Monteiro v Commissioner of Corrective Services and Justice Health and Forensic Mental Health Network; Monteiro v State of NSW

[2022] NSWSC 1489

Supreme Court

New South Wales

Medium Neutral Citation:

Monteiro v Commissioner of Corrective Services and Justice Health and Forensic Mental Health Network; Monteiro v State of NSW [2022] NSWSC 1489

Hearing dates:

24 August 2022; 31 October 2022

Date of orders:

4 November 2022

Decision date:

04 November 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

In matter 2021/297999 (referred to in this judgment as the Judicial Review proceedings):

(1)   The proceedings are dismissed.

(2)   The respondent, Simon Monteiro, is to pay the costs of the Commissioner of Corrective Services of the proceedings as agreed or assessed.
(3) I direct the Registrar to forward a copy of this judgment to the respondent by pre-paid post to the Somersby address which will be provided by my Associate.

In matter 2020/70194 (referred to in this judgment as the Revocation proceedings):

(1)   The proceedings brought by the respondent, Simon Monteiro, by notice of motion on 20 October 2021 seeking the revocation of the Extended Supervision Order made by Fagan J on 6 July 2020 are dismissed.
(2) The notice of motion filed by the respondent, Simon Monteiro, on 20 October 2021 seeking a revocation of the Extended Supervision Order made by Fagan J on 6 July 2020 is dismissed.

(3)   I make no order as to costs.
(4) I direct the Registrar to forward a copy of this judgment to the respondent by pre-paid post to the Somersby address which will be provided by my Associate.

Catchwords:

PRACTICE AND PROCEDURE – Application for summary dismissal of proceedings on the basis that such proceedings are an abuse of process or alternatively are frivolous or vexatious – Where the respondent brought judicial review proceedings against the Commissioner of Corrective Services in respect of decisions made by the Commissioner when the respondent was in custody – Where those decisions impacted upon the respondent’s conditions of custody – Where respondent had since been released – Where the Commissioner sought that the proceedings be dismissed – Where the grant of the relief sought would be futile in the circumstances – Proceedings an abuse of process – Proceedings dismissed – Order for costs made against the respondent

PRACTICE AND PROCEDURE – Application for dismissal of proceedings for want of prosecution – Where the respondent is the subject of an extended supervision order – Where respondent filed a Notice of Motion seeking that the order be revoked – Where respondent was ordered on two occasions to regularise the proceedings by filing a Summons – Where respondent failed to comply with either order – Where the respondent had remained inert for more than 12 months and had taken no substantive step to prosecute the proceedings – Where the respondent had failed to comply with other orders of the Court – Where the respondent had been given the opportunity to explain those failures and had not done so – Proceedings dismissed – No order made as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Court Suppression and Non-publication Orders Act 2010

Crimes (High Risk Offenders Act) 2006 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27

Cox v Journeaux (No. 2) (1935); 52 CLR 713; [1935] HCA 48

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Gill v Eatts; Gill v Australian Broadcasting Corporation [1999] NSWSC 1056

Hoser v Hartcher [1999] NSWSC 527

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Monteiro v R [2022] NSWCCA 37

Monteiro v State of New South Wales [2022] NSWSC 148

R v Monteiro [2021] NSWDC 340

Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66

Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110

Rock v Henderson [2021] NSWCA 155

State of New South Wales v Monteiro (Final) [2020] NSWSC 881

Stollznow v Calvert (1980) 2 NSWLR 749

Witten v Lombard Australia Ltd (1968) 2 NSWR 529; (1968) 88 WN Pt 1 (NSW) 405

Category:

Principal judgment

Parties:

Proceedings 2021/297999
Commissioner of Corrective Services – Applicant
Simon Monteiro – Respondent

Proceedings 2020/70194
State of NSW – Applicant
Simon Monteiro – Respondent

Representation:

Counsel:
Proceedings 2021/297999
A Mykkeltvedt – Applicant
Self-represented – Respondent

Proceedings 2020/70194
A Mykkeltvedt – Applicant
Self-represented – Respondent

Solicitor for the Applicant in each matter:
Crown Solicitor for New South Wales

File Number(s):

2021/297999; 2020/70197

Publication restriction:

Nil

Judgment

INTRODUCTION

1. Before the Court for determination are two notices of motion.

2. The first has been filed by the Commissioner for Corrective Services (the Commissioner) in what I will refer to as the Judicial Review proceedings brought by Simon Monteiro (the respondent) against the Commissioner.

3. The second has been filed by the State of New South Wales (the State) in what I will refer to as the Revocation proceedings brought by the respondent against the State.

THE NOTICE OF MOTION IN THE JUDICIAL REVIEW PROCEEDINGS

4. On 20 October 2021, at a time when he was in custody serving a sentence of imprisonment, the respondent commenced the Judicial Review proceedings seeking the review of a number of decisions made by the Commissioner. The summons commencing the proceedings was pleaded in the following terms:

I advise the Court I file an application for judicial review of the following administrative decisions by Corrective Services NSW (CSNSW); Justice Health NSW –

1. The unreasonable decision to not classify the applicant as a C2 – 6.2 classification inmate and to not alter that decision following the appeal by the applicant of that decision.

2. The decision to not authorise the applicant to purchase and have access to a fan heater, ASICS Gel Nimbus Shoes required to mitigate pain associated with medical conditions.

3. The decision to refuse the applicant authorisation to have aviation study text books into the prison.

4. The decision to refuse the applicant access to tertiary education and study courses, i.e. TAFE/University studies and to provide assistance to the applicant, facilitation of tertiary study pursuits.

5. The decision to refuse to provide the applicant with adequate medical treatment, i.e. access to orthopaedic shoes, issue appropriate required medical certificates (HPNF forms), treatment for sleep apnoea and access to the applicants' [sic] sleep apnoea machine, potentially endangering the applicants' [sic] life.

6. The decision to issue an Extreme Threat Inmate Warning, impose a Behaviour Management Contract in accordance with the ETI warning, the finding that the applicant threatened/intimidated staff and management/treatment of the applicant in accordance with the ETI warning and Behaviour Management Contract.

7. The decision to continually periodically force the applicant to be associated with prisoners CSNSW are fully aware will endanger the physical and mental health of the applicant.

I request the filing fee and all court fees be waived as I am not a person currently of sufficient financial means to accommodate such costs. I further request this matter be dealt with in expedited fashion, as my prison term expires in 10 months.

I request the aforementioned decision with respect to classification (No. 1) be dealt with as an interlocutory matter due to the impending expiry of the sentence and no further opportunity to have the decision fairly reviewed internally by CSNSW, prior to the expiration of the sentence.

Please note I have previously succeeded in a judicial review where CSNSW were concerned, the judgement (sic) details are as follows:

Monteiro v New South Wales (No 2) [2015] NSWSC 1901

5. By a notice of motion filed on 15 June 2022, the Commissioner seeks an order that the Judicial Review proceedings be dismissed. That notice of motion is supported by an affidavit of Jamie McLachlan of 15 June 2022.

THE NOTICE OF MOTION IN THE REVOCATION PROCEEDINGS

6. On 6 July 2020, Fagan J ordered that the respondent be subject to an Extended Supervision Order (ESO) pursuant to the provisions of the Crimes (High Risk Offenders Act) 2006 (NSW) for a period of 5 years. ^[1] By a notice of motion filed on 20 October 2021, the respondent sought an order that the ESO be revoked (the Revocation proceedings).

   1. State of New South Wales v Monteiro (Final) [2020] NSWSC 881.

7. By a notice of motion filed on 23 June 2022 the State of New South Wales (the State) seeks an order that the revocation proceedings be dismissed. That notice of motion is supported by an affidavit of Jamie McLachlan of 17 June 2022.

THE FACTUAL AND PROCEDURAL BACKGROUND

8. On 18 August 2020, following the decision of Fagan J, the respondent pleaded guilty to a number of offences of failing to comply with the ESO, contrary to s 12 of the HRO Act. On 16 June 2021 he was sentenced to an aggregate term of imprisonment of 2 years and 8 months commencing on 18 August 2020, and expiring on 17 April 2023. A non-parole period of 2 years was imposed. It was ordered that the respondent be released to parole on 17 August 2022. [2] By orders made on 17 February 2022, the Court of Criminal Appeal quashed that sentence and, in lieu thereof, imposed a term of imprisonment of 18 months commencing on 18 August 2020 and expiring on 17 February 2022. ^[3] Upon the making of those orders, the respondent was released from custody and has been at liberty (subject to the ESO) since that time.

   2. R v Monteiro [2021] NSWDC 340.

   3. Monteiro v R [2022] NSWCCA 37.

9. As previously noted, the respondent filed a notice of motion on 20 October 2021 seeking a revocation of the ESO. On 8 November 2021, he filed a further notice of motion in the Revocation proceedings seeking (inter alia) an order for leave to issue subpoenas.

10. On 24 February 2022, Campbell J made orders in the following terms:^[4]

(1) Under Rule 7.3 Uniform Civil Procedure Rules 2005 (NSW) grant leave to the respondent to issue a subpoena to the Commissioner, Corrective Services New South Wales for the production of the Justice Health NSW medical files pertaining to Mr Monteiro and to his custodial records and the records of Community Corrections NSW including case notes and Trim psychology case notes (if applicable).

(2) The Notice of Motion of 1 November 2021 is otherwise dismissed.

(3) Direct [the respondent] to regularise the proceedings by filing a summons as initiating process in accordance with Rule 6.4(1)(h) UCPR stating the grounds upon which the revocation of the extended supervision order to which he is subject is sought.

(4) List the matter for directions before the Registrar at 9 a.m. on 8 March 2022.

4. Monteiro v State of NSW [2022] NSWSC 148 at [32].

11. It is noted that order (3) was made in circumstances where the respondent had purported to commence the Revocation proceedings by filing a notice of motion as opposed to a summons.

12. In making those orders, Campbell J observed: ^[5]

11 [The respondent’s] grounds for revocation of the ESO as formulated during the discussion on hearing of his application are really more apt as grounds of appeal. Given the full right of appeal conferred by s 22, I doubt that a reconsideration or review of the original decision is permitted at first instance by the conferral of a power to revoke. It would seem to me that any revocation can only speak from the date on which the power to revoke is exercised and on the basis of evidence or grounds not reasonably available to the person subject to the order when the order was made.

12 As no question of the competence of [the respondent’s] application was ventilated, it is unnecessary to pursue these questions further.

5. At [11]-[12].

13. The Revocation proceedings came before the Court on 8 March 2022 and were adjourned until 5 April 2022. On that day the proceedings were further adjourned until 12 April 2022, at which time they were again adjourned until 24 May 2022. On that day, bearing in mind the orders previously made by Campbell J, the Registrar made the following order:

[The respondent] is to regularise the proceedings in accordance with order 3 made by Campbell J on 24 February 2022, by 10 June 2022.

14. The respondent failed to comply with that order.

15. The Revocation proceedings again came before the Court on 21 June 2022 at which time the Registrar made orders:

1. listing the State’s notice of motion for hearing on 24 August 2022;

2. requiring the State to file and serve written submissions by 28 June 2022; and

3. requiring the respondent to file and serve any submissions in reply by 8 August 2022.

16. The respondent failed to comply with order (iii).

17. The Judicial Review proceedings came before the Court on 19 July 2022 at which time the Registrar made orders:

1. requiring the respondent to file and serve any evidence and written submissions upon which he sought to rely in answer to the Commissioner’s notice of motion by 15 August 2022;

2. requiring the Commissioner to file and serve any evidence in reply and reply submissions by 22 August 2022; and

3. requiring the Commissioner to file a Court Book by 22 August 2022.

18. The respondent failed to comply with order (i).

19. An affidavit of Brett Thomson, solicitor, of 26 October 2022 establishes that written submissions prepared on behalf of the State (in the Revocation proceedings) and on behalf of the Commissioner (in the Judicial Review proceedings) were forwarded to the respondent on 30 June 2022 to an address in Somersby (the Somersby address). The affidavit also establishes that on 22 August 2022, copies of Court Books which had been prepared for the purposes of each proceeding were sent to the respondent at the Somersby address. Mr Thomson was advised on 7 September 2022 that those items had been collected from the Ourimbah Post Office.

The proceedings of 24 August 2022

20. The notices of motion filed on behalf of the Commissioner and the State came before me for hearing on 24 August 2022. At that time, the respondent asserted that he had only received the Court Books when they were provided to him in person at Court that morning. ^[6] That is contrary to the affidavit of Mr Thomson. [7] It might also be noted that at least some of the documents contained in each Court Book were documents prepared and filed by the respondent himself, with which he would obviously have been familiar.

    6. At T2.22.

    7. See [19] above.

21. I do not propose to set out the entirety of what transpired before me on 24 August. Generally speaking, when given the opportunity to address the Court, the respondent sought to advance submissions which were irrelevant. Those submissions culminated in his informing me that he wished to be given an opportunity to file evidence in each matter. When it was pointed out to the respondent that he had already been given that opportunity, he asserted (inter alia) that mental health issues had prevented him from doing so. ^[8] Notwithstanding that such assertions were entirely unsupported by any evidence, I determined that as a matter of fairness, the respondent should be given a further opportunity to file any evidence and submissions upon which he wished to rely.

    8. At T7.10 – T7.21.

22. Accordingly, I listed the two motions for hearing before me on 31 October 2022 and in each matter I made orders requiring:

1. the respondent to serve evidence and written submissions by 19 October 2022; and

2. the Commissioner and the State respectively to file and serve any evidence and submissions in reply by 26 October 2022.

23. The respondent failed, in both matters, to comply with the order in (i).

The recusal application

24. On 26 August 2022, my Associate received a four page email from the respondent. I do not propose to set out its contents. It is sufficient to note that almost the entirety of it was directed to making statements which were offensive to, and defamatory of, present and former Judges of this Court. The balance of the correspondence was directed towards an application that I recuse myself from the hearing of the motions. That application was based on the assertion, absent any proper particularisation, that I would not treat the respondent fairly. When the two motions came before me for hearing on 31 October 2022, that application was renewed on the basis that I was “incapable of hearing anything fairly”. [9] The application was without merit. It did not satisfy the relevant test and was refused. ^[10]

    9. T 1.40 – 2.50 and see further below at [29].

    10. T 3.1 and see Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.

The attempted service of material on the respondent

25. Bearing in mind what had occurred when the matter was before me on 24 August, and the orders I had made on that day, the affidavit of Mr Thomson of 26 October 2022 establishes that on 29 September 2022, out of what was described as “an abundance of caution”, a licenced process server was engaged by the Commissioner and the State to serve a further copy of each Court Book on the respondent, along with a copy of the transcript of the proceedings of 24 August 2022. The process server was instructed to attempt service, firstly at the Somersby address, and alternatively at an address in Toowoon Bay which Mr Thomson understood was that of the respondent’s father.

26. Annexure H to the affidavit of Mr Thomson is a report of the attempted service of that material on the respondent. It is appropriate that the contents of that report be set out in full:

We have received a report from our agent that upon attending the given address he found it to be a fenced rural property and was unable to find anyone in attendance at the time. Our agent then attended the alternate address provided at Toowoon Bay where he spoke with the subject's father, who advised that his son was not at home and that he was unsure as to when he might be available, however, indicated that he was happy to accept the documents on his son's behalf and pass them on. Our agent thanked him but indicated that he needed to give them to his son personally. The subject's father then suggested that our agent call him to make arrangements to meet with him.

We are advised that our agent subsequently called the mobile number provided but there was no answer. Our agent subsequently received a call from the same mobile number a short time later and spoke with a male who identified himself as the subject and during the ensuing conversation Mr Monteiro threatened to have his cattle dog attack our agent if he reattended his address. He quite emphatically told our agent that he did not have his permission to come onto his property and that he would pick the documents up from the Crown Solicitor's office. He then continued using offensive language threatening harm to our agent, at which point our agent terminated the conversation. The subject called once again and stated that he would find out where our agent lived and burn his house down to which our agent responded that if he continued with his threats it would become a police matter and again terminated the conversation.

The proceedings of 31 October 2022

27. The motions came before me for hearing on 31 October 2022. In advancing his application for my recusal, the respondent said: [11]

If you proceed today I won’t be speaking at all. … And if orders are made in terms of costs, I’ll appeal that. … I’ll appeal any decision you make today.

11. T 1.50 – 2.9.

28. When I indicated to the respondent that his application for my recusal was refused, he said: [12]

Well, I won’t be saying anything more today.

12. T 3.4.

29. Notwithstanding that indication, and also notwithstanding his failure to comply with previous orders, I gave the respondent a further opportunity to be heard on the motions before the Court, at which time the following exchange took place: [13]

HIS HONOUR:   …. Now you don’t wish to say anything, Mr Monteiro?

RESPONDENT:   Look, I would say, like to say a few things. This order was          placed on me on the basis of false submissions that were          made by the Crown.

HIS HONOUR:   When you say this order, do you mean the extended          supervision order?

RESPONDENT:   The extended supervision order. The Crown are in possession of – my understanding is that the Crown is bound and obligated to present all known relevant evidence to the Court. So in other words it’s not just their position to win at any costs. The Crown knows I have been suffering for many years – and I’d ask that this be a non-publication order even though youse have not done it in the past, or the press hasn’t observed it – for me being sexually abused as a child by, by members of the Catholic Church.

I was a victim of a attempted very violent home invasion by a member of an outlaw motorcycle gang, and I’d also ask that that be subject to non-publication today because it’s, it’s a matter that’s on foot by the New South Wales Police Force. I was in a car accident recently and I’ve got the evidence here and I’ll present that to – send it to his Honour Bell J, the Chief Justice, recently, and that would make me not able to proceed with the case today. So I don’t believe that – no matter what I put before the Court today, I’ll get a fair hearing. You’ll find some way to work it into something under the guise of jurisprudence but really it’ll be just bias towards myself.

HIS HONOUR:   Thank you. Nothing further?

RESPONDENT:   No.

13. T 3.20 – 3.49.

30. Four matters should be noted in respect of the respondent’s submissions.

31. First, there was no basis for any order to be made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW).

32. Secondly, and bearing in mind the respondent’s reference to not being “able to proceed with the case today”, there was no basis on which to adjourn the hearing.

33. Thirdly, as I have outlined, orders had been made that the respondent file any evidence on which he wished to rely. He did not comply with those orders.

34. Fourthly, the passages of transcript set out above represent the entirety of the respondent’s submissions. He did not comply with previous orders that he file any submissions upon which he wished to rely.

35. In all of these circumstances, and given the procedural history I have outlined, the two motions which are before the Court should be determined.

THE MOTION FILED IN THE JUDICIAL REVIEW PROCEEDINGS

The Orders sought

36. The Commissioner’s motion in the Judicial Review proceedings was filed on 15 June 2022. It seeks orders that:

1. the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW);

2. in the alternative, the whole of the pleadings be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW); and

3. the respondent pay the Commissioner’s costs.

Submissions of the Commissioner

37. Bearing in mind that the Judicial Review proceedings sought relief, pursuant to s 69 of the Supreme Court Act 1970 (NSW), in respect of decisions made by the Commissioner concerning various aspects of the conditions of the respondent’s previous custody, counsel for the Commissioner submitted that this Court had a discretion to refuse to grant relief where to do so would be of no utility. Counsel submitted that the exercise of that discretion was appropriate in the present case, given that the decisions which were the subject of review no longer had any legal effect on the respondent.

38. Counsel for the Commissioner emphasised that the Judicial Review proceedings had been commenced at a time when the respondent was in custody, and thus at a time when the various decisions of which he sought review were said to impact directly upon his custodial conditions. Bearing in mind that the respondent had been at liberty since 17 February 2022, counsel for the Commissioner submitted that there was simply no utility in this Court undertaking a review of any of the decisions which had been made.

39. In advancing these submissions, counsel relied upon r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (the rules), and submitted that the futility of the Judicial Review proceedings rendered them an abuse of process. Counsel submitted that although abuse of process is a general concept, it remains the case that every Court has, as a necessary incident of its jurisdiction, the power to control its own proceedings and procedures. Counsel submitted that the exercise of the power in r 13.4(1)(c) of the rules was appropriate in the present case given that the pursuit of the proceedings would not result in any substantive remedy, and would involve unjustifiable expense and/or use of judicial resources.

40. In the alternative, counsel relied on r 13.4(1)(a) of the rules, and submitted that the proceedings were properly regarded as frivolous or vexatious. Counsel submitted that there was an inescapable inference that the proceedings were sought to be maintained by the respondent, not for the purposes of obtaining relief, but for the purposes of annoying or embarrassing the Commissioner, being the party against whom such relief was sought. This, it was submitted, provided a further basis upon which to grant the orders sought in the notice of motion filed by the Commissioner.

Submissions of the respondent

41. The respondent’s submissions have been set out in full above. [14]

    14. At [29].

CONSIDERATION

42. Rule 13.4 of the rules is in the following terms:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

43. Before turning to merits of the Commissioner's motion, it is appropriate to make three particular observations about the power contained in r 13.4.

44. First, the authorities emphasise that the exercise of the power to summarily dismiss proceedings requires a clear basis. ^[15]

    15. See for example Cox v Journeaux (No. 2) (1935) 52 CLR 713; [1935] HCA 48 at p. 720; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at p. 91; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at p. 129 – 130.

45. Secondly, in circumstances where the principal relief sought by the Commissioner is that provided for in r 13.4(1)(c) of the rules, it has been observed that abuse of process is a general concept, amenable more to illustration than definition. ^[16]

    16. Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [9]; [14] – [16]; Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66 at p 74 – 75.

46. Thirdly, bearing in mind the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), principles of proportionality may justify summary dismissal of proceedings. That said, it remains necessary to adopt a cautious approach given that the consequence of an order for summary dismissal is that a respondent will be denied a hearing. ^[17]

    17. Rock v Henderson [2021] NSWCA 155 at [44] – [46] per Brereton JA.

47. The Court has a discretionary power to refuse relief where it would be useless or futile to grant it. ^[18] In my view, this is such a case. The decisions which are sought to be challenged by the respondent in the Judicial Review proceedings are decisions which impacted solely upon his custodial conditions. Given that the respondent has now been released from custody, any review of those decisions by this Court would be an exercise in futility. Any decision which the Court might reach would have no practical impact or operation upon the respondent.

    18. Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 at 114 per the Court (Kirby P, Clarke and Handley JJA) and the authorities cited therein.

48. For those reasons I am satisfied that the Judicial Review proceedings should be dismissed pursuant rule 13.4(1)(c) of the rules on the basis that are an abuse of the process of the Court.

49. As far as the question of costs is concerned, it was the Commissioner’s position that costs should follow the event. The respondent informed me that he would appeal against the making of any order for costs against him. [19]

    19. At T2.9.

50. There is no reason why the Commissioner should not have the benefit of a costs order. Given the respondent’s stated position, and given his consistent history of failing to comply with orders made by the Court, there is nothing to be gained by reserving the question of costs and making orders for the filing of submissions. To do so would only increase the costs already incurred.

THE MOTION FILED IN THE REVOCATION PROCEEDINGS

The Orders sought

51. The State’s motion in the Revocation proceedings was filed on 23 June 2022. It seeks orders that:

1. the proceedings be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW); and

2. the respondent pay the defendant's costs.

52. The reference to “proceedings” in proposed order (1) is to be construed as a reference to the proceedings purportedly brought by the respondent by way of notice of motion seeking the revocation of the ESO, which should have been brought by summons in light of r 6.4(1)(h) of the rules.

Submissions of the State

53. Counsel for the State submitted that in exercising the power under r 12.7 of the rules, it was necessary to determine whether, on balance, justice demanded that the proceedings be dismissed. Counsel cited the following matters in support of the making of such an order in the present case:

1. the ESO was imposed on the respondent in July 2020, more than 2 years ago;

2. the motion to revoke the ESO was filed by the respondent on 20 October 2021, more than 1 year ago;

3. the respondent has been at liberty since 17 February 2022, a period of more than 8 months;

4. the respondent failed to comply with the order made by Campbell J on 24 February 2022 (more than 8 months ago) to regularise the proceedings and file a summons; and

5. the respondent failed to comply with a further order made by the Registrar on 24 May 2022 (more than 5 months ago) to comply with Campbell J’s previous order;

6. viewed as a whole, the respondent had taken no substantive step to prosecute the proceedings since the filing of the original notice of motion.

54. Counsel submitted, in particular, that the respondent’s failure to properly progress the proceedings by filing a summons setting out the grounds on which he sought the revocation of the ESO meant that it was impossible for the State to understand, or respond to, his case in any meaningful way. It was submitted that in circumstances where the Revocation proceedings had been on foot for more than a year, where the respondent had taken no substantive step to progress them, and where he had failed on two occasions to comply with orders requiring him to file a summons, the proceedings should be dismissed.

Submissions of the respondent

55. The respondent’s submissions have been set out in full above. [20]

    20. At [29].

CONSIDERATION

56. Rule 12.7 of the rules is in the following terms:

12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

57. The power conferred by r 12.7(1) is discretionary, and is not confined by the application of rigid guidelines. ^[21] The essential criterion for the exercise of the power is whether, in all the circumstances, justice requires that the proceedings be dismissed. The application of that criterion commonly involves striking a balance according to the particular circumstances of the case. ^[22]

    21. See generally Stollznow v Calvert (1980) 2 NSWLR 749.

    22. Witten v Lombard Australia Ltd (1968) 2 NSWR 529; (1968) 88 WN Pt 1 (NSW) 405 at 411.

58. That said, and accepting that the circumstances of cases will differ, there remain a number of general principles by reference to which the power in r 12.7 should be exercised, and which were set out by Simpson J (as her Honour then was) in Hoser v Hartcher. ^[23] Those principles include the following:

    23. [1999] NSWSC 527 at [19] and following.

1. the discretion should be exercised only in a clear case where it is manifestly warranted; ^[24]

   24. At [21].

2. any explanation offered by a plaintiff for the delay in proceeding must be considered; ^[25]

   25. At [22].

3. personal blamelessness on the part of a plaintiff, as distinct from tardiness or other fault on the part of his or her legal representative, is relevant; ^[26]

4. if a plaintiff remains inert, the case for striking out will strengthen with the passing of time; ^[27]

5. delay between the date of the cause of action and the commencement of the proceedings may be a relevant factor; ^[28]

6. what a defendant has or has not done by way of preparation for trial may be a factor; ^[29] and

7. the ultimate aim of a Court is the attainment of justice, and the discretion should not be exercised to supplant that aim. ^[30]

   26. At [23].

   27. At [24].

   28. At [25].

   29. At [28].

   30. At [30].

59. These principles were subsequently applied in Gill v Eatts; Gill v Australian Broadcasting Corporation. ^[31]

    31. [1999] NSWSC 1056 at [61] per Levine J.

60. In my view, the circumstances of the present case warrant the exercise of the discretionary power in r 12.7(1) of the rules. By reference to the principles outlined above, the following matters support that conclusion.

61. First, the notice of motion seeking the revocation of the ESO was filed by the respondent more than 12 months ago.

62. Secondly, the plaintiff has been at liberty for more than 8 months.

63. Thirdly, the respondent has taken no substantive step to prosecute the Revocation proceedings other than to seek leave to issue subpoenas.

64. Fourthly, the failure of the respondent to properly prosecute the Revocation proceedings has included his failure to comply, on two separate occasions, with orders to file a summons and regularise the proceedings, a step which is required to be taken in order for the State to know the case that it has to meet.

65. Fifthly, the respondent has been ordered to file evidence in response to the State’s notice of motion. He has not complied with those orders.

66. Sixthly, bearing in mind the matters I have cited, the only available conclusion is that the respondent has remained inert since he filed the notice of motion on 20 October 2021.

67. Seventhly, despite being given several opportunities to do so, the respondent has failed to advance any explanation, by way of evidence or submission, for his failure to prosecute the proceedings, or for his repeated failures to comply with orders of the Court.

68. For these reasons, the making of the order sought by the State is appropriate. Bearing in mind that the revocation proceedings were inappropriately commenced by a notice of motion rather than a summons, I propose to make an additional order dismissing the notice of motion, so as to make it abundantly clear that the respondent’s application for revocation of the ESO has been brought to an end.

69. Noting the provisions of s 23 of the HRO Act I will make no order as to costs in the Revocation proceedings.

ORDERS:

70. In matter 2021/297999 (referred to in this judgment as the Judicial Review proceedings) I make the following orders:

1. The proceedings are dismissed.

2. The respondent, Simon Monteiro, is to pay the costs of the Commissioner of Corrective Services of the proceedings as agreed or assessed.

3. I direct the Registrar to forward a copy of this judgment to the respondent by pre-paid post to the Somersby address which will be provided by my Associate.

71. In matter 2020/70194 (referred to in this judgment as the Revocation proceedings) I make the following orders:

1. The proceedings brought by the respondent, Simon Monteiro, by notice of motion on 20 October 2021 seeking a revocation of the Extended Supervision Order made by Fagan J on 6 July 2020 are dismissed.

2. The notice of motion filed by the respondent, Simon Monteiro, on 20 October 2021 seeking a revocation of the Extended Supervision Order made by Fagan J on 6 July 2020 is dismissed.

3. I make no order as to costs.

4. I direct the Registrar to forward a copy of this judgment to the respondent by pre-paid post to the Somersby address which will be provided by my Associate.

Endnotes

Decision last updated: 04 November 2022