Comeskey v NSW Bar Association (No 2)

[2015] NSWSC 1227

Supreme Court

New South Wales

Medium Neutral Citation:	Comeskey v NSW Bar Association (No 2) [2015] NSWSC 1227
Hearing dates:	Written submissions
Date of orders:	27 August 2015
Decision date:	27 August 2015
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Plaintiff to pay defendant’s costs on a party and party basis
Catchwords:	COSTS – unsuccessful appeal against refusal by Bar Association to issue local practicing certificate to plaintiff – plaintiff to pay costs of the appeal – whether costs should be on an indemnity basis
Cases Cited:	Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 801, 46 FCR 225
Category:	Costs
Parties:	Christopher Patrick Comeskey (plaintiff) NSW Bar Association
Representation:	Counsel: In person (plaintiff) Mr D McLure (defendant)   Solicitors: Jennifer Bicknell, Kennedys (Australasia) Pty Ltd (defendant)
File Number(s):	2014/331658

Judgment

1. His Honour: I have received written submissions from Mr Comeskey and from Mr McLure, counsel for the Bar Association, on the costs of this matter. Mr Comeskey argues that an order for costs should not be made against him. Mr McLure argues not only that costs should be awarded, but that they should be on an indemnity basis.

2. In his brief submission Mr Comeskey criticised the Bar Association’s procedures, as he had sought to do at the hearing of the appeal. This, of course, provides no basis for defeating an order for costs. I found that the appeal was a hearing de novo, a fact which the Bar Association had conveyed to Mr Comeskey before the hearing, and I offered him an opportunity for an adjournment to frame his case accordingly, which he declined. Otherwise, Mr Comeskey raises his personal situation and that of his family, asserting considerable hardship in the light of his inability to practice here. He compares his situation with that of the Bar Association, which he describes as a “well resourced organisation”, and argues that an order for costs would tend to deter people such as him seeking to have a decision of the Association challenged.

3. He has provided no evidence of the financial hardship he and his family face but, in any event, it does not appear to me that I could have regard to such an ad misericordiam submission. Nor would it be appropriate for me to compare his resources with those of the Bar Association. It is to be remembered that the purpose of an award of costs (at least on the ordinary basis) is compensatory, not punitive.

4. Nothing Mr Comeskey has put leads me to the view that costs should not follow the event. However, I am not persuaded that costs should be awarded on an indemnity basis. In support of that proposition Mr McLure refers to the extensive examination of the issue by Shepphard J in Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 801, 46 FCR 225. He argues that Mr Comeskey pursued his appeal with wilful disregard to the relevant law and the facts known to him. The former is a reference to his refusal to accept that the appeal was a de novo hearing and to conduct his case accordingly. The latter refers to his commencing the appeal knowing that there were eleven other complaints to the New Zealand Law Society which he had not disclosed to the Bar Association, and his conduct in refusing his consent to the New Zealand Law Society disclosing relevant records and his resistance to the Bar Association’s application for leave to issue a subpoena to obtain them.

5. These were matters to which I had regard in determining the merit of his appeal. However, after careful consideration, I do not consider that they warrant an order for indemnity costs. Certainly, they are unsatisfactory features of his conduct of the proceedings, and to me they demonstrate a significant lack of judgement by a man desperate to protect his professional status. However, I am not satisfied that they justify a departure from the usual order that costs be on a party and party basis.

6. Accordingly, Mr Comeskey is to pay the Bar Association’s costs on that basis.

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Decision last updated: 27 August 2015