Background
Cesar Montenegro lost his practising certificate in 2015 following disciplinary proceedings: Prothonotary of Supreme Court of New South Wales v Montenegro [2015] NSWCA 409. He commenced these proceedings in 2020, appealing the Legal Profession Admission Board’s (LPAB) refusal of his first application for readmission to legal practice. Those proceedings were resolved by consent orders made in August 2022 and April 2025. Montenegro subsequently made a second readmission application, which the LPAB also refused; he is pursuing judicial review of that refusal in the Court of Appeal, with a hearing listed for 11 August 2026.
Montenegro then sought to reopen the earlier proceedings, filing multiple motions to set aside the consent orders and to compel production and discovery of documents from the LPAB. A Registrar declined to order production on 1 April 2026. Montenegro sought review of that decision. In May 2026, Schmidt AJ upheld the Court’s power to order production but declined to exercise it before the Court of Appeal resolved the related proceedings: Montenegro v Legal Profession Admission Board [2026] NSWSC 625. The parties were directed to confer on appropriate orders, including whether these proceedings should be referred to the Court of Appeal. They could not agree.
Montenegro argued that his reopening application — challenging the refusal of his first application and seeking to set aside associated costs orders — should proceed independently of the Court of Appeal proceedings, which concern his second application. The LPAB submitted that the matter should be adjourned pending the Court of Appeal’s decision but that no referral to that court was necessary.
The Court’s Holding
Schmidt AJ set aside the Registrar’s 1 April 2026 orders and adjourned the hearing of all document-production motions until after the Court of Appeal delivers its judgment on Montenegro’s challenge to the LPAB’s second readmission refusal. The Court held that the Court of Appeal’s conclusions on the LPAB’s approach to readmission applications — including Montenegro’s complaint grounded in Re Lenehan (1948) 77 CLR 403 — will be directly relevant to his application to set aside the consent orders and to the production disputes, even if not determinative of them. Proceeding ahead of that judgment would be inconsistent with the overriding purpose and case-management objectives in ss 56–60 of the Civil Procedure Act 2005 (NSW).
The Court declined to refer the proceedings to the Court of Appeal. Because Montenegro commenced in the Common Law Division and neither party sought removal, s 51(d) of the Supreme Court Act 1970 (NSW) permits the Division to continue and dispose of the matter, including an application to set aside consent orders that brought the proceedings to an end. A referral would impose unnecessary cost and procedural burden on both parties and the administration of justice without commensurate benefit, particularly given the imminent Court of Appeal hearing.
Costs of the disputed production motions were reserved, to be determined when those motions are finally resolved if pressed further; if they are not pressed, costs are to be costs in the cause. The matter was listed for directions before Schmidt AJ on 28 August 2026, with the expectation that the date will be vacated if the Court of Appeal has not yet delivered judgment.
Key Takeaways
- A trial-division court may adjourn related interlocutory motions where a superior appellate court is about to determine issues that will bear materially on those motions, consistent with the Civil Procedure Act’s overriding purpose of just, quick, and cheap resolution.
- Under s 51(d) of the Supreme Court Act 1970 (NSW), proceedings commenced in a Division of the Supreme Court that are assigned to the Court of Appeal need not be referred there; the Division may continue and dispose of them, including applications to set aside consent orders that concluded those proceedings.
- The LPAB, as a body constituted by Supreme Court judges, is a “specified tribunal” under s 48(1)(vii) of the Supreme Court Act, making judicial review of its decisions ordinarily the province of the Court of Appeal — a distinction that informed, but did not compel, referral here.
- Where a self-represented litigant pursues overlapping challenges in different courts, case-management principles favour sequencing rather than parallel determination to avoid duplicated costs and potentially inconsistent findings.
Why It Matters
This decision illustrates the practical operation of New South Wales case-management legislation when related matters are simultaneously before different levels of the same court. It confirms that trial-division judges retain jurisdiction over applications to reopen concluded proceedings even where the subject matter would ordinarily attract Court of Appeal jurisdiction, and that a referral upward is a discretionary step — not an automatic consequence — when no party seeks it and efficiency favours keeping the matter in the Division.
For practitioners advising clients with ongoing readmission or professional-discipline disputes, the case is a reminder that interlocutory document-production battles may be stayed where appellate proceedings will resolve foundational questions about the decision-maker’s approach, and that courts will sequence litigation to avoid the costs of running parallel proceedings to inconsistent conclusions.