Monteiro v State of New South Wales

[2025] NSWSC 184

Supreme Court

New South Wales

Medium Neutral Citation:

Monteiro v State of New South Wales [2025] NSWSC 184

Hearing dates:

06 March 2025

Date of orders:

06 March 2025

Decision date:

06 March 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Adjourn this matter part-heard before Garling J until 13 March 2025.

(2)   Direct that any further open affidavit or other open material be filed and served by midday 12 March 2025.

(3)   Direct that any further confidential material be provided to the Court by 4pm on 12 March 2025.

(4)   Reserve all questions of costs.

(5)   Parties have liberty to apply.

Catchwords:

EVIDENCE – Privileges – Public interest immunity – Evidence excluded in public interest – Matters of state – Where a judge requests the production of further evidence to overcome any defect in a claim for public interest immunity – Whether an adjournment should be granted in circumstances where further evidence is required to overcome any defect in a claim for public interest immunity where the respondent opposes the adjournment – Whether a delay of one week in the resolution of a claim for public interest immunity over a small number of redacted pages is likely to disadvantage the respondent in their preparation for hearing – Where any consideration of claim of public interest immunity should occur in a calm environment allowing for considered debate

Legislation Cited:

Not Applicable

Cases Cited:

Attorney General for New South Wales v Stuart [1994] 34 NSWLR 667

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Simon Monteiro (Plaintiff/Respondent)
State of New South Wales (Defendant/Applicant)

Representation:

Counsel:
In person (Plaintiff/Respondent)
R Bhalla (Defendant/Applicant)

Solicitors:
Crown Solicitors Office (Defendant/Applicant)

File Number(s):

2023/454715

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. Mr Monteiro is the subject of an Extended Supervision Order (“ESO”). He has made an application by Notice of Motion dated 20 February 2024 (‘the ESO Motion”) to this Court for that ESO to be revoked in its entirety. That application has been expedited and is due to be heard by the Court on 5 May 2025. The Court has set aside a period of three days for the hearing of that application.

2. The Court has given directions with respect to the preparation and service of evidence on the ESO Motion. Part of those directions required – i.e., Order 13 mof the Court’s orders of 28 November 2024 - that the State was to file and serve any affidavit, including an affidavit attaching records relevant to the ESO imposed on the plaintiff including case notes, material contained in the OIMS database, notes in the Justice Health record or other records of Corrective Services, including the ESO supervision team, upon which the State proposes to rely in opposition to the ESO Motion. I then ordered Mr Monteiro to file and serve material in reply by 28 February 2025. I made a further order that the State file any other material by 4 April 2025.

3. An affidavit of Luke Sampson, affirmed on 31 January 2025, was served by the State, apparently in compliance with the orders made on 28 November 2024. It comprised about six volumes of documents, which included copies of records of the kind that were described in Order 13 of the Court’s orders of 28 November 2024.

4. At the time that material was served, redactions were made on a limited number of the pages provided. The State was of the view that public interest immunity applied to these parts of the pages which had been redacted.

5. At the request of Mr Monteiro, pursuant to the grant of liberty to apply which I made on 28 November 2024, the matter was restored to the list before me on 28 February 2025. On that day, Mr Monteiro put an argument to the Court that the State should not be permitted to redact the documents in question. Counsel appearing for the State at the time, informed the Court that the basis of the redactions was a claim for Public Interest Immunity. On that day, I made an order that all material, by way of a Notice of Motion, open affidavits and open submissions in support of the claim for Public Interest Immunity or any other privilege, be filed and served by 4 March 2025. I ordered that any confidential affidavit and confidential written submissions in support of the claim for Public Interest Immunity be provided to the Court by 5 March 2025, and I fixed the proceeding for hearing today, 6 March 2025.

6. The State has read four affidavits, two of which respectively affirmed on 4 and 5 March 2025 were open affidavits, and two of which affirmed on the same day respectively were confidential affidavits. The State has also tendered two open exhibits and two confidential exhibits. These affidavits are by the same deponent, Mr Bernhard Ripperger, an Assistant Commissioner of Corrective Services NSW.

7. A debate occurred earlier this morning as to whether Mr Monteiro ought have leave to cross-examine the deponent of the open affidavits. I delivered a judgment declining to grant leave.

8. The affidavits were all then formally read, and I retired to read the contents of the confidential affidavits and exhibits. Upon returning, I raised a series of questions with counsel for the State. Those questions, in general terms, addressed issues about the State's claim for immunity about which I needed persuasion, and issues about which I was not satisfied that I had adequate information or material to enable a proper consideration of the claim for Public Interest Immunity.

9. In taking that approach, I was following a course which, to my understanding, has been conventional in this Court for a very long time. Such a course was referred to with approval by Hunt CJ in Attorney General for New South Wales v Stuart [1994] 34 NSWLR 667 (“Stuart”) at p 681 where his Honour noted that the usual course was that a party claiming immunity:

“will be requested by the judge to produce further evidence which overcomes any defect in the claim which may be apparent on the face of the evidence already produced."

10. That course has continued for some years since Stuart and is not, as I have said, an uncommon process for this Court to engage in.

11. One of the matters which I raised with counsel was whether the well-known ‘informer’ category of public interest immunity had application in the circumstances of the documents here being sought to be redacted where it did not appear that information which was being sought to be redacted necessarily informed Corrective Services NSW of the existence of a crime or was material relevant to whether a crime had been committed.

12. The public interest in not revealing the identity of informants is well known and has been developed over many years. Courts have developed techniques for dealing with such claims. I indicated to counsel that I was not affirmatively persuaded that the information of the kind sought to be redacted in the documents provided reflected the same public interest which needed to be addressed by the imposition of an immunity.

13. I also drew counsel's attention to another group of documents which are individually called “Inmate Profile Documents”. These documents contain both information which was sought to be redacted and information which was not, in circumstances where the information was of a similar kind. It related to the affairs of Mr Monteiro whilst he was in custody and much of the information was recorded with an inactive status.

14. I pointed out that neither the material which I received, nor the records themselves to counsel showed any detail as to the basis for the Non‑Association requirements which are contained on the Inmate Profile Documents. I drew attention to the fact that there was no obvious logic in whether one or other such non association requirement was active or inactive, and no apparent logic as to whether the requirement applied geographically to a single or else multiple locations. I also enquired of counsel what the public interest was that required the imposition of an immunity.

15. Counsel put a number of submissions but ultimately sought an adjournment to enable the State to bring more evidence for the Court which would likely come forward as confidential affidavits to be submitted to address the deficiencies of evidence and deficiencies of proof.

16. Mr Monteiro objected to the grant of an adjournment. He submitted that the State had been given ample opportunity to put its case for Public Interest Immunity and if there was any deficiency in proof of that claim for Public Interest Immunity, then the State should not be given a further chance to rectify such deficiency.

17. Mr Monteiro pointed to the fact that the hearing of his substantive Motion for the revocation of the ESO was to take place in May and that, given what had transpired so far, time did not fairly permit of any further adjournment of this claim for immunity because the documents which he is seeking in an unredacted form are essential to the proof of his claim.

18. Without seeking to be precise, some thousands of pages of documents and records have been produced by the Crown as attachments to the affidavit of Mr Sampson which is to be relied upon. The documents in respect to which there are disputed redactions exist in one group, namely the OIMS notes of 36 pages, and in respect of the Inmate Profile Document material of 20 pages. Whatever be the precise number of pages annexed to the affidavit of Mr Sampson, the number of pages the subject of redactions and the claim for Public Interest Immunity is a very small percentage of the material which the Crown, in due course, would seek to rely upon.

19. A delay of a week in the resolution of a claim for Public Interest Immunity over such a small percentage of the documents is, in my assessment, unlikely to disadvantage Mr Monteiro in his preparation for the hearing on 5 May 2025.

20. In opposing the grant of an adjournment, Mr Monteiro did not point to any identifiable specific prejudice arising from a delay of a week to deal with this application. He did, however, draw the Court's attention to a number of factors to which, he submitted, regard should be had. The first is that over the next few days he would be required to get ready for, and to confront, an application for leave to appeal by the State, and I assume expedition, against an interlocutory judgment which I delivered in December 2024 by which I varied several conditions of Mr Monteiro's ESO.

21. He pointed to the fact that the State was bringing considerable resources to bear thereby causing him a great deal of emotional distress and anxiety in circumstances where, as is apparent from his submissions, he holds a firm view that the original judgment ordering that he be subject to an ESO was made pursuant to legislation which he described as unconstitutional and inappropriate.

22. He also noted that his emotional distress and anxiety has been, and continues to be, exacerbated by the conduct of officers of Corrective Services New South Wales in the way in which they go about supervising his behaviour pursuant to the ESO. It appeared to me that Mr Monteiro was suggesting, as an example of the extent to which he felt he had been inappropriately treated, that if the matter was adjourned to next week he would not be returning to further appear in this Court and that he would seek to have the matter dealt with in the Supreme Court of Victoria rather than in the Supreme Court of New South Wales.

23. Without accepting that the Supreme Court of Victoria would necessarily have the jurisdiction or be the appropriate forum for the determination of this current dispute, the fact is that if Mr Monteiro wishes to have that Court examine this dispute, then it is open to him to take such steps as he thinks fit to give effect to that. Whether those steps are legally valid or legally effective is not a matter upon which I pass any comment. But they are not matters which would be relevant to adjourning the present application for a week.

24. I am conscious that Mr Monteiro is appearing for himself. I am conscious that he is required to do a good deal of work to overturn, or have the Court revoke, the existing ESO in May 2025. However, when any Court is considering an application for Public Interest Immunity, given the nature of the application and the importance of it, such consideration must occur in a calm environment in which both sides to the debate are given an adequate opportunity to put forward, or resist, the claim for immunity. This claim has come on quickly. It has been able to be dealt with quickly. What is sought is that it should be dealt with quickly again, but in an additional week.

25. In my view, whilst I accept the impact of such a delay upon Mr Monteiro, balancing out the need for calm reflection about matters of Public Interest Immunity, I am satisfied that adjournment of one week should be granted.

Orders

26. I make the following orders:

1. Adjourn this matter part-heard before Garling J until 13 March 2025.

2. Direct that any further open affidavit or other open material be filed and served by midday 12 March 2025.

3. Direct that any further confidential material be provided to the Court by 4pm on 12 March 2025.

4. Reserve all questions of costs.

5. Parties have liberty to apply.

**********

Decision last updated: 11 March 2025