State of New South Wales v Monteiro

[2025] NSWCA 34

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Monteiro [2025] NSWCA 34

Hearing dates:

10 March 2025

Date of orders:

10 March 2025

Decision date:

10 March 2025

Before:

Stern JA

Decision:

The Respondent’s oral recusal application made in court on 10 March 2025 is dismissed.

Catchwords:

COURTS AND JUDGES - Bias - Application for recusal – Claim of lack of independence – Whether actual or apprehended bias

Cases Cited:

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

Michael Wilson and Partners Ltd v Nichols (2011) 244 CLR 427; [2011] HCA 48

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
S Callan SC, C McGorey (Applicant)
Simon Monteiro (Litigant-in-person)

Solicitors:
Crown Solicitors Office (Applicant)

File Number(s):

2025/21405

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 1667

Date of Decision:

20 December 2024

Before:

Garling J

File Number(s):

2023/454715

EX TEMPORE JUDGMENT (REVISED)

1. Mr Monteiro appears before me today as the respondent in an application by the Crown for expedition in respect of a summons seeking leave to appeal for an appeal against a decision of Garling J on 20 December 2024.

2. The matter came before the registrar for directions on 24 February 2024. At that point in time Mr Monteiro indicated that in order to prepare for the expedition application to be heard he would need two weeks, and that he thought that would be fair. On that basis the matter was listed two weeks following that hearing, which is the hearing that is now before me on the application for expedition.

3. At the outset of today’s hearing Mr Monteiro indicated, consistent with an email that he had sent to my chambers shortly before we came into Court, that he wished to have today’s hearing vacated. I heard from Mr Monteiro in support of his application to have today’s hearing vacated, and the matters that he relied upon were generally that he did not have the personal resources to run the application, that he had made an application for legal aid but that had not yet been determined, that he has been in contact with a barrister and solicitor who are willing to act for him subject to legal aid being available, and more generally that he was suffering personal difficulties by reason of the extent of his obligations involving litigation and otherwise at present.

4. I indicated to him that I would, notwithstanding what he had said, go ahead and hear the application for expedition today, but that I proposed that any orders I made listing the matter for hearing, if the application were successful, would be subject to him being entitled to come to the Court to apply to have those hearing dates varied, subject to persuading the Court that that is the appropriate course that it should take.

5. After I indicated that to Mr Monteiro he made an application that I recuse myself on the basis of actual and apprehended bias. I asked Mr Monteiro what matters he relied upon. The matters that he identified for me were that when I was counsel prior to being appointed as a Judge of Appeal of this Court, I had taken briefs and acted for the New South Wales Crown Solicitor and for the State of New South Wales. Secondly, that his perception is that the whole of the Supreme Court, including myself, are against him. Thirdly, that I would not accede to his application to have today’s hearing vacated. Fourthly, that during the course of an interchange between the bar table and the bench I commented that he could express himself well in the context of explaining to him that there may be disadvantages to him if he were to simply leave the courtroom and the application were to proceed. He perceived that that was me stating that he had the abilities of a barrister, or was in effect a barrister. Fifthly, that I had not given weight to the matters that he relied upon, namely his personal difficulties and the difficulties that he would have even appearing today effectively in response to the State’s application for expedition.

6. I have carefully considered all of those matters, and I have reached a clear view that there is no proper basis for me to recuse myself on the basis of either actual or apparent bias. As is well-known, the test for recusal for apprehended bias is the double might test, that is whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out his or her duties or functions with an impartial and unprejudiced mind to the resolution of the issues arising on the motion. That test derives from Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], and Michael Wilson and Partners Ltd v Nichols (2011) 244 CLR 427; [2011] HCA 48 at [31].

7. As is also well-known, the application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits.

8. Having considered the matters that Mr Monteiro has raised, I am confident that the hypothetical fair-minded observer would well understand the role of counsel in a contested proceeding, and in particular that the task of counsel is to put the best arguments that can properly be made in support of their client’s interests and that submissions or statements of counsel’s opinion, although their contents may coincide with the interests of their client, are simply them advocating for their client, not expressing their personal opinions or their personal views.

9. On that basis I do not consider that the fact that I undertook briefs for the New South Wales Crown Solicitor or the State of New South Wales is a basis for me recusing myself. None of the other matters that Mr Monteiro has raised are matters that I consider might lead the hypothetical fair-minded lay observer reasonably to consider that I might not bring an impartial mind to the resolution of the question that Mr Monteiro now brings before the Court. I consider that all of the matters that Mr Monteiro relies upon are matters which are clearly strongly held beliefs of Mr Monteiro’s, but are not matters which would lead myself or me to recuse myself. On that basis, the application is rejected.

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Decision last updated: 12 March 2025