Monteiro v Commissioner of Corrective Services and Justice Health and Forensic Mental Health Network; Monteiro v State of NSW [2022] NSWSC 1489

Supreme Court New South Wales

Medium Neutral Citation: Monteiro v Commissioner of Corrective Services and Justice Health and Forensic Mental Health Network; Monteiro v State of NSW [2022] NSWSC 1489 Hearing dates: 24 August 2022; 31 October 2022 Date of orders: 4 November 2022 Decision date: 04 November 2022 Jurisdiction: Common Law Before: Bellew J Decision: In matter 2021/297999 (referred to in this judgment as the Judicial Review proceedings): (1) The proceedings are dismissed. (2) The respondent, Simon Monteiro, is to pay the costs of the Commissioner of Corrective Services of the proceedings as agreed or assessed. (3) I direct the Registrar to forward a copy of this judgment to the respondent by pre-paid post to the Somersby address which will be provided by my Associate. In matter 2020/70194 (referred to in this judgment as the Revocation proceedings): (1) The proceedings brought by the respondent, Simon Monteiro, by notice of motion on 20 October 2021 seeking the revocation of the Extended Supervision Order made by Fagan J on 6 July 2020 are dismissed. (2) The notice of motion filed by the respondent, Simon Monteiro, on 20 October 2021 seeking a revocation of the Extended Supervision Order made by Fagan J on 6 July 2020 is dismissed. (3) I make no order as to costs. (4) I direct the Registrar to forward a copy of this judgment to the respondent by pre-paid post to the Somersby address which will be provided by my Associate. Catchwords: PRACTICE AND PROCEDURE – Application for summary dismissal of proceedings on the basis that such proceedings are an abuse of process or alternatively are frivolous or vexatious – Where the respondent brought judicial review proceedings against the Commissioner of Corrective Services in respect of decisions made by the Commissioner when the respondent was in custody – Where those decisions impacted upon the respondent's conditions of custody – Where respondent had since been released – Where the Commissioner sought that the proceedings be dismissed – Where the grant of the relief sought would be futile in the circumstances – Proceedings an abuse of process – Proceedings dismissed – Order for costs made against the respondent PRACTICE AND PROCEDURE – Application for dismissal of proceedings for want of prosecution – Where the respondent is the subject of an extended supervision order – Where respondent filed a Notice of Motion seeking that the order be revoked – Where respondent was ordered on two occasions to regularise the proceedings by filing a Summons – Where respondent failed to comply with either order – Where the respondent had remained inert for more than 12 months and had taken no substantive step to prosecute the proceedings – Where the respondent had failed to comply with other orders of the Court – Where the respondent had been given the opportunity to explain those failures and had not done so – Proceedings dismissed – No order made as to costs Legislation Cited: Civil Procedure Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 Crimes (High Risk Offenders Act) 2006 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 Cox v Journeaux (No. 2) (1935); 52 CLR 713; [1935] HCA 48 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gill v Eatts; Gill v Australian Broadcasting Corporation [1999] NSWSC 1056 Hoser v Hartcher [1999] NSWSC 527 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Monteiro v R [2022] NSWCCA 37 Monteiro v State of New South Wales [2022] NSWSC 148 R v Monteiro [2021] NSWDC 340 Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Rock v Henderson [2021] NSWCA 155 State of New South Wales v Monteiro (Final) [2020] NSWSC 881 Stollznow v Calvert (1980) 2 NSWLR 749 Witten v Lombard Australia Ltd (1968) 2 NSWR 529; (1968) 88 WN Pt 1 (NSW) 405 Category: Principal judgment Parties: Proceedings 2021/297999 Commissioner of Corrective Services – Applicant Simon Monteiro – Respondent