Montenegro v Legal Profession Admission Board [2021] NSWSC 1550

Supreme Court New South Wales

Medium Neutral Citation: Montenegro v Legal Profession Admission Board [2021] NSWSC 1550 Hearing dates: 30 November 2021 Date of orders: 30 November 2021 Decision date: 30 November 2021 Jurisdiction: Common Law Before: Dhanji J Decision: (1) Referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance. (2) That assistance is to be as follows: (a) To advise with respect to the proceedings; (b) To settle any further evidence to be relied upon with respect to the proceedings; and (c) To conduct the proceedings. Catchwords: CIVIL PROCEDURE – notice of motion – application for referral to Registrar for Pro Bono Panel for legal assistance – application granted Legislation Cited: Federal Court Rules 2011 (Cth), r 4.12 Uniform Civil Procedure Rules 2005 (NSW), r 7.36, r 7.36(2), r 7.36(2A) Category: Procedural rulings Parties: Cesar Montenegro (Plaintiff) Legal Profession Admission Board (Defendant) Representation: Solicitors: Plaintiff in person Crown Solicitor's Office (NSW) (Defendant) File Number(s): 2020/182135 Publication restriction: Nil

EX TEMPORE Judgment 1. HIS HONOUR: A notice of motion has been brought by Cesar Montenegro ("the plaintiff") seeking an order for referral for pro bono assistance pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). That motion is brought in the context of litigation in which the applicant, who is the plaintiff, has filed an amended summons dated 23 June 2020. The defendant in the proceedings is the Legal Profession Admission Board. 2. The applicant, the plaintiff on the summons, is appealing a decision of the defendant refusing to issue a compliance certificate with respect to his readmission to the Roll of Lawyers of the Supreme Court of New South Wales. That matter has a somewhat lengthy history. It is currently listed for directions on 8 March 2022. I am informed that the matter is well advanced in terms of its preparation although there is the prospect of further evidence being filed. 3. Mr Montenegro informs me that he sought a referral and, indeed, obtained a referral in the District Court last year pursuant to r 7.36 of the UCPR. He further informs me that despite the referral he did not in fact obtain assistance as a result. This is of relevance because r 7.36(2A) provides that the Court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years unless the Court is satisfied that there are special reasons justifying further referral. Having obtained a referral but not having received assistance, the previous event in the District Court does not, in my view, come within r 7.36(2A). 4. The applicant has also informed me that he obtained a referral last year from the Federal Court with respect to proceedings in that Court, brought by him against the Department of Education. The proceedings being in the Federal Court, the referral was pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). That referral is not, in my view, a "previous referral" within r 7.36(2A). That is because, in context, the referral in r 7.36(2A) is a referral to the Registry of this Court, maintaining a list of persons pursuant to r 7.35. In those circumstances, r 7.36(2A) does not impose any additional hurdle on the applicant. 5. The power to make a referral is contained in r 7.36(1). Rule 7.36(2) provides for the purposes of sub-rule (1) that the Court may take into account: the means of the litigant; the capacity of the litigant to obtain legal assistance outside the scheme; the nature and complexity of the proceedings; and any other matter that I consider appropriate. 6. The applicant is currently in receipt of Centrelink benefits and, as I understand it, has no other means by which he could obtain legal assistance. I am not aware of any capacity on the part of the litigant to obtain assistance outside the scheme. 7. The proceedings themselves are a de novo hearing. The central issue is whether the applicant is a fit and proper person for the purposes of admission to the Australian legal profession. In one sense, it is a relatively simple and confined issue. From the brief reading of the history of the matter it is, however, apparent that there are a number of issues and aspects that will require attention and will bear upon the ultimate determination. 8. In circumstances where evidence has been gathered, albeit further evidence may be obtained, it will, in my view, be of assistance not only to the applicant but also to the administration of justice for a barrister to be engaged, as a barrister acting on the applicant's behalf can be expected to bring some focus to the proceedings to assist in the efficient conduct of the litigation and is likely to assist the Court in arriving at a just result. 9. In those circumstances, having formed the view that it is in the interests of the administration of justice to do so, I propose to order that the applicant be referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance. That assistance will be with respect to the settling of any further evidence, and advice with respect to the conduct of proceedings and the conduct of the hearing.