Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901

Supreme Court New South Wales

Medium Neutral Citation: Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 Hearing dates: 26 February 2015; 11 September 2015 Date of orders: 15 December 2015 Decision date: 15 December 2015 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff's recusal application refused; decision of Justice Health of 11 December 2014 that the special diet sought by Mr Monteiro was not required for health reasons declared invalid. Catchwords: JUDICIAL REVIEW – application by prisoner for review of decisions relating to conditions of his incarceration – refusal to give prisoner special diet requested for reasons of health – where decision made overlooking clinical indications and without consultation with prisoner – decision not made in good faith

PRACTICE AND PROCEDURE – recusal application – apprehension of bias – whether decision in previous unrelated criminal appeal proceedings demonstrated judicial officer was "right wing, pro-Crown judge"– whether previous decision in earlier interlocutory decision demonstrated judicial officer was "just another pro-Crown empty suit incapable of fairness and impartiality" Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 2A; 72; 223; 236A Crimes (Administration of Sentences) Regulation 2014 (NSW), regs 50; 52; 287 Crimes (Sentencing Procedure) Act 1999 (NSW), s 62 Criminal Appeal Act 1912 (NSW); ss 6; 8 Felons (Civil Proceedings) Act 1981 (NSW); s 4 Uniform Civil Procedure Rules 2005 (NSW), r 59.4 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 Barreto v McMullan [2014] WASCA 152 Clarke v State of New South Wales [2014] NSWSC 801 Fyfe v Bordoni (1998) 199 LSJS 401 Hawi v R [2014] NSWCCA 83 Kaufman v Smith (2001) 124 A Crim R 259 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 McEvoy v Lobban [1990] 2 Qd R 235 McKane v Commissioner of Corrective Services [2015] NSWSC 737 Middleton v Commissioner of Corrective Services (NSW) (2003) 143 A Crim R 364 Minister for Immigration & Ethnic Affairs v Weu Shan Liang (1996) 185 CLR 259 Modica v Commissioner for Corrective Services [1994] 77 A Crim R 82 Monteiro v R [2014] NSWCCA 277 Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 QBE Insurance (Australia) v Miller [2013] NSWCA 442 R v Hawi [2015] NSWSC 206 Category: Principal judgment Parties: Simon Monteiro (plaintiff) State of New South Wales (first defendant) Attorney General of NSW (second defendant) Commissioner of Corrective Services NSW (third defendant) Corrective Services NSW (fourth defendant) GEO Group Australia Pty Ltd (fifth defendant) Justice Health (sixth defendant) Legal Aid Commission (seventh defendant) Law Access New South Wales (eighth defendant) Representation: Counsel: P Godkin (in part) P Herzfeld (third defendant)