Monteiro v State of New South Wales

HIS HONOUR: By his notice of motion filed on 11 June 2024, Simon Monteiro applies pursuant to UCPR 49.19 for a review of a decision by the Registrar refusing to grant him leave to issue a series of subpoenas. The question of whether or not these subpoenas manifest a legitimate forensic purpose must be assessed by reference to the principal proceedings and the issues calling for determination.

Mr Monteiro is currently the subject of an extended supervision order imposed on 6 July 2020 by Fagan J: see State of New South Wales v Monteiro (Final) [2020] NSWSC 881. Although it is by no means clear from the state of the current pleadings, as to which see below, I am at least generally satisfied from the way in which the present application has been conducted by Mr Monteiro that he ultimately seeks a revocation of the extended supervision order in accordance with s 13 of the Crimes (High Risk Offenders) Act 2006. That section is in these terms:

Although it will be necessary in due course to return to the grounds upon which Mr Monteiro seeks to revoke his extended supervision order, I anticipate from his submissions that he proposes at the final hearing to contend that he is not limited or constrained in his revocation application by the need to establish “that circumstances have changed”. I apprehend that Mr Monteiro wishes to contend, among several other things, that what he maintains has been the unfair, oppressive and overly pedantic administration of the conditions attaching to the order, mean that it should now be revoked. Unfortunately, in my opinion, a case articulating a claim for relief on such a basis has so far not been adequately exposed.

In that context it is timely to recall the terms of the relief originally sought by Mr Monteiro in his summons filed on 7 December 2023:

Three things about these claims need to be said. First, Mr Monteiro is not legally represented. He is not to be criticised for that and the Crown has, in terms, repeatedly conceded that, in such circumstances, an appropriate allowance needs to be made for him. Secondly, the summons would appear to have been filed by Mr Monteiro in the shadow of a particular decision concerning a refusal to permit him to travel to Queensland and in that respect is more narrowly focussed than the type and scope of relief that his extensive oral presentations have made abundantly clear he wishes to pursue. Thirdly, Mr Monteiro has filed an “amended summons” since the original summons was filed.

In order that my present understanding of Mr Monteiro’s concerns should not be misrepresented or misunderstood, I shall summarise what I confidently perceive to be the raft of matters that he wishes to agitate.

Mr Monteiro’s extended supervision order was first imposed for a period of 5 years, expiring on 5 July 2025. However, Mr Monteiro has spent an additional period in custody between 19 August 2020 and 17 February 2022 following his conviction for breaching conditions imposed as part of the extended supervision order as well as the terms of the interim supervision order that preceded it. As a result, Mr Monteiro’s extended supervision order is now due to expire on 5 January 2027, or exactly 18 months later than provided for in the original order.

As the Crown’s submissions note, and as I have earlier mentioned, Mr Monteiro’s revocation application appears to be a response to a decision by the Commissioner for Corrective Services refusing to approve a request to travel to Queensland over the Christmas period. It was at that time that it became apparent that Mr Monteiro wished to make an application to revoke his extended supervision order, a matter that could obviously not have been accommodated by the duty judge at the time it came to be considered.

Since then, Mr Monteiro has served the defendant with what has been described as an amended summons, containing more extensive claims for relief than its predecessor. On 1 July 2024, I granted Mr Monteiro leave to file that document in Court and the defendant quite properly accepted that it should be taken to be Mr Monteiro’s current “pleading”. It is in the following terms:

It will be immediately apparent that there are a number of different claims in this document that do not fall easily or, in some cases, at all within the rubric of an application to revoke an extended supervision order. That does not, of itself, mean that such claims, subject to being properly and clearly pleaded, could not all be maintained in the one proceeding. For presently relevant purposes, however, it tends to complicate the assessment of which of the subpoenas that Mr Monteiro wishes to issue have an obvious forensic purpose. Specifically, and inadvertently in a way that is potentially inimical to Mr Monteiro, the assessment of the forensic legitimacy of the subpoenas could become more restricted than necessary if the revocation of the extended supervision order were treated as the only relevant touchstone: the wider the ambit of Mr Monteiro’s claims, the wider the potential matters calling for consideration.

Having said as much, the particular difficulty that confronts the present application, at least from my position, is not merely that Mr Monteiro’s claims are not properly pleaded but that they are not pleaded at all. Although the defendant has not so far taken the point, there remains a considerable risk that any final hearing of these proceedings will be difficult, if not impossible, to manage unless the precise claims are properly articulated, and the defendant has been required to formulate a defence to them, in accordance with the rules.

I appreciate that Mr Monteiro wishes to prosecute at least the following claims:

It is not for me to comment upon the viability of any such claims as Mr Monteiro may wish to pursue, including the extent to which any claim may be barred by operation of the Limitation Act 1969. Nor is my reference to the claims that I perceive Mr Monteiro wishes to maintain intended to exclude any claims that I have not generally identified. Moreover, it is no part of my role to offer legal advice to Mr Monteiro about what causes of action he might have that are viable or what causes of action are probably or possibly without merit.

My principal concern, bearing in mind the admirable restraint exhibited by the defendant thus far, is to ensure from the Court’s standpoint that whatever case Mr Monteiro wishes to pursue is framed or formulated in a way that eliminates or at least minimises the prospect of wasted court time that might potentially result from any confusion or misunderstanding about what is alleged or the legal and factual basis upon which it rests.

Limiting for present purposes my attention to Mr Monteiro’s claim for relief pursuant to s 13 of the Act, the following matters should be noted.

In State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52, Walton J analysed the construction of s 13 at [14]-[31]. At [21], he specifically said of s 13(1B):

The “broad discretion” in Kay, identified by Walton J, referred to remarks by Wilson J as to the operation of s 13(1). In Kay at [66], Wilson J said:

The objects and the provisions of the Act are as follows:

I have also been referred to the particularly helpful analysis of s 13 conducted by Campbell J in State of New South Wales v Mills [2019] NSWSC 298, especially at [21] ff.

Although I have so far only been concerned with these proceedings for the purposes of adjudicating upon the subpoenas Mr Monteiro wishes to issue, it is clear that his claim for revocation of the extended supervision order has proceeded upon the express or implied assumption that he must demonstrate a change in circumstances before he can succeed with such a claim. As I have attempted to make plain, whether with or without statutory support for his contentions, Mr Monteiro clearly wishes to argue that he is not so limited, as the opening words of s 13(1B) would suggest, and in particular that the discretion to revoke such an order is not only unfettered but includes the manifold circumstances under which, and the ways in which, the conditions attaching to such an order have, or may have been, enforced or administered. I take Mr Monteiro to contend that the circumstances supporting the breaches for which he was convicted, and which were the subject of the sentence imposed by his Honour Bright DCJ in R v Monteiro [2021] NSWDC 340, are matters of this type.

In summary, I am not satisfied that the present proceedings are yet in a state of sufficient readiness for any principled decision to be made concerning Mr Monteiro’s subpoenas. Additionally, there are logistical difficulties issuing subpoenas to attend and give evidence when no hearing date has been set. Furthermore, there is at least some prospect that Mr Monteiro has not yet come to terms with the limited ability of a party calling a subpoenaed witness to cross-examine such a person, a proposal to which Mr Monteiro has regularly adverted.

Mindful of the fact that Mr Monteiro is neither legally represented nor legally trained himself, the matter is not in my estimation capable of progressing until Mr Monteiro’s claims are properly pleaded and particularised in a statement of claim. For all I know, Mr Monteiro may wish to limit his concerns to the revocation of the extended supervision order and postpone the balance of his claims for damages and the like. Those matters will need to be clarified before any proper assessment of his subpoenas can be provided.

To that end, and subject if necessary to hearing the parties further, I would propose the following orders and directions: