Gersten v The Law Society

Gersten applied to the Supreme Court of New South Wales for an order that he be permitted to continue to practise as a solicitor in New South Wales, notwithstanding his suspension from practice in the United Kingdom. The Law Society of New South Wales opposed the application. The primary judge dismissed Gersten's application. Gersten appealed to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the automatic suspension provisions of SCR Part 65A rule 3 applied to Gersten, or whether an order could be made permitting him to continue to practise. This involved considering the extent to which a foreign judgment striking off or suspending a legal practitioner, or an order committing a legal practitioner to prison, should be recognised or given effect in New South Wales. The court also had to consider the relevance of comity in this context and the primary consideration of a practitioner's fitness to practise.

The Court of Appeal held that the foreign judgment striking off or suspending a legal practitioner, or an order committing a legal practitioner to prison, was not entitled to recognition in New South Wales. The court reasoned that the fitness of a legal practitioner to practise in New South Wales was the primary consideration, and this required an independent assessment by the New South Wales courts. Comity was not a relevant consideration when determining whether a practitioner was fit to practise. The court found that the foreign judgment did not provide a sufficient basis for overriding the provisions of SCR Part 65A rule 3.

Leave to appeal was granted, and the appeal was allowed. The Court of Appeal made orders permitting Gersten to continue to practise as a solicitor in New South Wales.