Montenegro v Legal Profession Admission Board

HARRISON JA: On 28 October 2024, Mr Montenegro appealed to this Court from a decision of the Legal Profession Admission Board refusing his application for a compliance certificate enabling his readmission to the legal profession under s 19 of the Legal Profession Uniform Law. When the proceedings were originally commenced, the LPAB was the only respondent. It filed a notice of appearance on 25 November 2024. Then, on 31 January 2025, the Council of the Law Society of New South Wales filed a notice of motion seeking orders allowing it to intervene in the proceedings and be joined as a respondent.

By reason of the fact that the LPAB was the body whose decision was under appeal, it sought and obtained leave to withdraw its notice of appearance and to file a submitting appearance upon the Law Society being joined to the proceedings. The rationale for that approach was that a submitting appearance was consistent with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 and that the Court would no longer be left without the benefit of an active contradictor since the Law Society had been joined.

Mr Montenegro has now foreshadowed an intention to seek judicial review, rather than pursue an appeal from the LPAB’s decision.

The Law Society now seeks an order that the order made by the Court on 4 March 2025, granting it leave to intervene and be represented and heard in the proceedings pursuant to s 21 and s 35 of the Legal Profession Uniform Law Application Act 2014, be vacated or set aside, as well as an order that it be removed as a party to the proceedings. In those circumstances, the LPAB has filed a notice of motion seeking leave under UCPR 12.5 to withdraw its submitting appearance filed on 6 March 2025 and an extension of time under UCPR 1.12 to 10 September 2025, or such other time as the Court considers appropriate, to file instead an appearance under UCPR 6.10. In the alternative, the LPAB seeks leave under UCPR 6.11(2) to rely on evidence and submissions in the proceedings.

The proceedings to date have had an unnecessarily protracted procedural history. That history is uncontroversially recorded in the affidavits of Valerie Griswold affirmed on 2 September 2025 read on behalf of the Law Society and Sean Munnoch affirmed on 4 September 2025 read on behalf of the LPAB. Having regard to that history, and to the fact that Mr Montenegro now intends to proceed with his application by way of judicial review, it seems to me to be appropriate that the LPAB should be the proper party to respond to the application and to assist the Court and that the Law Society ought in these circumstances be given leave to withdraw.

Mr Montenegro did not appear before me when these motions were heard. That was because he was medically indisposed. However, orders for the filing of written submissions were made, and complied with, including by Mr Montenegro. His submissions made it clear that he opposed the orders sought, presumably by both the LPAB and the Law Society, “insofar as they permit the [LPAB] to be heard substantively” but also indicate that he “did not oppose [the LPAB’s] participation where submissions are strictly confined to issues concerning powers and processes”.

Mr Montenegro relies in this respect upon the decision of the High Court in Hardiman and upon the well-recognised principle explained in that case at 35-36 as follows:

I do not understand the LPAB to dispute the authority or applicability of this principle or to contend that its role as what will now become the single contradictor to Mr Montenegro’s proceedings should not be informed by it. However, the LPAB offered a significantly wider interpretation than Mr Montenegro with respect to how it should apply in this case, as appears from the following submissions.

The LPAB submitted that unless it participates more actively in the proceedings, this Court, upon the anticipated removal of the Law Society as a respondent, would be without a contradictor and the assistance which active contradiction provides. That is the context in which the LPAB seeks orders that, in substance, permit it to participate actively in the proceedings, but nevertheless consistently with Hardiman and the authorities in this Court that have dealt with it.

For example, the LPAB has previously defended judicial review proceedings: Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443. This Court rejected submissions made about the first respondent exceeding its role in doing so: Makowski v Legal Profession Admission Board (No 3) [2020] NSWSC 506.

Further, the LPAB is not in the position of an adjudicative tribunal, so Hardiman applies with less force: see Hastwell v Legal Services Commissioner [2020] NSWSC 1008 at [5]. Judicial review typically goes to questions of power and procedure, which a body to which Hardiman applies is permitted to address: Hastwell v Legal Services Commissioner [2021] NSWCA 20 at [8]. Most significantly, there will be no active contradictor unless the LPAB actively participates: see Mendonca v Legal Services Commissioner [2019] NSWSC 409; Hastwell v Legal Services Commissioner [2020] NSWSC 1008.

In any event, the LPAB submitted that Hardiman does not disentitle it from being heard: Hastwell v Legal Services Commissioner [2021] NSWCA 20 at [8]; Wang v Council of the Law Society of New South Wales (2009) 73 NSWLR 226; [2009] NSWSC 67 at [13].

In summary, the LPAB submitted that this Court should exercise its discretion to grant orders that permit it actively to participate for the following reasons. First, its change of position has been sufficiently explained by the proposed removal of the Law Society as a party. Secondly, it is in the interests of the administration of justice that the Court have the assistance of a contradictor. Thirdly, the move from an appeal to a judicial review proceeding is tantamount to a fresh proceeding so that the LPAB should not be held to its previous notice of appearance filed in respect of the original appeal. Fourthly, there is no material prejudice to Mr Montenegro.

In my opinion, in light of these authorities, it is appropriate to make the order sought by the LPAB in its notice of motion filed on 3 September 2025, granting leave to file a notice of appearance pursuant to UCPR 6.10. It is neither appropriate nor necessary to make the order sought in the alternative under UCPR 6.11(2). First, that sub-rule only applies to a notice of appearance filed under UCPR 6.11(1). Secondly, an appearance filed pursuant to UCPR 6.10 permits the LPAB to respond to Mr Montenegro’s claim as an active contradictor, subject only to the relevant application of the Hardiman principle. Any filing and exchange of evidence and submissions by the LPAB as an active party in advance of the final hearing of the proceedings will not foreclose Mr Montengro’s right to raise his concerns about the reception of that evidence and/or his objections to the LPAB’s reliance on its submissions at that hearing.

In such circumstances, it is my opinion that the following orders should be made: