Montenegro v Legal Profession Admission Board

1. [1]

   FREE JA: By notice of motion filed on 7 October 2025, the applicant (Mr Montenegro) relevantly seeks an order pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) referring him to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for the provision of legal assistance in relation to the proceedings.

2. [2]

   The substantive proceedings to which this application relates arise from Mr Montenegro’s unsuccessful attempts to obtain from the respondent (LPAB) a compliance certificate, under s 19 of the Legal Profession Uniform Law (NSW) (Uniform Law), for the purposes of obtaining admission (or, in his case, readmission) as a legal practitioner under s 16 of the Uniform Law. According to Mr Montenegro’s initiating process the LPAB made relevant decisions in this regard on 18 June 2024 and 8 October 2024. On 9 September 2025 Mr Montenegro filed a “final amended summons” in which he seeks to review and quash those decisions on various grounds, and relief extending to orders in the nature of mandamus requiring reconsideration of his applications by the LPAB and, more ambitiously, a declaration that he satisfies all the requirements for admission. The final amended summons raises a number of grounds going to the procedure adopted by the LPAB, including alleged bad faith, bias or apprehended bias and legal errors affecting the criteria applied, or erroneously not applied, by the LPAB.

3. [3]

   The Council of the Law Society was previously a party to the proceedings, but was removed by order of Harrison JA on 2 October 2025.

4. [4]

   In support of his application for an order for referral under r 7.36 of the UCPR Mr Montenegro relies on an affidavit that he affirmed on 7 October 2025. In his affidavit Mr Montenegro has expanded on his grounds of complaint about the validity of the decisions made by the LPAB, including to complain about perceived conflicts of interest because of the involvement of particular decision-makers and questions about the constitutional appropriateness of involving judicial officers in the process of decision-making. Mr Montenegro says that his claim raises complex and important issues that extend “well beyond” his personal capacity. He explains that he is not in full-time employment and cannot afford private representation. He is on social security and holds a pensioner’s concession card as a result of disabilities from which he suffers.

5. [5]

   Mr Montenegro has also foreshadowed that he wishes to subpoena the Law Society to obtain what he says are relevant documents relating to the decision-making process that has been adopted. Although Mr Montenegro initially sought leave to issue such a subpoena as part of his notice of motion of 7 October 2025, he has since confirmed that he will not press that application pending the resolution of his request to be referred for pro bono assistance. This is a prudent course. If the referral occurs and there is a barrister prepared to accept the referral, one of the benefits of receiving such assistance would be to assist Mr Montenegro in deciding if it is appropriate to subpoena the Law Society and, if so, for what material.

6. [6]

   The LPAB has indicated that it does not oppose Mr Montenegro being referred for assistance under r 7.36. Both parties requested that the application be dealt with in their absence, on the papers, and the Court has adopted that approach.

Considerations arising under r 7.36

1. [7]

   In considering whether to make an order for referral under r 7.36(1) the Court may take into account the matters specified in r 7.36(2), namely the means of the relevant 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 the Court considers appropriate. In the present case the affidavit evidence of Mr Montenegro has demonstrated that he lacks the means to obtain legal advice and representation in respect of his matter. On the question of capacity Mr Montenegro has also properly and sensibly acknowledged that he has raised (or at least is seeking potentially to raise) issues that are beyond his capacity to deal with in an effective way.

2. [8]

   Mr Montenegro has not been the subject of a referral within the last three years, so the additional condition that can apply under r 7.36(2A) is not engaged.

3. [9]

   The nature of the Pro Bono Panel and the proper approach to be adopted in considering applications for referral have been the subject of a number of decisions of this Court: see, in particular, Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [10]-[13] and Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12] (Renshaw). One important consideration is that pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated: Renshaw at [11]. These concerns arise in circumstances where a solicitor or barrister who is prepared to accept a referral becomes subject to obligations under the rules (UCPR r 7.38) and can only cease to provide assistance when permitted to do so (UCPR rr 7.39 and 7.40). Referrals ought therefore not be given lightly or unthinkingly. One principle that emerges from these considerations is that the Court should ordinarily be reluctant to refer a litigant for legal assistance under r 7.36(1) in relation to a matter that appears to be without merit: Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 (Dafaalla) at [9].

4. [10]

   Viewed narrowly in terms of the efficient conduct of the litigation, there is no doubt that it would be in the interests of justice for Mr Montenegro to receive legal assistance of one kind or another in circumstances where he has brought a challenge to the validity of LPAB decisions, but lacks the capacity on his own to advance that case. With the benefit of legal assistance, Mr Montenegro may well be in a position to refine his case, if it is otherwise considered with the benefit of advice to be viable. That outcome would be in his interests, the interests of the LPAB as the respondent and the Court in having to hear and determine the matter. That in itself is not determinative, particularly as the interests of justice have broader dimensions, which include maintaining discipline on the giving of referrals under r 7.36 and the sustainability of the Pro Bono Panel scheme.

5. [11]

   An important consideration in the present matter is that the issues sought to be raised by Mr Montenegro are relatively confined. The precise formulation of any claim is itself a matter that could change in light of any legal assistance provided, but as presently formulated the matter involves judicial review of identified decisions, with a number of grounds of review already raised. Without seeking to express any view about the merits of those grounds, beyond observing that this is not a case which is evidently lacking in merit to the point of being inappropriate for referral, they are reasonably capable of being understood. The significance of these factors is that they make this matter a reasonably contained one that may be dealt with relatively efficiently by a barrister who is prepared to accept a referral. While every referral involves a significant burden on the resources and goodwill of the profession, a factor favouring the present application is that there is a good prospect that it could be dealt with in a way that is reasonably efficient and productive. Importantly, accepting a referral to advise would not involve an open-ended and unpredictable commitment of time and resources. This improves the prospect of a referral being accepted. It also limits the extent of the burden on the scheme.

6. [12]

   Mr Montenegro’s application seeks a general referral for “legal assistance”. I apprehend from his affidavit that Mr Montenegro would ideally like to be represented by a pro bono solicitor or barrister, and not merely have the benefit of their advice. Pursuant to r 7.37 of the UCPR the Court may make an order for referral of a more confined nature by specifying the nature of assistance to be provided.

7. [13]

   In the circumstances of the present case, I am persuaded that it is in the interests of justice to make a more confined order, namely an order for referral for the provision of advice in relation to proceedings. That would occur in the context of the existing scheme which involves referral to the Bar Association for consideration by barristers who are members of the association. A referral of that contained nature may be more likely to be accepted by a barrister than a referral requiring them to commit to representation of Mr Montenegro. It is also likely to be of considerable value to Mr Montenegro in understanding, refining and advancing his claims, if they are confirmed to be viable. It may transpire from the provision of such advice that amendments to the “final amended summons” are required. However, I do not consider it to be in the interests of justice to make the preparation of such a document an express part of the referral. In adopting that approach I am mindful that Mr Montenegro has shown himself capable of drafting documents which are reasonably intelligible, and with the benefit of legal advice he may well be in a position to give effect to that advice. A referral to provide advice could potentially lead to an arrangement for pro bono representation, and if necessary the Court may give further consideration to an additional referral of that kind at a later point: Dafaalla at [14].

8. [14]

   I am therefore satisfied that it is appropriate to order pursuant to r 7.36(1) of the UCPR that the applicant is referred to the registrar for referral to a barrister on the Pro Bono Panel for the provision of advice in relation to the proceedings.