Monteiro v State of New South Wales

[2022] NSWCA 126

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Monteiro v State of New South Wales [2022] NSWCA 126

Hearing dates:

11 July 2022

Date of orders:

15 July 2022

Decision date:

15 July 2022

Before:

Meagher JA

Decision:

(1) Direct that the appellant file and serve any notice of motion that the Court receive additional evidence on the hearing of the appeal by 15 September 2022.

(2) Direct that the affidavit evidence relied on as establishing the grounds for the application in order 1 and the evidence which the appellant wants the Court to receive on the hearing of the appeal be filed and served by 15 September 2022.

(3) Direct that the appellant file and serve by 15 September 2022 an amended notice of appeal which includes a statement of the specific grounds relied on in support of the appeal in accordance with UCPR r 51.18(1)(e).

(4) Direct that the appellant file and serve his written submissions in support of the appeal by 15 September 2022.

(5) In the event that the appellant does not file and serve such written submissions and an amended notice of appeal by 15 September 2022, order that the appeal be dismissed and that the appellant pay the respondent’s costs of the appeal.

(6) Order that the appellant pay the respondent’s costs of the hearing on 11 July 2022.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – show cause hearing – where consistent failure to comply with directions for filing and service of submissions – where reasons given for failure include pending application for legal aid and attempts to obtain legal representation – where existing notice of appeal deficient – appellant given final opportunity to file submissions and amended notice of appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 58

Crimes (High Risk Offenders) Act 2006 (NSW), s 13

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.18(1)(e)

Cases Cited:

Ghosh v NineMSN Pty Ltd [2015] NSWCA 334

Witten v Lombard Australia Ltd [1968] 2 NSWR 529

Category:

Procedural rulings

Parties:

Simon Monteiro (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:

R Coffey (Respondent)

Solicitors:

Appellant in person
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/226741

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWSC 881

Date of Decision:

06 July 2020

Before:

Fagan J

File Number(s):

2020/70194

Judgment

1. MEAGHER JA: On 6 July 2020 the primary judge (Fagan J) ordered that the appellant, Mr Monteiro, be subject to an extended supervision order made under the Crimes (High Risk Offenders) Act 2006 (NSW) (Crimes (HRO) Act) for a period of five years commencing on 6 July 2020 (State of New South Wales v Monteiro [2020] NSWSC 881). On 4 August 2020, representing himself, Mr Monteiro filed a notice of appeal against those orders (proceeding 2020/226741) which in its terms requests that he have “leave to submit grounds and other supporting material, assessments, etc” at a later date.

2. The history of the prosecution or otherwise of that appeal is summarised below.

3. The proceeding was before me on 11 July 2022 to enable Mr Monteiro to respond to the Registrar’s direction made on 1 June 2022 that he show cause why the appeal should not be dismissed under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 12.7 for want of due despatch.

4. In Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 this Court stated:

The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with “due despatch” is broad and should not be confined by rigid formulae (Stollznow v Calvert [1980] 2 NSWLR 749 at 751 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405:

“Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised” (at 412).

The course of the appeal proceeding

5. Although the appeal proceeding was commenced in early August 2020, on 21 March 2022 the Registrar made orders that it be listed for directions on 27 April 2022 on the basis that 27 April 2022 would be considered as the “first directions date under the Practice Note”. The effect of para. 12 of the Court of Appeal Practice Note is that the parties should be ready to take a hearing date no later than the second directions hearing (which in this appeal is to be treated as having occurred on 1 June 2022).

6. That is not to say that nothing happened in the period between August 2020 and March 2022.

7. The appeal was initially set down for hearing on 3 November 2020 and the appellant’s submissions were to be filed by 29 September 2020. However, on 18 August 2020 Mr Monteiro was arrested and charged with three breaches of the extended supervision order. He was also refused bail, and on 14 September 2020 he was charged with a further 38 breaches. On 16 September, whilst in custody, Mr Monteiro filed handwritten submissions (of 16 pages) in respect of the appeal. The directions made on the same day fixing the appeal for 3 November were also made whilst the appellant was in custody.

8. On 30 September 2020, the 3 November hearing date was vacated. At a directions hearing in February 2021 Mr Monteiro indicated he wished to file further written submissions and was given until 17 February 2021 to do so. He subsequently indicated that he also wished to file a motion to lead further evidence in the appeal. In March and April 2021 Mr Monteiro sought an adjournment of the preparation of the appeal to enable him to pursue an application for legal aid. At a directions hearing on 9 June he sought an adjournment until after the sentencing hearing in relation to ten of the charges of breaching the requirements of the supervision orders to which he had pleaded guilty. On 16 June 2021 Bright DCJ sentenced Mr Monteiro to an aggregate term of imprisonment of 2 years 8 months to commence on 18 August 2020 when he was first arrested (R v Monteiro [2021] NSWDC 340).

9. There followed a series of directions hearings which in part concerned the case management of an application by Mr Monteiro to issue subpoenas to various persons, including “Corrective Services NSW”, “Justice Health NSW” and “The proper officer, NSW Police”, requiring the production of a wide range of material, most of which was not on its face likely to be relevant to issues arising in the appeal. Ultimately his motion for the issue of subpoenas to those entities was heard by the Registrar in mid-October and subsequently dismissed on 12 November 2021.

10. On 20 October 2021 Mr Monteiro filed a motion in the underlying common law proceeding (2020/70194) for an order under s 13 of the Crimes (HRO) Act that the extended supervision order be revoked. On the same day, Mr Monteiro commenced a proceeding (2021/297999) against the Commissioner of Corrective Services NSW seeking to review decisions said to have been made by either “Corrective Services NSW” or “Justice Health NSW” in relation to complaints made about various aspects of the conditions of his imprisonment.

11. Having dismissed his earlier application, on 17 November 2021 the Registrar directed that Mr Monteiro file any further motion in relation to the issue of subpoenas by 1 December 2021. On that day the proceedings were further adjourned to 23 February 2022 to enable that to occur. On the latter date, the appeal proceedings were stood over again to 21 March 2022, it being noted that such a motion “will be filed”.

12. On 17 February 2022 Mr Monteiro’s appeal from the sentence imposed by the District Court on 16 June 2021 was allowed, with the consequence that he was released from custody on that day (Monteiro v R [2022] NSWCCA 37). The application for leave to bring that appeal was filed in September 2021.

13. Returning then to the directions made on 21 March 2022 (see [5] above), in addition to indicating that 27 April 2022 would be considered as the first directions date, the Registrar also noted that if the appeal was adjourned beyond 27 April 2022, the parties would need to be ready to take a hearing date on that adjourned date or the proceeding would be listed for Mr Monteiro to show cause why the appeal should not be dismissed for want of due despatch.

14. On 27 April 2022 there was no appearance by Mr Monteiro, and no written submissions had been filed in accordance with the direction on 21 March 2022. The following directions were made for the preparation of the appeal:

1. Direct that the appellant file and serve any submissions in support of his appeal by 25 May 2022.

2. Note that appellant has not yet filed his proposed motion.

3. Stood over for further directions on 1 June 2022.

15. Mr Monteiro did not file any written submissions by 25 May 2022. Accordingly, at the “second” directions hearing on 1 June 2022 the Registrar made the following orders, which included a show cause direction:

1. Appellant's submissions to be file and served by 6 July 2022.

2. Stood over for further directions on 11 July 2022 and to Show Cause why the appeal should not be dismissed for want of due dispatch.

3. If the appellant's submissions are not filed by 6 July 2022, the appellant is to file and serve an affidavit by 7 July 2022 outlining why the appeal should not be dismissed for want of due dispatch.

16. Mr Monteiro did not comply with this direction for written submissions. Nor did he file, or has he filed, any affidavit explaining why the appeal should not be dismissed.

Consideration

17. The matters to which this Court must by s 58 of the Civil Procedure Act 2005 (NSW) give effect in managing proceedings include their efficient and timely disposal.

18. Addressing the position as at 11 July 2022 and accepting that the proceeding should be treated as if the first return date was in late April 2022, the position remains that Mr Monteiro is in breach of three directions made for the filing and service of his submissions, namely those made on 21 March, 27 April and 1 June 2022.

19. He is also in breach of the direction made on 1 June that he file an affidavit outlining why the appeal should not be dismissed. The consequence of the latter breach is that on the hearing of the show cause application, this Court has no evidence, either factual or otherwise, which seeks to explain or mitigate those failures and the delays they have caused. For that reason alone, this Court is unable to be satisfied that any sufficiently “credible and satisfactory” explanation has been offered for those failures and that delay (cf Witten v Lombard Australia Ltd [1968] 2 NSWR 529 per Walsh JA in the passage cited above).

20. On 11 July Mr Monteiro appeared in person and, in the course of his addressing the Court, referred to a series of matters which were put forward in one way or another as explaining or mitigating his past delays in prosecuting his appeal, and as likely to justify further such delays.

21. First, Mr Monteiro advised that he has applied for legal aid. No details were given and it was accepted that previous applications had been made and rejected. Mr Monteiro suggested that at this point in time the position may be different because “evidence has come to light that was not able to be presented” earlier. The nature of that evidence and its relevance to the appeal was not revealed.

22. Secondly, it was said that he had approached a solicitor who in turn was speaking to a senior counsel, presumably on the basis that counsel may advise or act with respect to the appeal. Nothing more was said about that subject. Mention was also made of assets which Mr Monteiro claimed to have in the United States which he was presently not able to access, the implication being that those assets might be used at some stage to fund his legal representation. Again there was no elaboration which enables any assessment of whether there is any real likelihood that moneys might become available to fund the appeal.

23. Thirdly, Mr Monteiro says that presently much of his time is spent in caring for his very elderly father who is not well. The extent to which this limits or prevents or has limited or prevented his ability to represent himself in the appeal or give instructions to lawyers was not explored.

24. Finally, Mr Monteiro says that he suffers from a post-traumatic stress disorder which has affected his ability to prosecute the proceedings, either representing himself or, perhaps, in instructing lawyers. He indicated that he wanted the opportunity to put psychiatric evidence before the Court which might explain his delays in prosecuting the proceedings to date and indicate an inability to do so going forward. Whether Mr Monteiro might obtain such evidence and whether it supports his contention as to his having PTSD remains wholly uncertain. The Court has no explanation as to why this evidence might not have been obtained and led in response to the Court’s direction of 1 June 2022.

25. Notwithstanding all of these uncertainties, Mr Monteiro made clear that he wished to prosecute the appeal. At the same time he did not offer any directions to which he would consent to enable that to occur in a timely and efficient manner.

26. As a result, on the basis of the material before it, the Court can do no more than speculate as to whether an application for legal aid might be made and granted; as to whether Mr Monteiro might be able to secure legal representation; and as to whether the position truly is that Mr Monteiro cannot conduct the proceedings for himself or instruct lawyers to do so on his behalf.

27. At the same time it is apparent that Mr Monteiro wishes to continue proceedings in the Common Law Division by which he seeks to revoke the extended supervision order and to challenge various decisions of Corrective Services NSW. Those proceedings have also reached the stage where the State of New South Wales and the Commissioner of Corrective Services have made applications for summary dismissal, which are listed for hearing on 24 August 2022.

28. In this state of affairs, it seems to me that a way forward which has regard to the interests of both parties to the appeal is to give Mr Monteiro one further opportunity to get his appeal ready for hearing and heard. In my judgment two months is a sufficient time to allow him to obtain legal representation if that is possible, and with or without the benefit of legal aid, and to prepare written submissions, again either with the benefit of legal representation or not. The directions and orders which I propose to make also allow for an application to be made for the receipt of further evidence in the appeal, that being a matter which Mr Monteiro has referred to on many occasions in directions hearings before the Registrar. The directions also require that Mr Monteiro cure the deficiency in his notice of appeal by stating “specifically, the grounds relied on in support of the appeal” (UCPR r 51.18(1)(e)).

29. For these reasons, I make the following orders:

1. Direct that the appellant file and serve any notice of motion that the Court receive additional evidence on the hearing of the appeal by 15 September 2022.

2. Direct that the affidavit evidence relied on as establishing the grounds for the application in order 1 and the evidence which the appellant wants the Court to receive on the hearing of the appeal be filed and served by 15 September 2022.

3. Direct that the appellant file and serve by 15 September 2022 an amended notice of appeal which includes a statement of the specific grounds relied on in support of the appeal in accordance with UCPR r 51.18(1)(e).

4. Direct that the appellant file and serve his written submissions in support of the appeal by 15 September 2022.

5. In the event that the appellant does not file and serve such written submissions and an amended notice of appeal by 15 September 2022, order that the appeal be dismissed and that the appellant pay the respondent’s costs of the appeal.

6. Order that the appellant pay the respondent’s costs of the hearing on 11 July 2022.

30. There is one further matter to which reference should be made. After the completion of argument the Court reserved its decision, and did not give leave to either party to make any further written submissions. On 14 July 2022 Mr Monteiro sent an email to my chambers. No copy of that email was sent to the respondent or its counsel. The Court replied to both parties confirming that no regard would be had to the content of that document. That said, it should be recorded that the email contains allegations directed to judges or former judges of the Court. Depending on the circumstances, the making of those allegations, which address matters wholly irrelevant to any issue before the Court, would constitute a serious contempt of court on the part of Mr Monteiro. Nothing more need be said.

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Amendments

25 July 2022 - [1] - "records" to "requests"

[13], first line - punctuation change

Reference to UCPR r 51.18(1)(e) added to coversheet

Decision last updated: 25 July 2022