and Facts Sheet. He says that failure was not deliberate, and that he was severely ill at the time the charges were brought. In his affidavit in this proceeding he says: … I adjourned the court several times, I think it was my fourth medical certificate which was not accepted so I had to hand myself in as the judge issued out a bench warrant. The day of court from the dock I paid no attention to anything I just wanted to get out of there. My medical condition affected me greatly. I had slept little or nothing the night before, I was extremely uncomfortable. I had my skin red, inflamed and broken and my head really unwell with light-headedness and dizziness. I do not remember anything that was said. I met a lawyer on the day that approached me while I was locked up and she did all the talking. I forced myself to go and get it over with.
It is convenient as this point to refer to the evidence concerning the respondent's medical condition.
The medical reports which address this condition in any detail are dated from November 2002, October 2003 and March 2006. They establish that the respondent suffers from atopic dermatitis which affects him severely and at times results in inflammation, redness, weeping and thickening of the skin on the face, neck and upper limbs. The first report dated 1 November 2002 suggested that, at that time, and as a result of the use of a particular immunosuppressive drug, the respondent's eczema was under "better control". The second dated 22 October 2003 described the disease as "under reasonable control until approximately 5 weeks ago when he had a severe flare which is only now settling". That episode was considered to have impacted on the respondent's ability to fulfil his duties at university. The third dated 17 March 2006 refers to earlier treatment of the "severe atopic dermatitis" which it says has "remained a problem since medication was ceased, with frequent flares in disease".
There were also a series of medical certificates produced to the Bar Association bearing dates between 10 January 2009 and 29 November 2010. Each is in general terms and follows a similar format, referring to an examination on a particular day, recording that the respondent presented with "eczema", "complicated dermatitis" or "a medical condition", and concluding that he was unable to attend an appointment or was unfit for work on a particular day or for a period of a few days. There are no certificates relating to any period from 1 August 2010 to 23 November 2010. A further very brief medical certificate, dated 13 October 2015, records that the certifying doctor had seen the respondent a "few times between January 2009 and 17/06/2010" for the above problem and that his eczema "was very severe at that time and it was possible that it could affect his concentration and working capacity during that period".
None of this evidence addresses the respondent's medical condition as at 2 November 2010 when these three offences were dealt with. Nor does this evidence say any more than that it was "possible" that his condition when very severe "could" affect his concentration. Considered as a whole, the medical evidence provides no independent expert support for the respondent's assertion that his chronic dermatitis condition affected his ability to understand and remember the three offences of which he was convicted in early November 2010.

16 December 2013: destroy or damage property

On the evening of 15 December 2013, the respondent intentionally damaged his partner's motor vehicle in a fit of rage as a result of something she had said to him about her ex-boyfriend. The incident occurred late in the evening, and after the respondent had been drinking at a family function since the morning of that day.
In the early hours of 16 December, the police stopped the vehicle, which was being driven by the respondent's partner and in which he was a passenger. In answer to questions concerning damage to the driver's side of the vehicle, the female driver told the police that the respondent had hit her car but that she did not want him charged. The police approached the respondent and asked him to get out of the car. He did so and at that time said words to the effect: "It's a rough neighbourhood, we got jumped and they smashed the vehicle". Later the respondent was arrested and taken to Parramatta Police Station. He declined to participate in an electronically recorded interview and refused to sign the police officer's notebook to record that he did not wish to participate in such an interview.
On 20 February 2014, when applying to the Law Society for a practising certificate for the period ending 30 June 2014, the respondent disclosed that he had been convicted of recklessly or intentionally damaging property. He did not disclose that he had initially suggested to the police that the damage had not been caused by him but by someone from the "rough neighbourhood". The respondent does not contest that he made that statement. Indeed in his letter to the presiding Magistrate advising of his intention to plead guilty, he said: "I was intoxicated and made the comment as alleged as I was unaware I had committed any offence at the time. It was a stupid comment and inaccurate".
In his affidavit in this proceeding he accepted: "yes I initially lied to police in a state of intoxication". He continued: "I did not lie where it mattered. I had no idea I would be charged at the time as the car was ours. The comment was more of a joke than anything as I jumped out of the car stumbling and bleeding profusely." An aspect of this explanation appears to be that although he lied to the police, it was not a lie intended to obstruct or affect the course of justice because he did not think that he could be charged with damaging a vehicle which he owned with his partner.

Remaining conduct relied on by the Prothonotary

The fact that the respondent changed his name by deed poll to Miguel Cortez and the reasons why he did so are sufficiently recorded in [43] above. In his letter to the Bar Association dated 21 August 2014, the respondent said he used the name Miguel Cortez from 3 September 2002 to 19 May 2004. Taken as a statement directed to his "use" of the name, this does not appear to be correct because the respondent gave that name on 26 June 2004 (see [50] above) and it is probable that he used the name in September 2005 by adopting it to plead guilty to the charge and to enter into an 18 month good behaviour bond.
Finally, it is correct, as the Prothonotary alleges, that for a short period of time in the middle of August 2014 the respondent described himself as a "barrister". At the Bar Association's request, he removed that description from his LinkedIn and Facebook sites. In his letter to the Bar Association dated 21 August 2014 he said: I do apologise I thought since I commence the bar practice course this month it would be acceptable. I should have been more careful.

Is the respondent a fit and proper person to remain on the Roll?

Qualities of honesty and integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person. Their importance in the present context was explained by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [19]-[20]: Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
Between March 2000 and September 2005, the respondent engaged in conduct which in various ways was dishonest, and revealed a disregard and disrespect for the law and the rights of others. He destroyed public property and when apprehended provided false details as to his identity. He stole the property of others; obtained a driver's licence by a false statement; lied to the police as to how he obtained that licence; and used it to gain entry to licensed premises under a false name. Between at least 1999 and 2004, he drove whilst disqualified. To enable him to do so without being detected, he used false licences, changed his name by deed poll, made false statements to obtain a licence in that changed name, and when stopped by police lied as to his true identity and did not disclose that he was disqualified from driving. In January 2003 he pleaded not guilty to committing offences he had in fact committed and procured the withdrawal of those charges by falsely maintaining that he was not the driver of the vehicle.
None of this is disputed and the respondent accepts that his conduct before 2005 revealed serious deficiencies of character and unfitness. However he urges that he has since matured and is now a "wholly different person".
Whilst it may be accepted that the fact a person has engaged in criminal behaviour in the past is not necessarily a bar to that individual later being found to be a fit and proper person, clear proof is required to establish that that is so. In Ex parte Lenehan (1948) 77 CLR 403, the applicant for admission, who had engaged in dishonest acts between the ages of 25 and 28, was found nearly 20 years later to be a fit and proper person to be admitted. The majority (Latham CJ, Dixon and Williams JJ) said of the Court's task (at 424): There must be a strong disinclination to admit to the profession of a solicitor any person who has been shown ever to have been guilty of improper conduct. It is a disinclination founded upon the unsafety of such a course and the need of strictness in maintaining the standards of the profession. But 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.
In such a case at least two considerations arise. The first is referred to by Dixon J in the passage from Re Davis extracted in [8] above. The candidate for admission must have an appreciation of the obligation of candour in relation to any improper conduct and have fulfilled that obligation. It is only if that has occurred that the Court or the admitting authority can be satisfied that the person understands the significance of the deficiencies revealed by the conduct and has undergone a reformation of character in relation to them sufficient to justify a conclusion that he or she is presently a fit and proper person.
The reason that is so is explained by White J at [37] in Re Hampton [2002] QCA 129, a case where the applicant for admission had failed to appreciate the need to be frank in his disclosure of past conduct: His failure to disclose his past demonstrates want of understanding of the high degree of trust which the court, of necessity, must repose in a person whom it endorses as a fit and proper person to practise the profession of solicitor. It is his want of understanding of this against the background of his past that raises present doubts about his fitness for practice.
The same point was emphasised in Thomas v Legal Practitioners Admissions Board [2004] QCA 407; [2005] 1 Qd R 331, where de Jersey CJ noted at 333: By making candid and comprehensive disclosure of relevant information an applicant demonstrates a proper perception of his or her duty and will thereby seek to demonstrate his or her good character.
And McMurdo P said at 335: His lack of disclosure does, however, demonstrate a lack of insight into his serious past misconduct and a lack of understanding of his duty to make full and accurate disclosure to the Board.
At this point we record that we are not satisfied that the respondent's failures to make full and frank disclosure were deliberate and designed to mislead the relevant authorities, or reckless in the relevant sense. The respondent denied that his failures were deliberate and the cross-examination did not identify any particular information which it could confidently be concluded he was aware of at a relevant time and deliberately withheld. Whether he was recklessly indifferent to the adequacy of his disclosure was not a topic explored in his cross-examination on behalf of the Prothonotary.
In addition the deficiencies in his disclosures were not consistent only with his having decided to provide limited disclosure so as to keep material revealing dishonest or otherwise unsatisfactory conduct from the LPAB or the Law Society. For example, in relation to the October and November 2002 offences, he did disclose that he had given the police a false name, driven whilst his licence was cancelled, and obtained a driver's licence by making a false statement.
In our view the respondent's explanations as to why his disclosure was seriously deficient are plausible, and not clearly demonstrated to be untrue. Unfortunately, those explanations do not assist him in relation to the third of the grounds relied upon by the Prothonotary because they support a conclusion that he had no appreciation of the content and importance of his obligation of candour.
He was called upon by that obligation, and the express terms of declaration 6.12, to disclose to the LPAB, and later the Law Society, all of the circumstances of his past misconduct which were likely to reflect adversely on his character and fitness to practise as a lawyer. In response to that obligation, and notwithstanding that he did not have a good recollection of those events and circumstances, the respondent thought it sufficient to disclose details of some of the offences of which he was convicted, together with an incomplete and confused recollection of some of the circumstances in which those offences were committed. He describes his approach as "lazy". His evidence does not show he appreciated at any time that in making disclosure he was required to focus on and disclose the aspects of his past misconduct that involved dishonesty or revealed a disrespect for the rule of law or otherwise affected his suitability to engage in the activities and enjoy the privileges referred to by Spigelman CJ in Cummins at [19]-[20].
The second of the considerations which arises in a case such as the present is whether the deficiencies of character revealed by past misconduct are shown to be no longer present. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, this Court approved the following statement by Walsh JA in Ex parte Tziniolos; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 460-461 as to the approach to be taken to this question: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant …
In this case, to the extent that there is evidence directed to this question, it does not assist the respondent. The offences committed in April 2010 and December 2013 reveal, in the case of the latter, a continuing preparedness to lie or deceive, and, in the case of the former, an unwillingness to comply with the law. In April 2010, the respondent ignored the fact that his licence had been suspended and, having consumed further alcohol, returned to his vehicle and drove it away. He accepted that in doing so he showed a "complete disregard or disrespect for the authority of the law" (tcpt 04/12/15, p 38). The incident in late December 2013 again involved his lying to the police.
The fact that he may have been intoxicated on each of these occasions does not explain the relevant conduct or justify ignoring it on the basis that it does not reveal a continuing preparedness to lie or deceive and an absence of respect for the law.
The evidence before this Court does not otherwise justify the conclusion that the deficiencies in character revealed by the respondent's earlier conduct are no longer present. For instance, there was no evidence from any persons with whom he has practised as a solicitor or for whom he has acted which shows, by the responsibilities and tasks he has been given and carried out, that his character and conduct have changed: compare the extensive evidence concerning the applicant's subsequent career in Ex parte Lenehan, as described in the judgment of the majority at 422-423.
By way of summary, the respondent's conduct before 2006 reveals serious deficiencies in character and attitude. He has acted dishonestly, deceiving courts, the police and other authorities. He has also acted in disregard of the law and of the rights of others. His more recent conduct is consistent with the continuing presence of those deficiencies in character. Furthermore his failure to make full and frank disclosure of that conduct shows an insufficient level of insight into the respects in which that conduct was seriously unsatisfactory, having been committed by someone seeking admission as a lawyer. As well as being a breach of his obligation of candour, those failures demonstrate a lack of understanding on his part of the content and importance of that obligation. For these reasons we are satisfied that presently the respondent is not a person of good fame and character, and not a fit and proper person to remain on the Roll of Lawyers.
Accordingly, the Court makes the following declarations and orders:
Declare that Cesar Dario Montenegro is not a person of good fame and character.
Declare that Cesar Dario Montenegro is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of New South Wales.
Order that the name of Cesar Dario Montenegro be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales.
Order that Cesar Dario Montenegro pay the Prothonotary's costs of the proceedings.

SCHEDULE Offence Date Offence Court Outcome 29 January 1999 Drive whilst licence cancelled Fairfield Local Court (11 February 1999) Fined $400, Disqualified for 12 months Drive whilst disqualified Fined $100, Disqualified for 2 years 23 December 1999 Possession of prohibited drug Liverpool Local Court (12 January 2000) Fined $50 Proceed through red/yellow traffic light Fined $150 Destroy or damage property less than $2,000 Community Service Order for 100 hours 5 March 2000 Destroy or damage property between $5,000-$15,000 North Sydney Local Court (1 August 2000) Pay $1,500 in compensation Destroy or damage property less than $2,000 2 September 2000 Larceny less than $2,000 Liverpool Local Court (31 January 2001) Bond (s 9) for 12 months, Fined $250 Possession of Australian Driver's Licence with intent to deceive Fined $200 13 October 2002 Driver providing false name and address Liverpool Local Court (6 November 2002, 26 March 2003, 7 August 2003) Fined $400 Driving whilst licence cancelled Bond (s 9) for 12 months (revoked 7 August 2003 and suspended sentence of imprisonment for 6 months with 6 months' good behaviour bond entered), Disqualification for 2 years Driving in a dangerous manner Driving whilst licence cancelled 20 October 2002 Driver giving false name and address Liverpool Local Court (6 November 2002, 26 March 2003) Charges withdrawn 26 March 2003. Exceeding speed limit by more than 45 km/h Refusing to produce licence Driving whilst licence cancelled Community Service Order for 100 hours (revoked 7 August 2003 and suspended sentence of imprisonment for 6 months with 6 months' good behaviour bond entered), Disqualified for 2 years 4 November 2002 Possessing licence obtained by dishonest means Liverpool Local Court (6 November 2002, 26 March 2003, 7 August 2003) Fined $300 Obtaining licence by false statement Fined $300 26 June 2004 Driving whilst disqualified Liverpool Local Court (30 September 2005) Good behaviour bond for 18 months. Drive with middle range PCA Fined $800, Disqualified for 12 months, Good behaviour bond (s 9) for 2 years 24-25 April 2010 Drive with middle range PCA Blacktown Local Court (2 November 2010) Fined $800, Disqualified for 2 years, Good behaviour bond (s 9) for 2 years Drive while licence suspended Fined $800, Disqualified for 2 years, Good behaviour bond (s 9) for 2 years 16 December 2013 Recklessly or intentionally damaging property Parramatta Local Court (29 January 2014) Fined $500

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2015

Legal Profession Act 2004(NSW)

Legal Profession Admission Rules 2005(NSW)

Legal Profession Regulation 2005(NSW)

Judgment

THE COURT: This is an application under s 23(1)(b) of the Legal Profession Uniform Law (NSW), which is applied as a law of this State by the Legal Profession Uniform Law Application Act 2014 (NSW). Section 23(1)(b) provides that the Supreme Court may order the removal of the name of a person from the Supreme Court Roll of Lawyers on the recommendation of the "designated local regulatory authority". The Prothonotary is the relevant authority for the purposes of that section: Uniform Law Application Act, s 11(2). As the proceedings are brought in the exercise of the Supreme Court's disciplinary power, they are assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(k); Supreme Court Rules 1970 (NSW), Pt 65A, r 2; Prothonotary of the Supreme Court of New South Wales v van Es [2014] NSWCA 169 at [5].

Prothonotary of the Supreme Court of New South Wales v Montenegro

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (12)

Cited By (15)