Council of the Law Society of New South Wales v Montenegro

THE COURT: The applicant Council of the Law Society requires and seeks leave to appeal from the judgment and orders of Campbell J of 2 July 2015: Montenegro v Law Society of NSW [2015] NSWSC 867. Leave is required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) because those orders did not involve a matter at issue of the value of $100,000 or more.

The proceeding before the primary judge was an appeal by the respondent under s 108 of the Legal Profession Act 2004 (NSW) from the Council’s decision refusing his application for a practising certificate for the year ending 30 June 2015. The primary judge allowed that appeal, set aside the decision of the Council and made a declaration that:

Although not spelt out, the “circumstances” referred to in that declaration, as is apparent from [92] of his Honour’s reasons, are those relied upon by the Council and the subject of findings made by his Honour.

In the light of this Court’s subsequent decision in Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409, whether the leave sought should be granted directs attention to whether there is any utility in doing so, either as between the parties or in the public interest: Coles v Wood [1981] 1 NSWLR 723 at 727.

In Prothonotary v Montenegro on 18 December 2015 this Court made the following declarations and order:

An application for special leave to appeal from that judgment was dismissed: Montenegro v Prothonotary of the Supreme Court of New South Wales [2016] HCASL 36.

By its proposed notice of appeal, the Council seeks orders reinstating its decision made on 15 January 2015 to refuse the respondent a local practising certificate (for the year ending 30 June 2015) and setting aside the declaration made by the primary judge.

The Council does not maintain that there is any utility between the parties in having the declaration and orders made by the primary judge set aside. The local practising certificate which the Council refused to issue is no longer of any relevance. It would have expired on 30 June 2015. More significantly, any question as to the issue of a further practising certificate can only arise if the respondent applies to be and is admitted to the Local Roll of Lawyers of this Court.

In accordance with the provisions of Pt 2.2 of the Legal Profession Uniform Law (NSW), a prerequisite for such admission remains that the applicant be a “fit and proper person”. The respects in which Mr Montenegro did not answer that description as at December 2015 are the subject of this Court’s decision, which is later in time than the decision of the primary judge.

That decision is a decision of the Court of Appeal, constituted by three judges and exercising its original jurisdiction under s 48(2)(k) of the Supreme Court Act 1970 (NSW). See also Supreme Court Rules 1970 (NSW), Pt 65A, r 2(1). (Whether it is binding in the same way as a decision of this Court exercising its appellate jurisdiction need not be considered: cf Re Lonhro PLC [1990] 2 AC 154 at 201; Wenkart v Pantzer (No 3) (2004) 135 FCR 422 at [94]).

The Council submits that there remains utility, in the public interest, in the setting aside of the declaration made by the primary judge. That declaration is said to be inconsistent with the declarations made by this Court “after consideration of essentially the same circumstances as those found by the primary judge”.

It is also said that an outcome of the setting aside of that declaration would be that “important issues of principle regarding adequate disclosure by an applicant for a practising certificate, and whether an apparent failure to understand proper professional conduct and the obligations of candour means that the applicant for a practising certificate is not a proper person, would be harmonised”.

The first of these submissions is not correct and the second does not identify any respect in which, following the decision of this Court, there is said to be any uncertainty or controversy in relation to the so called issues of principle referred to.

Whilst the declaration as to fitness made by the primary judge, albeit as at an earlier point in time, is inconsistent with the declarations made by this Court, it is not correct to say that this Court’s declarations were made “after consideration of essentially the same circumstances as those found by the primary judge”. As this Court pointed out in its judgment at [25]:

The Prothonotary’s case before this Court, as summarised at [4], was as follows:

Thus the declarations and orders made by this Court take into account a broader range of considerations than those relied on before the primary judge. That being the position, it is to be expected that if at some point in time in the future Mr Montenegro seeks to be admitted to the Australian legal profession, regard would be had to the decision of this Court, as the decision of an intermediate appellate court addressing a broader range of considerations than those addressed by the primary judge. There is no need, in the public interest, that the judgment of the primary judge be set aside to make that plain.

To the extent that consideration of Mr Montenegro’s position is said to have raised “important issues” of principle regarding disclosure and the obligation of candour, those principles are not controversial and have been considered and applied by this Court to the facts which it found.

We conclude that there is no utility between the parties or in the public interest in granting the leave sought. Accordingly leave is refused.

As this application has been dealt with on the papers and Mr Montenegro was not represented, no order is made as to the payment of his costs.