Montenegro v Legal Profession Admission Board (No 2)

1. [1]

   THE COURT: This is an application for review of a decision of Stern JA to dismiss a notice of motion filed by the applicant: Montenegro v Legal Profession Admission Board [2026] NSWCA 21. The applicant’s notice of motion sought production of documents, discovery and provision of information from the respondent, the Legal Profession Admission Board (Board), and, upon compliance with such orders, leave to file and serve a further amended summons and further affidavit evidence.

2. [2]

   In the underlying proceedings, the applicant seeks judicial review of two decisions of the Board. In the first decision, made on 18 June 2024, the Board refused to issue a compliance certificate to the applicant under s 19 of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law) (the June 2024 decision). In the second decision, made on 8 October 2024, the Board refused to reconsider the June 2024 decision (the October 2024 decision).

3. [3]

   Section 46(4) of the Supreme Court Act 1970 (NSW) provides that the Court of Appeal may discharge or vary a judgment given by a Judge of Appeal. In Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152 (“Emmott”) at [27], the Court (Leeming, Mitchelmore and Free JJA), made the following observations about the nature of applications made under s 46(4) and what an applicant must establish:

4. [4]

   On 20 May 2026, the Court decided to determine the application for review on the papers, reserving its reasons for that decision to be delivered at the same time as the judgment on the application. Those reasons are set out below. For the reasons that are also set out below, the applicant has not established error in Stern JA’s decision of the kind required by s 46(4) of the Supreme Court Act. It follows that his application for review of her Honour’s decision will be dismissed.

Decision to determine the application for review on the papers

1. [5]

   The applicant’s notice of motion for review was first listed for hearing on 22 April 2026. On 20 April 2026, the applicant sent an email to the Registrar of the Court of Appeal (Registrar), copying the Board’s solicitors, seeking an adjournment of the hearing for a period of two weeks. The applicant attached to his email a Disability Support Pension Statement dated 7 February 2026 for the period 16 November 2025 to 7 February 2026, along with a copy of a letter from Dr Chingching Zhao, dated 19 April 2026, which relevantly stated:

2. [6]

   By email dated 20 April 2026, the Board’s solicitors indicated that the Board opposed the adjournment application. However, the solicitors stated that, as an alternative, the Board would consent to the applicant’s motion being dealt with on the papers. Shortly after the solicitors sent that email, the applicant emailed the Registrar, opposing determination of the application on the papers. On the morning of 21 April 2026, the applicant sent a further email indicating that a one-week adjournment would be sufficient.

3. [7]

   On 21 April 2026, the Court adjourned the hearing to 13 May 2026. In doing so, it made the following orders, after giving the parties an opportunity to inform the Court of their attitude to what was proposed:

4. [8]

   On the evening of 11 May 2026, the applicant sent an email to the Registrar, requesting an adjournment of the hearing listed for 13 May 2026, for two weeks. In support of that application, the applicant provided another letter from Dr Zhao, dated 11 May 2026. The body of the letter was in almost identical terms to the letter dated 19 April 2026, save for a reference to the nature of the applicant’s recent exacerbation in symptoms as “ongoing”, and a change to the date for which the applicant “will not be able to attend court in person or via audiovisual link”, to “Wednesday 13th May 2026”. The applicant also provided the earlier letter from Dr Zhao and the Disability Support Pension Statement, and an unsworn affidavit dated 11 May 2026.

5. [9]

   In the affidavit, the applicant stated that the matters the subject of the notice of motion required oral clarification and engagement with the Court, and that determination on the papers would prejudice him in circumstances where the Board had relied on the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and claims of privilege to resist scrutiny of the matters raised in the proceedings. The applicant stated:

6. [10]

   The Registrar requested that the Board indicate its position on what was in substance a further adjournment application and brief written submissions by 3pm on 12 May 2026. The Board provided written submissions in which it opposed the application and, pursuant to the orders that the Court made on 21 April 2026, sought orders that the hearing be vacated and that the applicant’s notice of motion be determined on the papers. In summary, the Board submitted that the medical evidence that the applicant had provided was insufficient to satisfy the Court that an adjournment should be granted, and that no prejudice would be occasioned to the parties if the Court determined the matter on the basis of the parties’ written submissions.

7. [11]

   Following receipt of the Board’s written submissions, the Registrar notified the parties that the Court would vacate the hearing on 13 May 2026. In circumstances where the material that the applicant provided on 11 May 2026 requested further time for a hearing, the Registrar informed the parties that the Court would treat that material as an application for the purposes of order 2 of the orders made on 21 April 2026. The Board’s written submissions of 12 May 2026 addressed that material. Accordingly, the Court granted leave to the applicant to file and serve any written submissions in reply to the Board’s submissions by 5pm on 19 May 2026 and indicated that it would, after that time, determine if the applicant’s notice of motion would again be listed for an oral hearing (as the applicant requested) or determined on the papers (as the Board requested).

8. [12]

   The applicant filed written submissions on 13 May 2026. He submitted that, to the Board’s knowledge, he had longstanding medical circumstances and related limitations, including prior hearings that had to be vacated or adjourned due to the same underlying conditions. He submitted that he continued to experience substantial disruption from the conditions, “including severe pain and swelling, mental fog, fatigue, disruption to sleep patterns, and reduced capacity to adequately prepare for and present oral argument”.

9. [13]

   The applicant also submitted that the review application raised public law issues and was not appropriately reduced to a paper determination. He reiterated the content of his unsworn affidavit in relation to the issues arising on the review application (see [9] above), and added that the application also raised issues concerning whether the Board “may thereafter rely upon the absence of documents recording the particulars of the conflict as a basis to resist scrutiny and production”. He relied on the fact that the Board had thus far been successful notwithstanding his reliance on statutory obligations, conflict management policies and code of conduct requirements, as well as the Board’s acceptance that such policies and code requirements applied to it.

10. [14]

    The applicant submitted that an oral hearing was necessary because the issues raised on the notice of motion were “susceptible to being compressed into a narrower framework than that contended for”. He relied by analogy in this respect on the caution expressed in Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”) at [24] as telling against the use of truncated procedures in a manner that may inhibit the proper development and consideration of legal issues. He submitted that the issues were capable of bearing on future exercises of statutory decision-making power, future conflict management, and record keeping practices “extending well beyond the respondent”.

11. [15]

    The present application is distinguishable from the application at issue in Spencer, which involved summary dismissal. As French CJ and Gummow J noted in Spencer at [24], exercising the power of summary dismissal “must always be attended with caution”. Their Honours referred to a passage in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] as providing the reason for caution, namely, that “[o]rdinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes”.

12. [16]

    The present case, by contrast, involves one of the usual interlocutory processes, namely, a notice of motion for production and/or discovery of documents and information. In reviewing Stern JA’s decision to dismiss that notice of motion, the Court is considering only whether the decision is affected by “a material error of law or fact, or a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong”: Emmott at [27]. While the Court must have a general understanding of the issues in the underlying proceedings in order to address those questions, the Court is not finally determining the issues that arise in the judicial review proceedings. The applicant’s submissions regarding the broader significance of the present application were overstated.

13. [17]

    The applicant’s review application was listed for hearing on two occasions. Both listings were vacated following a request from the applicant. The medical evidence that the applicant submitted in support of those requests provided only a general description of his chronic symptoms. It did not identify the specific symptoms he was suffering at the time, the exacerbation of which rendered him unable to attend court in person or by audiovisual link (AVL) on the two occasions the matter was listed. However, what the evidence does indicate is that the exacerbation of the applicant’s symptoms is unpredictable. Even if the Court were to give the matter a further hearing date, it could not be confident that the applicant would be sufficiently well to attend in person or by AVL.

14. [18]

    The Court may order that a notice of motion be determined on the papers, pursuant to both its inherent powers and s 62(3)(e) of the Civil Procedure Act 2005 (NSW): Kostov v Zhang (No 2) [2016] NSWCA 279 at [17]. In exercising the power in s 62, the Court must seek to give effect to the overriding purpose of the Act, in s 56(1), of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56(2). Other objects that the Court must consider include the efficient use of judicial resources and the timely disposal of proceedings: s 57(1).

15. [19]

    The Court is prepared to accept for present purposes that the application has consequences for the applicant’s judicial review proceedings. However, the question on the application is limited, and in resolving it the Court has the assistance of detailed written submissions from the applicant, filed 24 March 2026, written submissions from the Board, filed 1 April 2026, and a written reply from the applicant, filed 8 April 2026. Having regard to the issues arising on the notice of motion, the vacation of the hearing on two occasions, and the uncertainty that the applicant’s medical issues present in terms of fixing a further hearing date, the Court concluded that the motion was one that it should proceed to determine on the papers. It advised the parties accordingly.

Determination of the notice of motion for review

1. [20]

   The background to the notice of motion that Stern JA determined is set out in her Honour’s reasons. Paragraph references below are to those reasons.

2. [21]

   In 2015, this Court ordered that the applicant be removed from the Local Roll of Lawyers in the Supreme Court of New South Wales, and declared that he was not a person of good fame and character or a fit and proper person to remain on the Roll: Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409.

3. [22]

   In December 2017, the applicant applied to the Board, pursuant to r 14 of the Legal Profession Uniform Admission Rules 2015 (NSW), requesting a compliance certificate under s 19 of the Uniform Law (readmission application). On 16 June 2020, the Board refused the readmission application (the 2020 decision): at [15]. Proceedings challenging that decision were discontinued in 2022, although the applicant is seeking to have the discontinuance set aside: at [15].

4. [23]

   In August 2022, the applicant made a further readmission application: at [16]. The Board’s first substantive consideration of that application occurred in a Board meeting in February 2024, at which time the Board resolved to: (i) defer determination of the application until April 2024, (ii) invite the applicant to provide further submissions in support of his application, (iii) request that the Legal Officer prepare draft recommended reasons in respect of the application, and (iv) appoint a sub-committee for the purposes of reviewing those draft recommended reasons. The minutes of the February 2024 Board meeting recorded that the then-President of the Law Society of New South Wales, Jennifer Ball, declared an interest in the applicant’s application and abstained from discussing and voting on the matter: at [18]-[19].

5. [24]

   The Board did not make the substantive decision on the application at the April 2024 Boad meeting: at [20]. At its meeting on 18 June 2024, the Board made the June 2024 decision, at which time it resolved to “adopt the Reasons” for the refusal of the applicant’s application. The minutes of the June 2024 Board meeting also recorded that Ms Ball declared a conflict of interest in the matter: at [21].

6. [25]

   Between 25 June and 8 July 2024, the applicant requested that the Board reconsider the June 2024 decision, alleging that the Board erred in its reasoning, failed to consider certain matters and made mistakes of fact (the reconsideration request): at [22]. The Board’s first substantive discussion of the reconsideration request occurred during the August 2024 Board meeting, when the Board resolved to defer the determination of the request until October 2024 and to request further submissions from the applicant about certain matters: at [22].

7. [26]

   At its meeting on 8 October 2024, the Board considered the applicant’s reconsideration request: at [23]. Although the minutes did not state that a decision was made on that request, Stern JA considered it “likely” that the decision was made, and the reasons adopted, on that occasion: at [23]. The minutes for this Board meeting did not record that Ms Ball made any declaration of a conflict of interest or abstained from decision-making: at [23].

8. [27]

   The applicant commenced the proceedings on 28 October 2024: at [2]. On 9 September 2025, the applicant filed a Final Amended Summons (Amended Summons), which alleges that the June 2024 decision and the October 2024 decision were affected by jurisdictional error, denial of procedural fairness, error of law, abuse of process, unlawful discrimination, actual or apprehended bias and bad faith. The Amended Summons seeks the following relief:

   1. (1)

      Relief in the nature of certiorari, quashing the June 2024 decision and the October 2024 decision.

   2. (2)

      Relief in the nature of mandamus, directing the Board to issue a compliance certificate for the purposes of the applicant’s readmission application.

   3. (3)

      In the alternative, a declaration that the applicant satisfies all requirements for readmission and/or relief in the nature of mandamus, directing the Board to reconsider the applicant’s readmission application.

9. [28]

   On 17 September 2025, the applicant served a notice to produce on the Board seeking the minutes of Board meetings dated between February 2023 and October 2024: at [13]. On 1 October 2025, the Board produced Board meeting minutes to the applicant with substantial redactions. Following the receipt of this production, the applicant served six further notices to produce on the Board between 2 October 2025 and 8 December 2025, as well as making a series of informal requests by email for information regarding the conflict of interest disclosed by Ms Ball.

10. [29]

    The Board, through its solicitors, responded to these various requests. Of some significance to the notice of motion before her Honour was a letter from the Board’s solicitors to the applicant, dated 26 November 2025, which included the following:

11. [30]

    The Amended Summons does not include a ground of review that addresses Ms Ball’s declared conflict in the applicant’s application. However, the applicant contended that the minutes produced by the Board on 1 October 2025, and the disclosures therein of Ms Ball’s declared interest, altered the nature and scope of his application for judicial review. It followed, he contended, that he needed to file a further amended summons with updated particulars, and would require the production or discovery of additional documents in order to do so: at [3].

12. [31]

    By notice of motion dated 15 January 2026, the applicant sought production or discovery of additional documents, provision of information from the Board on various matters and, subsequently, leave to file and serve a further amended summons and to file and rely upon further affidavit evidence: at [1].

13. [32]

    The document requests constituted prayers 1 to 4 of the notice of motion: at [7]-[8]. Given the relevance of the particulars of these prayers to Stern JA’s reasons for judgment, it is convenient to reproduce them:

14. [33]

    The information request constituted prayer 5. By that paragraph, the applicant requested that the Board identify with precision the factual matters said to give rise to the conflict of interest referred to in the Crown Solicitor’s letter dated 26 November 2025, and whether that conflict of interest was identified before it was first declared in the Board minutes: at [9]. Prayer 6 was ultimately not pressed: at [10]. Prayers 7 and 8 concerned the applicant’s requests for leave to file and serve a further amended summons and to file and rely upon further affidavit evidence: at [11].

15. [34]

    Her Honour did not accept the applicant’s submission that documents which formed part of the Board’s decision-making record were necessarily subject to production or discovery. Her Honour observed that there was no principle entitling a plaintiff to the automatic production and inspection of all materials that came to the Board’s attention in the course of exercising its statutory decision-making role. Her Honour stated that the question turns on the specificity of the requests made and the relevance of the documents sought to the grounds relied upon in the judicial review proceedings: at [75].

16. [35]

    In considering this question, her Honour had regard to both the Amended Summons and a Draft Amended Summons (draft Further Amended Summons), which advanced “somewhat different grounds”: at [24]-[25]. The draft Further Amended Summons was provided to the Board on 10 December 2025 but was not filed, as the applicant contended that he needed the documents sought in the notice of motion to particularise the case: a [5]. Nonetheless, he anticipated that any further amended summons would be “more or less” in the form of the draft Further Amended Summons, subject to refinement: at [5].

17. [36]

    The Court notes in passing that on the present application, by affidavit affirmed 24 March 2026, the applicant annexed a copy of a Further Amended Summons dated 6 March 2026. The Board noted in its written submissions that this document was in a different form to the draft summons that was before Stern JA, and further noted that the applicant has not been granted leave to file any further summons. Three of the five amended grounds in this document overlap with grounds in the draft Further Amended Summons that was before Stern JA, albeit with none of the accompanying detail. The only additional grounds would appear to be one alleging that the decision was made by an improperly constituted decision-maker (proposed ground 2), and a failure to maintain an adequate decision record demonstrating lawful exercise of statutory power (proposed ground 3).

18. [37]

    Her Honour summarised the substance of the Amended Summons and the draft Further Amended Summons as raising three key issues to which the applicant contended the documents sought on the notice of motion were relevant (at [26]):

    1. (1)

       whether the Board failed to comply with substantive and procedural requirements as to the recording and management of conflicts of interest and to consider the nature and effect of Ms Ball’s conflict of interest (the conflicts procedure issue);

    2. (2)

       whether Ms Ball participated in Board meetings or was involved in considering the applicant’s application in circumstances where she had a conflict of interest by reason of her having held senior office within the Law Society of New South Wales, so as to give rise to actual or apprehended bias within the meaning prescribed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (the conflict of interest issue); and

    3. (3)

       whether the resolutions of the Board during the February 2024 Board meeting and the preparation of draft reasons, at a time when the applicant was still providing submissions to the Board, were indicative of the Board having had a closed mind since February 2024 (the prejudgment issue).

19. [38]

    Her Honour dismissed prayer 1 (the request for meeting minutes and agendas dated 1 January 2017 to 31 December 2020) on the basis of relevance, as the documents sought related to a period more than three years before the earliest of the Board’s decisions under challenge: at [65]. In that context, her Honour rejected the applicant’s submission that the relevance of those early documents lay in disclosing whether Ms Ball had a conflict of interest in the 2020 decision which “carried over”: at [65].

20. [39]

    The documents sought by prayer 2 (draft reasons and draft supplementary reasons dated 7 February 2023 to 31 December 2024) were the subject of a claim for legal professional privilege. Her Honour concluded that the draft reasons were prepared for the purpose of the Legal Officer of the Board, Leigh Plater, giving legal advice regarding the proper and lawful discharge of the Board’s obligations, and were therefore properly subject to a claim of legal professional privilege: at [67]. Her Honour further held that it would not be consistent with s 56 of the Civil Procedure Act to order production of the documents only for a claim of privilege to be made over them, or to require the Board to prepare a list of documents: at [68]. Her Honour stated that she would have dismissed prayer 2 in any event on the basis of relevance, as the applicant failed to identify how the draft reasons would shed light on the three key issues: at [69]-[71].

21. [40]

    Her Honour also rejected prayer 3 (Board meeting materials dated 1 January 2022 to 31 December 2024) on the basis of relevance. This was because: (i) the Board had already confirmed (via an affidavit of Ms Plater affirmed 9 February 2026) that it had no further documents recording Ms Ball’s conflict or its procedures; and (ii) the minutes already produced had disclosed that the first substantive consideration of the applicant’s application for readmission occurred during the February 2024 Board meeting and, therefore, the materials predating that meeting were unlikely to be relevant: at [31], [73].

22. [41]

    Prayer 4 sought the same documents the subject of prayers 1 to 3 inclusive, but by way of discovery. Her Honour dismissed prayer 4 for the same reasons identified above, observing that discovery also requires that the documents sought are relevant to the facts in issue, citing r 21.2(4) of the UCPR and Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 (Brereton J) at [21]-[22]. Her Honour also concluded that the applicant’s production and discovery requests could be described as a “fishing expedition”: at [72].

23. [42]

    Prayer 5 requested information concerning the conflict of interest declared by Ms Ball. Her Honour considered that the request could not properly be characterised as a request for particulars because it did not arise from any pleading, affidavit or statement upon which the Board relied: at [79]. To the extent that the prayer sought an order for interrogatories, her Honour observed that the Court would need to be satisfied that such an order was necessary in the interests of a fair trial: Boyle v Downs [1979] 1 NSWLR 192 at 204-205 (Cross J); Yamazaki v Mustaca [1999] NSWSC 1083 at [4] (Sully J); In the Matter of Olsen Infrastructure Pty Limited [2012] NSWSC 1202 at [2] (Brereton J). Her Honour was not so satisfied, noting that the Board had already confirmed that it was not aware of the nature of Ms Ball’s conflict of interest, which was declared before any substantive consideration by the Board of the applicant’s application for readmission: at [80]-[81]. It followed that prayer 5 was also dismissed: at [82].

24. [43]

    As noted above, prayer 6 was not pressed. Her Honour dismissed prayer 7 (the request for leave to file and rely on a further amended summons) on the basis that the form of the proposed summons was not before the Court, noting the applicant’s description of the draft summons as “rough” or “very rough” and “subject to refinement”: at [5], [84]. As to prayer 8, which was contingent upon the applicant having succeeded on the other prayers for relief, her Honour concluded that it did not arise for decision: at [85].

The application for review of her Honour’s decision

1. [44]

   In his written submissions filed 24 March 2026, the applicant advanced a series of alleged errors on the part of her Honour.

2. [45]

   First, the applicant submitted that her Honour erroneously assessed relevance by reference to the prejudgment issue only, notwithstanding that the documents sought under prayers 1-4 were also relevant to the applicant’s pleaded grounds of apprehended bias and denial of procedural fairness. The applicant submitted that, in assessing relevance in this way, her Honour unduly narrowed the consideration such that it excluded documents (such as those prepared after February 2024) which were capable of illuminating whether the Board’s process remained genuinely open, or whether its decisions were affected by a closed mind.

3. [46]

   Contrary to the applicant’s submission, her Honour addressed relevance by reference to each of the three issues that her Honour identified as encapsulating the applicant’s summons and submissions. The prejudgment and conflict of interest issues captured the applicant’s claims regarding apprehended bias, while the conflicts procedure issue captured the applicant’s claims of denial of procedural fairness. In any event, and as the Board submitted, considering whether the documents sought were capable of illuminating whether the Board’s processes and decisions were made with a closed mind would fall within the scope of the prejudgment issue that the applicant accepted her Honour did consider.

4. [47]

   The applicant relatedly submitted that her Honour had indicated a preliminary view during the hearing that documents dated from 6 February 2024 to 8 October 2024, being the period during which the Board made the June 2024 decision and the October 2024 decision, were relevant. Accordingly, he submitted, it was inappropriate for her Honour to refuse their production. Assuming her Honour made such a statement, the Court would not readily infer that a comment made during the hearing of a matter should be taken to be a final conclusion on an issue. The absence of any such finding in her Honour’s reasons tells directly against such an inference.

5. [48]

   The applicant also submitted that in light of her Honour’s acceptance that no documents existed identifying the nature of the conflict of interest declared by Ms Ball, particulars of the conflict became directly relevant to the judicial review inquiry. It followed, he submitted, that her Honour was wrong not to require the Board to identify the factual basis of the declared conflict. This appears to relate to prayer 5 of the notice of motion before her Honour, by which the applicant sought that the Board identify with precision:

6. [49]

   In dismissing prayer 5, which her Honour treated as a request for interrogatories, her Honour proceeded, correctly, on the basis that an order to answer interrogatories will not be made unless the Court is satisfied that the order is necessary at the time it is made: UCPR, r 22.1(4). In circumstances where the Board had already confirmed, in correspondence, that it was not aware of the factual matters giving rise to the conflict of interest, and Ms Ball had declared her conflict well before any substantive consideration by the Board of the application that was the subject of the June 2024 decision, her Honour was not satisfied that it was necessary to order that the questions posed in prayer 5 be answered: at [81]. In light of the Board’s correspondence (see [29] above), her Honour’s conclusion in this regard was correct.

7. [50]

   The applicant next submitted that her Honour erroneously accepted a categorical claim of legal professional privilege over the draft reasons and agenda materials, without identifying the dominant purpose of the documents in question. In support of this submission, the applicant referred to [27] of Ms Plater’s affidavit, where the documents in question were characterised as including summaries and legal advice covering a broad range of matters. The applicant submitted that the documents were prepared to brief the Board for deliberation and decision-making and that this was distinct from legal advice. Further, the Board’s performance of multiple functions suggested that these documents likely served multi-functional purposes, and were not created solely or predominantly for the purpose of legal advice. It followed, he submitted, that the actual purpose of those documents should have been identified on a document by document basis, so as to determine the privilege claims.

8. [51]

   Her Honour was well aware of the test for legal professional privilege, as is apparent from the reasons at [53]-[56]. Relevantly for present purposes, her Honour noted the following:

   1. (1)

      A communication prepared for the dominant purpose of legal advice or litigation is properly subject to a claim of legal professional privilege under ss 118-119 of the Evidence Act 1995 (NSW): Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67.

   2. (2)

      Communications from a legal adviser providing draft documents, such as draft statements of reasons for decision of a statutory board, may, in effect, set out legal advice that the proposed reasoning reflects a proper legal analysis of the relevant material before the board, complies with the board’s statutory obligations and public law duties, and accords with the client board’s instructions. Her Honour relied by analogy on General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 at [74]; New South Wales v Betfair Pty Ltd (2009) 180 FCR 543; [2009] FCAFC 160 at [21]-[24].

   3. (3)

      If maintainable, legal professional privilege entitles a party to withhold potentially relevant documents from inspection by the other party: GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [57]; UCPR, rr 21.11(1)(a) and 21.5(2)(a).

9. [52]

   In this context, her Honour stated at [57]:

10. [53]

    Far from accepting a categorical claim of legal professional privilege, her Honour accepted only the claim for privilege in relation to draft reasons and supplementary reasons, which fell within the terms of prayer 2 of the applicant’s notice of motion: at [67]. In relation to the documents sought in prayers 1 and 3, it was unnecessary to consider the privilege claims because of her Honour’s conclusion that the documents sought pursuant to those categories were not relevant: at [66], [77].

11. [54]

    In relation to prayer 2, her Honour accepted the privilege claim, having found that the documents sought comprised documents that were prepared for the purpose of “giving legal advice as to the proper and lawful discharge of the Board’s statutory and public law obligations”: at [67]. The applicant took issue with this conclusion, on the basis that it involved accepting a class claim without undertaking any document-specific assessment. The Court has extracted above her Honour’s explanation, at [57], for not undertaking that assessment. In the face of a class of documents that her Honour found was clearly privileged, that approach was available and discloses no error. In any event, any error would not be determinative in light of her Honour’s conclusion that prayer 2 would, in any case, have been set aside on the basis of relevance: at [69].

12. [55]

    The applicant submitted that in circumstances where the minutes of the Board meeting for October 2024 recorded only that the Board “noted the supplementary material”, the materials concerning draft and supplementary reasons were capable of illuminating the process by which the Board arrived at the final reasons. Even if that were the case, the finding regarding legal professional privilege meant that the Board would have been entitled to withhold them from production, which was the point of significance for Stern JA. The applicant also submitted that the fact that the October 2024 Board meeting minutes did not explicitly state that the Board adopted the draft reasons during that meeting supported the fact that the decision record was incomplete. Apart from not identifying any basis on which her Honour’s decision was plainly wrong, this submission does not support production needing to be given of the draft reasons or supplementary reasons.

13. [56]

    The applicant next submitted that her Honour erroneously characterised his document requests as a “fishing expedition”, in circumstances where what he sought arose directly from the Board’s previous production of meeting minutes and was limited to certain date ranges, namely, the decision-making period between 6 February 2024 and 8 October 2024 (this date range did not correspond to the date ranges in prayers 1-3). The applicant submitted that the requests were directed to existing issues and, in particular, sought an explanation for identified gaps in the decision record. However, as her Honour pointed out in summarising the principles applicable to so-called “fishing expeditions” at [48]-[50], the concern with using notices to produce for “fishing” is directed not at the source of the documents, but, rather, at the purpose of seeking them. Her Honour was not satisfied that the applicant had a purpose for the production or discovery that he sought other than to ascertain whether he might have a case. Her Honour’s approach was orthodox. No error has been identified.

14. [57]

    The applicant relatedly submitted that the Board wrongly relied on the absence of a further amended summons as a basis to resist production, in circumstances where he had sought the Board’s consent to file such a document and the Board had refused to consent. The applicant submitted that the Board could not rely on the absence of an amended pleading when the procedural course adopted, whereby the applicant needed to seek leave to amend, was the consequence of its own actions. Even if the Board had adopted this approach, her Honour did not, evaluating the notice of motion on the basis of the current pleading and the amendments that the applicant had proposed at that stage.

15. [58]

    The applicant made a number of further submissions. First, he submitted that her Honour’s reasoning proceeded on a mischaracterisation of the documents he sought. He submitted that her Honour had adopted the Board’s categorisation of the materials, when in fact the documents he sought “comprise the full barrage of materials placed before the Board for the relevant meetings, including draft reasons, supplementary materials, attachments, and any documents forming part of the Board’s deliberative record”. Absent production of this material, the applicant submitted that he was confined to the Board’s “unilateral description of its own decision-making process”, while her Honour’s reasoning had proceeded on an incorrect factual basis, constituting a miscarriage of discretion. The submission that what the applicant sought extended beyond her Honour’s classification of the material does not assist the applicant. Her Honour was not satisfied that any of the material she considered should be produced, at least in part because of a lack of specificity and relevance to the grounds relied on in the judicial review proceedings.

16. [59]

    Next, the applicant submitted that her Honour erroneously treated the lack of recorded particulars of Ms Ball’s declared conflict as reason to find that the surrounding materials were not relevant. As such, her Honour failed to engage with the applicant’s contention that the absence of records is precisely the reason why the surrounding materials are relevant. In support of this submission, the applicant noted that the management of some conflicts may require total exclusion from a decision-making process, beyond disclosure and abstention, such as in circumstances where the presence of an interested decision maker during deliberations is sufficient to give rise to an apprehended bias (citing Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20). The production or discovery of the materials he sought was necessary to determine whether such circumstances arise in this case. Submissions of that nature served only to underline the correctness of her Honour’s concern that the categories of documents that the applicant sought reflected a “fishing expedition”, particularly in circumstances where the Board had already informed the applicant that it had no records regarding the nature of Ms Ball’s conflict of interest.

17. [60]

    The applicant relatedly submitted that her Honour erroneously treated the absence of records as a reason to refuse relief, submitting that the absence of records was itself a matter that supported the necessity to produce what the applicant described as “the underlying materials”. Contrary to the applicant’s submission, her Honour correctly determined that in light of the Board’s notification that it did not have any further documents regarding the conflict of interest, assuming their relevance for present purposes, there was no utility in ordering production of what the applicant sought. No error is disclosed.

18. [61]

    The applicant submitted that, to the extent that prayer 7 was dismissed by her Honour on the basis that the draft Further Amended Summons was not finalised, the imperfect pleadings should have been clarified rather than used as a reason to dismiss the motion (citing Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537, cited in Marino v Bello (No 3) [2022] NSWCA 181; 408 ALR 650). That submission mischaracterises what her Honour did. Far from relying on imperfect pleadings, her Honour provided the applicant with significant flexibility, having regard to the issues arising from the “rough” draft summons in the relevance analysis. Again, the applicant has not established any error in this regard.

19. [62]

    The applicant submitted that the nature of a declared conflict of interest, bearing directly upon the impartiality of the decision-maker, was plainly a procedural fairness issue, and that this heightened the need for access to the underlying materials. Again, given the Board’s confirmation that it was not aware of the factual matters giving rise to the conflict of interest, her Honour was correct to conclude that nothing further was required, and the applicant was merely “fishing”.

Conclusion

1. [63]

   The applicant has not established any error in the decision of her Honour to dismiss his notice of motion. The notice of motion for review filed 6 March 2026 will be dismissed.

2. [64]

   The Board asked that the costs of the motion be reserved. Accordingly, the Court makes the following orders:

   1. (1)

      The applicant’s notice of motion filed on 6 March 2026 is dismissed.

   2. (2)

      Costs are reserved.