Montenegro v Legal Profession Admission Board

1. [1]

   By notice of motion filed on 15 January 2026 (Motion), the applicant (Mr Montenegro) seeks orders for the production of documents, discovery, provision of information from the respondent (Board) and, after compliance with these orders, leave to file and serve a further amended summons and to file and rely upon further affidavit evidence. The underlying proceedings involve an application by Mr Montenegro for judicial review of two decisions of the Board: a refusal dated 18 June 2024 of an application by Mr Montenegro for readmission as a lawyer (June 2024 decision) and a refusal dated 8 October 2024 of a request by Mr Montenegro that the Board reconsider the June 2024 decision (October 2024 decision).

2. [2]

   The summons commencing the proceedings was originally filed on 28 October 2024. Whilst the proceedings had been listed for a final hearing on 18 August 2025 that hearing was vacated by orders of 23 July 2025. On 8 September 2025 Mr Montenegro was ordered to file and serve a final amended summons by 10 October 2025. In response to that order, Mr Montenegro filed a document described as a “Final AMENDED SUMMONS” (Amended Summons) on 9 September 2025.

3. [3]

   Mr Montenegro contends that the documents he seeks in the Motion are required to enable him further to amend the Amended Summons and properly to particularise his grounds for judicial review (although he seeks leave to amend irrespective of whether he otherwise succeeds on the Motion). He contends that the nature and scope of his claim for judicial review were altered when, on 1 October 2025, the Board produced minutes of its meetings in response to a notice to produce which disclosed that, on a number of occasions, Jennifer Ball, a member of the Board and then President of the Law Society of New South Wales, declared a conflict of interest in the matter of Mr Montenegro’s application for readmission as a lawyer.

4. [4]

   By way of further context for the Motion, on 21 October 2025, Free JA granted an application by Mr Montenegro under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.36(1), not opposed by the Board, for referral to the Registrar for referral to a barrister on the Pro Bono Panel for the provision of advice in relation to the proceedings: Montenegro v Legal Profession Admission Board [2025] NSWCA 233. Mr Montenegro explains in an affidavit affirmed by him on 15 January 2026 (January 2026 Affidavit) that:

5. [5]

   On 10 December 2025, Mr Montenegro served on the Board (but did not file) a document headed “DRAFT AMENDED SUMMONS (subject to receipt of Board Minutes 2017-2020)” (Draft Further Amended Summons). In oral submissions he described this as a “rough” or “very rough” draft. He does not seek leave to file or rely upon the Draft Further Amended Summons as he contends that he requires the documents sought in the Motion to “particularise the case”. In his oral submissions he indicated that he anticipated that any further amended summons would be “more or less” in the form of the Draft Further Amended Summons but “subject to refinement”, although he would not wish to be constrained to the grounds set out, or “substantially” to those grounds. He submitted that the amendments would result in “four grounds or five [grounds] max”.

6. [6]

   For the reasons set out below, the Motion should be dismissed and costs reserved.

The Motion

1. [7]

   Prayers 1 to 3 in the Motion are as follows:

   1. (1)

      The First Respondent is to produce to the Court, within 7 days, the Board Minutes of all meetings of the Legal Profession Admission Board, concerning the Applicant’s readmission application, held between 1 January 2017 and 31 December 2020, together with all agendas, supplementary agendas and attachments for those meetings.

   2. (2)

      The First Respondent is to produce to the Court, within 7 days, any draft reasons and draft supplementary reasons considered by the Board in relation to the Applicant’s readmission application between 7 February 2023 and 31 December 2024.

   3. (3)

      The First Respondent is to produce to the Court, within 7 days, all agenda papers, supplementary agendas, briefing materials, decision papers and attachments concerning the Applicant’s readmission application for the period 1 January 2022 to 31 December 2024, that have not previously been produced, including all documents withheld on the basis of legal professional privilege.

2. [8]

   In prayer 4 Mr Montenegro seeks an order for discovery under UCPR, Pt 21, covering the documents sought in prayers 1 to 3 of the Motion.

3. [9]

   In prayer 5 Mr Montenegro seeks that:

4. [10]

   Prayer 6 is not pressed.

5. [11]

   Prayer 7 seeks leave to file and serve a further amended summons within 7 days after compliance by the Board with the orders sought in prayers 1 to 5. Prayer 8 seeks leave to file and rely upon further affidavit evidence “arising from the documents produced pursuant to Orders 1-[5]”, to be filed within 7 days after compliance with those orders.

Evidence on the Motion

1. [12]

   Mr Montenegro read the January 2026 Affidavit (including a 14-page annexure) on the Motion and tendered a 25-page bundle of documents described as “Applicant Tender Bundle” (which included the Draft Further Amended Summons). He also relied (without objection from the Board) upon three documents which were referred to in the January 2026 Affidavit, being a five-page letter dated 7 February 2024 from Mr Riznyczok, the Executive Officer of the Board, to Mr Montenegro (February 2024 letter), a one-page briefing to the Board dated 6 February 2024 (February 2024 briefing) and a resolution recorded in the Board minutes of 6 February 2024 (February 2024 resolution). The reasons for the June and October 2024 decisions (June and October 2024 reasons, respectively) were also tendered, as was the Amended Summons.

2. [13]

   The Board read an affidavit of Leigh Kristen Plater, the Legal Officer of the Board, affirmed 9 February 2026 and tendered Exhibit LP-1, comprising 137 pages and including the bundle of Board minutes (redacted for relevance) covering the period 7 February 2023 to 8 October 2024 which were produced to Mr Montenegro on 1 October 2025 in response to an amended notice to produce served by Mr Montenegro on 17 September 2025 (September 2025 NTP).

Background

1. [14]

   In 2015, this Court ordered that Mr Montenegro’s name be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales. The Court also declared that Mr Montenegro is not a person of good fame and character and not a fit and proper person to remain on the Roll: Prothonotary of Supreme Court of New South Wales v Montenegro [2015] NSWCA 409.

2. [15]

   On 5 December 2017, Mr Montenegro applied to the Board under rule 14 of the Legal Profession Uniform Admission Rules 2015 (NSW) for a compliance certificate under s 19 of the Legal Profession Uniform Law (NSW) (application for readmission). On 16 June 2020, the Board refused this application (2020 decision). By summons filed in June 2020, Mr Montenegro challenged the 2020 decision. Those proceedings, which are separate to these proceedings, were discontinued in 2022, but Mr Montenegro subsequently sought to have the discontinuance orders set aside and a motion relating to that application is before the Registrar for directions on 19 March 2026.

3. [16]

   On 26 August 2022, Mr Montenegro made a further application for readmission (second application for readmission).

4. [17]

   As is apparent from the documents produced in response to the September 2025 NTP, which sought minutes of Board meetings on 11 dates between 7 February 2023 and 8 October 2024 insofar as they recorded any discussion, resolution or decision concerning the second application for readmission:

   1. (1)

      on 7 February 2023 the Board resolved to note that a second application for readmission was received on 26 August 2022 and that “comment is awaited from the NSW Bar Association and the Law Society, noting that the application was not considered complete at the time the Board agenda was finalised, as the Office of the [Board] continued to receive additional material from the applicant”;

   2. (2)

      on 4 April 2023 the Board resolved to refuse to agree to Mr Montenegro indefinitely suspending his payment of the Board’s costs;

   3. (3)

      on 6 June 2023 the Board resolved to refuse to agree to Mr Montenegro suspending his payment of the Board's costs until 25 September 2023 as requested on 1 May 2023 and noted that Ms Ball abstained from voting on this item; and

   4. (4)

      Mr Montenegro’s matter was not on the Board’s agenda at meetings on 1 August 2023, 26 September 2023 and 1 November 2023;

5. [18]

   None of the resolutions set out above suggests any substantive consideration by the Board of the second application for readmission. The first such consideration is reflected in the February 2024 resolution, in which the Board deferred consideration of the application until the following Board meeting (on 23 April 2024), approved a draft letter inviting Mr Montenegro to provide further submissions, requested the Legal Officer to prepare draft recommended reasons in respect of the application and appointed a Sub Committee to review the draft reasons prepared by the Legal Officer. At that meeting it was recorded that Ms Ball declared an interest in this matter and abstained from discussing and voting on this matter. The February 2024 briefing was before the Board at its meeting on 6 February 2024.

6. [19]

   In the February 2024 letter, which was sent to Mr Montenegro following this meeting, he was informed that his second application for readmission had been deferred until the Board’s next meeting on 23 April 2024 and he was invited “to address a number of matters which are of concern to the Board”, should he wish to do so. He was asked to lodge any further written submission with the Board by 13 April 2024 and told that any further submissions would be considered by the Board, in addition to the material already provided, prior to making its final determination.

7. [20]

   The Board minutes for its meeting on 23 April 2024 disclose a number of procedural resolutions as regards Mr Montenegro’s second application for readmission but that no substantive decision on Mr Montenegro’s second application for readmission was made at that meeting.

8. [21]

   The Board minutes for its meeting on 18 June 2024 include the resolution making the June 2024 decision and adopting what was described as “the Reasons”. The Board also resolved to note that Ms Ball declared a conflict of interest in the matter. The June 2024 reasons (dated 18 June 2024) are lengthy and detailed.

9. [22]

   Sometime between 25 June and 8 July 2024 Mr Montenegro requested reconsideration of the Board’s June 2024 decision on the basis of what he contended were errors in reasoning, failures to consider matters and mistakes of fact. The minutes of the Board’s meeting on 13 August 2024 record that some procedural matters were dealt with and that Mr Montenegro’s request for reconsideration was deferred until the next meeting and he was requested to put further submissions to the Board to address certain matters.

10. [23]

    The minutes of the Board meeting on 8 October 2024 disclose that the Board substantively considered Mr Montenegro’s request for reconsideration at that meeting. Whilst the minutes do not state as much, it appears likely from the October 2024 reasons, which are dated 8 October 2024, that on that occasion the Board resolved to refuse Mr Montenegro’s request for reconsideration and to adopt the reasons. Ms Kneebone, counsel for the Board, submitted orally at the hearing that it was her understanding that the minutes failed to record this aspect of the Board’s decision-making, but there is no evidence before me as to this. It should also be observed that the minutes of the meeting on 8 October 2024 do not record Ms Ball making any declaration of conflict of interest or abstaining from decision-making. As Ms Kneebone submitted, that might give rise to a range of inferences, but that is not a matter for me on this application.

11. [24]

    In the Amended Summons Mr Montenegro seeks orders that both the June and October 2024 decisions are quashed and that the Board issue him with a compliance certificate or, in the alternative, declaratory relief or orders (with varying levels of detail) that the Board reconsider his second application for readmission according to law. The grounds advanced in the Amended Summons contend, in summary, that:

    1. (1)

       the Board committed jurisdictional error in fettering its discretion, failing to exercise jurisdiction, failing to consider relevant matters, and applying rigid evidentiary and unlawful policy (ground 1);

    2. (2)

       the Board failed to afford procedural fairness and natural justice in failing to disclose adverse information and failing to consider reasonable adjustment or accommodation (ground 2);

    3. (3)

       the Board abused its process by applying an unattainable evidentiary requirement excluding Mr Montenegro from meaningful access to the admissions process and inducing him to discontinue prior proceedings by misrepresentation and omission, resulting in constructive fraud (ground 3);

    4. (4)

       the Board misapplied the Uniform Law by failing to accept Mr Montenegro’s successful litigation between 2017 and 2023 as evidence of reformation and re-establishment of character and erred in failing to assess that material as relevant to character and experience and in failing to give proper weight to this (grounds 4 to 6);

    5. (5)

       the Board’s refusal amounted to unlawful discrimination (ground 7);

    6. (6)

       the Board failed to update or involve, or obtain or consider input from, the Law Society or the Bar Association (grounds 8 and 9);

    7. (7)

       the decision was manifestly unreasonable and erroneous (ground 10);

    8. (8)

       the February 2024 resolution and subsequent communications disclosed prejudgment, permeating all further decisions, and the preparation and settlement of draft refusal reasons during the reconsideration process rendered that process a mere formality (ground 11); and

    9. (9)

       the Board acted in bad faith by withholding material relevant to the decision-making criteria by which Mr Montenegro’s application was to be assessed, by abusing its processes through the predetermination of outcomes, by failing to fairly and properly consider applications for reimbursement and variation of costs, by making allegations without an evidentiary basis, by unreasonably frustrating settlement negotiations and by failing to provide full and frank disclosure under the Government Information (Public Access) Act 2009 (NSW) (GIPA) by concealing and redacting material (ground 12).

12. [25]

    As I have already indicated, Mr Montenegro has advanced somewhat different grounds in the Draft Further Amended Summons. Given his contention that I should have regard to this document on the Motion, I will set it out in full:

13. [26]

    In substance, both in these draft grounds, and in correspondence and submissions, Mr Montenegro raises three issues to which he contends the documents he seeks are relevant:

    1. (1)

       whether (as alleged in the Draft Further Amended Summons at [1], [2] and [3(c) and (d)]) there was a failure by the Board 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 (Conflicts Procedure Issue);

    2. (2)

       whether (as alleged in the Draft Further Amended Summons at [3(a) and (b)]) Ms Ball participated in Board meetings or was involved in consideration of Mr Montenegro’s application in circumstances where she had a conflict of interest by reason of her having held senior office within the Law Society, so as to give rise to actual or apprehended bias within the meaning prescribed by Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Conflict of Interest Issue); and

    3. (3)

       whether (as alleged in the Amended Summons at [11] and Draft Further Amended Summons at [3(e)]) the February 2024 resolution and the preparation of draft reasons at a time while Mr Montenegro was still providing submissions to the Board is indicative of the Board having had a closed mind since February 2024 (Prejudgment Issue).

14. [27]

    Both Mr Montenegro and Ms Kneebone agreed, at the hearing of the Motion, that having regard to the overriding objective in s 56 of the Civil Procedure Act 2005 (NSW), I could proceed on the assumption (made for the purpose of this Motion only) that the issues in the proceedings include these issues, irrespective of whether the first or second of these issues was raised in the Amended Summons. I am satisfied that this is appropriate here, given that these issues have been repeatedly agitated by Mr Montenegro in correspondence and in his evidence and submissions on the Motion.

15. [28]

    As to the Conflicts Procedure Issue, Mr Montenegro submits that the valid exercise of the Board’s powers requires that it comply with mandatory procedural and record-keeping requirements. In this regard he relies upon a document entitled “Managing Conflicts of Interest in the LPAB”, an extract from a document entitled “New South Wales Government Code of Ethics and Conduct policy”, and an extract from a document entitled “New South Wales Government Premier and Cabinet Boards and Committees Guidelines”. He also relies upon two further matters. First, in response to a notice to produce, the Board stated that no documents exist recording the nature or management of Ms Ball’s conflict of interest. Second, a solicitor at the Office of the NSW Crown Solicitor (CSO), who acts on behalf of the Board, confirmed that Ms Ball did not inform the other members of the Board of the reason for her abstention from voting on matters relating to Mr Montenegro.

16. [29]

    It should also be noted that on 6 December 2025, Mr Montenegro issued a notice to produce to the Board seeking:

17. [30]

    On 16 December 2025, the CSO responded, explaining that the documents sought were not relevant to Mr Montenegro’s pleaded grounds of review, that the notice lacked the requisite specificity and that:

18. [31]

    Consistent with this, Ms Plater confirms in her affidavit that she has conducted a search of the Board’s records and has not located any record or document (apart from the Board minutes summarised above) detailing the reason or nature of Ms Ball’s conflict of interest. She also says that that is consistent with the Board’s usual practice.

19. [32]

    As to the Conflict of Interest Issue, Mr Montenegro relies on the Board minutes as summarised above which record Ms Ball’s declaration that she had a conflict of interest in the matter.

20. [33]

    As to the Prejudgment Issue, Mr Montenegro relies on the February 2024 resolution and on the fact that he made submissions to the Board as to his second application for readmission and his request to the Board to reconsider the June 2024 decision over the period between 6 February and 8 October 2024.

Previous notices to produce and the Board’s responses

1. [34]

   Whilst it is unnecessary in this judgment to rehearse the details of these, I note that Mr Montenegro served a number of notices to produce and informal requests for information on the Board in the period from 8 September 2025 to 6 December 2025. Documents have also been produced to Mr Montenegro in response to an application he made under the GIPA with some redactions applied on the basis of legal professional privilege, although neither the application nor the documents produced in response are before me.

Legal professional privilege

1. [35]

   By correspondence from the CSO on 16 October 2025 responding to a notice to produce dated 2 October 2025, legal professional privilege was claimed by the Board over a number of documents including over all draft reasons and draft supplementary reasons. Ms Plater explains in her affidavit that she holds a practising certificate covering her employment with the Board and that:

2. [36]

   Ms Plater says that she prepared the draft reasons and draft supplementary reasons in Mr Montenegro’s matter. As to the process of preparation, Ms Plater prepared drafts and, after review by the Board or members of the Board, she responded to queries and provided her views on edits made by the Board or Board member. She explains that the “drafts contained an analysis and advice on the merits of Mr Montenegro’s various applications and requests within the applicable statutory and non-statutory framework”.

3. [37]

   Ms Plater identified four categories of documents falling within prayers 1 and 3 of the Motion: minutes; agenda indexes, being the cover page and index for Agenda Papers prepared for Board meetings; agenda items, being briefing items within the Agenda Papers prepared for the Board, containing a summary of relevant events, matters or considerations and recommendations that the Board will be asked to vote on or discuss; and internal communications.

4. [38]

   She says that a claim for legal professional privilege will be made over all agenda items for the period 25 February 2020 to 2 June 2020 and over all agenda items for the period 4 April 2023 to 8 October 2024, save for those prepared for Board meetings on 6 February, 23 April, 13 August and 8 October 2024 and disclosed to Mr Montenegro under GIPA on 20 August 2025. She explains that she authored the agenda items and that these contain a summary of relevant events and developments and references to specific matters that the Board may wish to consider and recommendations for the Board’s consideration. I also note that privilege claims may already have been made over some of these documents in a letter dated 16 October 2025 from the CSO to Mr Montenegro responding to a notice to produce dated 2 October 2025.

5. [39]

   Ms Plater also says that some other minutes and communications sought in the Motion will be subject to a claim of legal professional privilege, whether in whole or in part. These consist of summaries and legal advice in which she has made recommendations or noted matters for the Board’s consideration.

6. [40]

   Ms Plater also explains that she considers that the internal communications falling within the ambit of prayers 1 and 3 of the Motion that she has prepared are in the nature of legal advice to the Board.

7. [41]

   In her oral submissions, Ms Kneebone confirmed that her instructions were that, if production were ordered, privilege claims would be made over all of the agenda items, but only over some of the minutes and agenda indexes, falling within the categories of documents sought in prayers 1 and 3.

Prayers 1 to 4 of the Motion seeking production of documents or discovery

1. [42]

   Prayers 1 to 3 of the Motion seek production of documents to the Court. In his oral submissions, Mr Montenegro explained that the orders were framed in that way because he thought it was the more appropriate course given that privilege claims had been made by the Board. In these circumstances, it may be that prayers 1 to 3 are most aptly characterised as seeking orders that documents be produced to the Court under UCPR, r 34.1, and granting leave for that purpose under r 34.1(1)(b), rather than under r 21.10, which provides for notices to produce documents to a party for inspection. Ultimately, however, nothing turns on this and I have approached the application on the basis that, in prayers 1 to 3 of the Motion, Mr Montenegro is seeking orders that the documents be produced either to him or to the Court, under one of UCPR, rr 21.10 or 34.1.

2. [43]

   It is well known that both UCPR, rr 21.10 and 34.1 require that documents to be produced be identified with specificity: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [11]-[12] (Barrett J). His Honour there noted that it is permissible, for example, to call for documents by reference to a category, albeit that, having regard to Commissioner for Railways v Small (1938) 38 SR (NSW) 564, it would not be permissible for a person to be required to search for and produce all documents in his or her possession relating to a particular subject matter. Illustrating this, in Small, Jordan CJ held at 575 that a category described as “all documents, papers, reports and correspondence relating directly or indirectly to falls from electric trains” was “quite improper”, falling foul of the requirement that documents sought (there by subpoena) must be identified with reasonable particularity.

3. [44]

   A notice to produce may be set aside if it calls for documents that have no apparent relevance to proceedings: see eg Azzi v Volvo [2006] NSWSC 283 at [4]. This is sometimes described as requiring that there be a legitimate forensic purpose for seeking production: Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98 at 100; Small at 573-575. As Bell P observed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], a legitimate forensic purpose will exist if:

4. [45]

   The question of apparent relevance is approached by reference to the issues in dispute in the proceedings.

5. [46]

   In Blacktown City Council, Bell P observed at [68] that:

6. [47]

   Reflecting the need for circumspection when it is contended that issues beyond the pleadings should be taken into account when considering apparent relevance, in Kazal v Independent Commission Against Corruption [2018] NSWSC 1370 at [26], Davies J observed that:

7. [48]

   Consistent with what is set out above, it is not appropriate to use a notice to produce to seek documents that are necessary to plead or particularise a claim that cannot currently be pleaded or particularised. As Black J said in In the matter of Stone Cliff Pty Ltd (deregistered) and others [2017] NSWSC 918 at [16]:

8. [49]

   Similarly, in ACN 008 664 257 Pty Ltd v HIH Casualty & General Insurance Ltd (in liq) [2005] NSWSC 881 at [32], Einstein J held that:

9. [50]

   Consistent with this, it is well established that a mere fishing expedition will not be allowed: Alister v The Queen (1984) 154 CLR 404 at 414-415; [1984] HCA 85. That term was explained in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 (cited with approval by Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102 at [48]):

10. [51]

    A party seeking discovery in an application for judicial review may not do so without leave of the court: UCPR, r 59.7(4). Discovery must be relevant to facts in issue: UCPR, r 21.2(4); Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 (Brereton J) at [21]-[22]. A document is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence: UCPR, r 21.1(2).

11. [52]

    Discovery must also be reasonably necessary for disposing fairly of the cause or matter or in the interests of a fair trial: Graphite Energy at [19]. Discovery will not be ordered for the purpose of carrying out a fishing expedition, that is, to ascertain whether a case exists rather than to compel production of documents where there is already some evidence that a case exists: Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426 at 438 (Lindgren J).

12. [53]

    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. Legal advice provided by in-house or employed legal advisers may properly be subject to a claim of privilege: Evidence Act, s 119; Waterford v Commonwealth (1987) 163 CLR 55 at 74-75 (Brennan J); [1987] HCA 25; Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 510 at 530-531 (Dawson J); [1985] HCA 60; Sydney Airports Corporation Ltd v Singapore Airlines & Qantas Airways Ltd [2005] NSWCA 47 at [18] (Spigelman CJ). Legal advice provided to a statutory board or tribunal may be privileged if it was given to advise the board or tribunal in the exercise of its statutory function: Keung v Abbott [2017] SASCFC 58 at [101]-[105] (Kelly J).

13. [54]

    Communications from a legal advisor providing draft documents, such as draft statements of reasons for decisions of a statutory board may in effect set out legal advice that the reasoning proposed reflects a proper legal analysis of the relevant material before the board, complies with the board’s statutory obligations and public law duties (to the extent not implied by statute) and accords with the client board’s instructions: see, by analogy, the analysis in 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] as to communications of draft legislation qualifying for legal advice privilege. Communications between a legal advisor and members of a board, or a board itself, which amount to consultation as to the content and form of draft reasons may attract legal professional privilege if they involve in effect the seeking and giving of legal advice as to the matters set out above: Betfair at [36]-[38]. Both may involve the seeking or application of legal skill and knowledge to the question of what the board may or may not validly do, seeking to obtain effective and valid draft reasons that accord with the board’s instructions: see by analogy Betfair at [24].

14. [55]

    Further, as Allsop J explained in DSE (Holdings) Pty Ltd v Inter TAN Inc (2003) 135 FCR 151; [2003] FCA 1191 at [45] (cited with approval in WorkCover Authority of NSW at [83]), quoting Taylor LJ in Balabel v Air India [1988] Ch 317 at 330:

15. [56]

    It is of the essence of legal professional privilege that, if maintainable, it 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] (Macfarlan JA, McCallum JA and Simpson AJA agreeing). Moreover, a party is not entitled under UCPR, r 21.10 to the production of documents that are privileged under ss 117-126 of the Evidence Act: UCPR, r 21.11(1)(a), Dictionary. Nor are privileged documents required to be produced for inspection in response to a discovery application: UCPR, r 21.5(2)(a). Under UCPR, rr 1.9(3) and (4), a person may object to producing a document to the court on the basis of privilege and may not be compelled to produce the document unless the privilege is overruled.

16. [57]

    Where the court is satisfied on the evidence that a document is likely to attract legal professional privilege, consistent with s 56 of the Civil Procedure Act, it may be appropriate not to order production: KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (No 2) [2020] NSWCA 131 at [25] (Payne JA). Similarly, the court may properly decide not to require a party to undertake the pointless task of preparing a verified list of documents where the documents sought appear clearly to be privileged: see eg Jaeger v Bowden [2015] NSWSC 1479 at [208]-[209] (Robb J).

17. [58]

    In summary, and without seeking to be comprehensive, Mr Montenegro contends that the documents he seeks in prayers 1 to 4 of the Motion should be produced or discovered because they constitute the primary contemporaneous record by which the Board’s compliance with its statutory and other obligations may be assessed. He contends that the materials are capable of illuminating whether the Board’s process of decision-making remained “genuinely open or operated as confirmation of a position already formed” and that the issues upon which he relies arise from the Board’s minutes already produced. He submits that production of the underlying materials before the Board is necessary to permit the Court to determine whether the impugned decisions were validly made. He contends that the documents he seeks are part of the administrative record of the Board’s decisions and either do not attract privilege because the dominant purpose test in Esso is not satisfied or, alternatively, privilege has been waived.

18. [59]

    In his affidavit Mr Montenegro explains that the documents are required to enable him to “responsibly re-plead and properly particularise the full grounds that arise from the altered factual and legal landscape” following production of the Board minutes summarised above.

19. [60]

    As to the Prejudgment Issue, he explains, further, that he seeks production of the draft reasons and supplementary reasons:

20. [61]

    As to the Conflict of Interest Issue, he says in his affidavit that:

21. [62]

    As to the Conflicts Procedure Issue, he says in his affidavit that the apparent systemic failure and legality of the Board’s decisions cannot be “properly assessed” without reviewing Board records for the period prior to 2020.

22. [63]

    Mr Montenegro did not articulate any reasoned basis upon which the documents could go to any other issue raised in the Amended Summons (although he made assertions that they did).

23. [64]

    Having regard to the principles set out above, whether this is characterised as an application under UCPR rr 21.10, 34.1 or as an application for leave to seek discovery under UCPR, r 59.7, prayers 1 to 4 of the Motion should be dismissed.

24. [65]

    As to prayer 1, the test of apparent relevance is not satisfied in circumstances where the documents sought relate to a period over three years prior to the earlier of the two decisions challenged in the underlying proceedings. The application also lacks the necessary specificity for production to be ordered under UCPR, rr 21.10 or 34.1, being, in substance, an application for discovery. Nor should leave to granted under UCPR, r 59.7 for Mr Montenegro to seek discovery of this category of documents, under prayer 4. I reject Mr Montenegro’s contention that documents prior to 2020 would shed light on the lawfulness of the Board’s decisions in 2024. There is no proper basis for that contention. Mr Montenegro submitted orally that the documents sought would disclose whether Ms Ball had a conflict of interest affecting the 2020 decision, which “carried over to this one”. Again, there is no proper basis for that contention. The June and October 2024 decisions were fresh decisions, considering Mr Montenegro’s second application for readmission. For the purpose of those decisions, the Board was entitled to treat the 2020 decision as valid and effective. Any challenge to the June and October 2024 decisions will depend upon whether there was a conflict of interest vitiating those decisions.

25. [66]

    In these circumstances, it is unnecessary to consider the ambit of any future claims of legal professional privilege as regards the documents sought in prayer 1.

26. [67]

    As to prayer 2, I am satisfied on the basis of Ms Plater’s evidence, and having regard to the legal principles set out above, that the draft reasons and draft supplementary reasons are properly subject to a claim of legal professional privilege. They were prepared for the purpose of Ms Plater giving legal advice as to the proper and lawful discharge of the Board’s statutory and public law obligations (to the extent these may be non-statutory). Mr Montenegro contends that there is some inconsistency in the Board claiming legal professional privilege over documents that it relies upon as explaining how statutory power was exercised. That contention does not avail Mr Montenegro, as the Board does not seek to rely upon draft reasons in these proceedings. There is, moreover, no inconsistency, falling within the principle of waiver of privilege as explained in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, in the Board relying, in the substantive proceedings, upon its reasons for decision whilst at the same time claiming privilege over draft reasons. The purpose of the privilege is to protect the Board from subsequent disclosure of legal advice communicated in the provision of draft reasons. Reliance upon the June or October 2024 reasons is not in any way inconsistent with that purpose.

27. [68]

    It follows that it would not be consistent with s 56 of the Civil Procedure Act to order either production to the Court or that the Board prepare a list of documents under UCPR, r 21.3.

28. [69]

    Had it been necessary to decide this, I would have also rejected Mr Montenegro’s contention that these documents would shed light on the Conflict of Interest, Conflicts Procedure and Prejudgment Issues.

29. [70]

    The Conflict of Interest Issue goes to the extent to which Ms Ball was herself involved in decision-making noting her declared conflict of interest. The Conflicts Procedure Issue turns on whether or not the procedures adopted by the Board as regards that declared conflict of interest undermine the validity of the decisions. Mr Montenegro did not in his submissions identify any sound basis for his contention that draft reasons would shed light on these issues.

30. [71]

    The Prejudgment Issue turns on whether the February 2024 resolution is indicative of the Board having been so committed to a conclusion already formed so as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69], [71]-[72] (Gleeson CJ and Gummow J) and [185] (Hayne J), noting that, consistent with Ebner at [7], in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218; [2022] FCAFC 41 at [40] (Bromberg, Murphy and Markovic JJ) it was held that the question as to reasonable apprehension of bias is one of “possibility (real and not remote), not probability”. The draft reasons or supplementary reasons, all of which were prepared after February 2024, are unlikely to shed any light on this issue.

31. [72]

    I would also characterise Mr Montenegro’s application for production or discovery of these documents as a fishing expedition. That is to some extent consistent with Mr Montenegro’s explanation, set out above, as to why he is seeking these documents, although such statements are, of course, in no way determinative.

32. [73]

    As to prayer 3, the documents sought do not satisfy the test of apparent relevance (or for that matter, of specificity). The Board has already confirmed that it has no further documents recording Ms Ball’s conflict of interest and the procedures it adopted in managing that conflict. Nor is it apparent how the documents sought could inform the Prejudgment Issue. Whilst Mr Montenegro submitted orally that the Board minutes would “provide further light” and would enable the Court to “see a much better picture of the false scenario”, he did not explain why this was so. His contention that documents prior to February 2024 may have “hints of” prejudgment provides no sound basis for ordering production or discovery given that the minutes (summarised above) disclose that the first substantive consideration of Mr Montenegro’s second application for readmission was at the meeting on 6 February 2024.

33. [74]

    Nor has Mr Montenegro articulated any sound basis (going beyond speculation) upon which agenda indexes or agenda items before the Board on February 2024, or thereafter, or internal communications, would illuminate these issues.

34. [75]

    Finally, I would reject Mr Montenegro’s contention that all of the documents sought in prayers 1 to 3 of the Motion should be ordered because they are part of the Board’s decision-making record. The June and October 2024 decisions are reflected in the Board minutes of those dates and explained in the June and October 2024 reasons. What is relevant to any challenge to those decisions turns on the nature of the grounds relied upon in any proceedings for judicial review. There is no principle whereby a plaintiff is automatically entitled, in judicial review proceedings, to the production and inspection of all material, including legal advice, that came to the Board’s attention in the course of the Board exercising its statutory decision-making role. The test for production of documents remains one of relevance (as set out above) informed by the dictates of s 56 of the Civil Procedure Act.

35. [76]

    To the extent that Mr Montenegro submitted orally that it was the Court’s duty to check the record to see “how many people had conflicts” or “how many other violations are in there”, that submission is rejected, as is his submission that there is a “strong inference that there’s more violations in there”. The Court will not order production of documents on the speculative possibility that those documents may disclose an as yet undiscovered basis for seeking judicial review.

36. [77]

    In these circumstances, it is unnecessary to consider the ambit of any future claims of legal professional privilege as regards the documents sought in prayer 3.

37. [78]

    It follows that prayers 1 to 4 of the Motion are dismissed.

Prayer 5: request for particulars or interrogatories

1. [79]

   In prayer 5 of the Motion Mr Montenegro seeks an order that the Board identify with precision matters going to the conflict of interest declared by Ms Ball and whether that conflict of interest was identified prior to its first declaration in the Board minutes (which was in June 2023). This cannot be characterised as a request for particulars in circumstances where Mr Montenegro has not identified this as arising from a claim, defence or other matter stated in a pleading or affidavit or statement of the nature of the case on which the Board relies, so as to fall within UCPR, r 15.10.

2. [80]

   To the extent that the prayer seeks an order for interrogatories, no such order should be made, noting that leave is in any event required under UCPR, r 59.7(4). Under UCPR, r 22.1(4), 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. The concept of necessity has been considered in many cases, and variously characterised as necessary in the interests of a fair trial, or for disposing fairly of the case: Boyle v Downs [1979] 1 NSWLR 192 at 204-5 (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). The test is not one of absolute necessity, but of reasonable necessity in the interests of a fair trial. Here, the Board has already confirmed in correspondence that it is not aware of the factual matters giving rise to the conflict of interest. It is, moreover, apparent that Ms Ball declared her conflict of interest in February 2024, and before then, in June 2023, which was before any substantive consideration by the Board of Mr Montenegro’s second application for readmission.

3. [81]

   In these circumstances, I am not satisfied that it is necessary to order that the questions posed in prayer 5 of the Motion be answered. As formulated in the Draft Further Amended Summons at [2], Mr Montenegro’s contention as to the Conflict of Interest Issue is that the Board failed to consider the nature and effect of Ms Ball’s conflict of interest which at [3] he contends arises from her position within the Law Society. That contention turns on whether the Board properly turned its mind to such matters. In the Draft Further Amended Summons at [3], Mr Montenegro’s contentions on the Conflict of Interest Issue are that there is no record of Ms Ball withdrawing from Board meetings or being excluded from consideration of his second application for readmission and that Ms Ball participated in the meeting of 23 April 2024. Neither of these articulations of the Conflict of Interest Issue turns on the matters upon which Mr Montenegro seeks to interrogate the Board as set out in prayer 5 of the Motion.

4. [82]

   It follows that prayer 5 is dismissed.

Prayers 7 and 8: leave to amend and to rely upon further affidavit evidence

1. [83]

   Mr Montenegro seeks leave to file and rely upon a further amended summons irrespective of whether he succeeds upon prayers 1 to 5 in the Motion. As identified above, he has not formulated the terms of a proposed further amended summons, although he indicated during his oral submissions that the Draft Further Amended Summons was a rough draft of what might be included were leave to amend the Amended Summons granted.

2. [84]

   In circumstances where the form of any proposed further amended summons, or further affidavit, is not before the Court, prayer 7 should be refused. That is not to say that leave might not, in the future, be granted to Mr Montenegro to amend the Amended Summons should he provide the Court with the proposed form of such amendments. Whether such leave would be granted would, of course, be a matter for the court considering any such application, including having regard to the impact which amendment might have on the orderly progression of this matter to a final hearing. The same is true for any future application for leave to rely upon further evidence.

3. [85]

   Prayer 8 is contingent upon orders being made for the production of documents. It thus does not arise.

Conclusion

1. [86]

   In the light of my reasoning set out above, the Motion is dismissed.

2. [87]

   The respondent seeks an order that costs be reserved. I will make that order.

3. [88]

   My orders are:

   1. (1)

      Notice of Motion filed by the applicant on 15 January 2026 is dismissed.

   2. (2)

      Costs reserved.