Prothonotary v Comeskey

[2018] NSWCA 18

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Prothonotary v Comeskey [2018] NSWCA 18
Hearing dates:	19 May 2017. Evidence and submissions completed on 10 October 2017.
Decision date:	16 February 2018
Before:	Basten JA at [1]; Macfarlan JA at [38]; Simpson JA at [65]
Decision:	(1)   Declare that Christopher Patrick Comeskey is guilty of professional misconduct. (2)   Declare that Christopher Patrick Comeskey is not a person of good fame and character. (3) Declare that Christopher Patrick Comeskey is not a fit and proper person to remain on the roll of Australian Lawyers maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW). (4)   Direct that the name Christopher Patrick Comeskey be removed from that roll. (5)   Order Christopher Patrick Comeskey to pay the applicant’s costs of the proceedings.
Catchwords:	LEGAL PRACTITIONERS – disciplinary proceedings – New Zealand lawyer registered in New South Wales under Trans-Tasman Mutual Recognition Act 1997 (Cth) – failure to disclose suspension from practice in New Zealand and pleas of guilty to driving and tax-related criminal offences – false statements in application for practising certificate – order made for removal of name from roll of Australian Lawyers
Legislation Cited:	Evidence Act 1995 (NSW), ss 91, 92 Legal Profession Act 2004 (NSW), ss 5, 6, 31, 32, 34, 497, 590; Ch 4 Legal Profession Uniform Law (NSW), ss 16, 22, 261, 262, 264(1), 297 Trans-Tasman Mutual Recognition Act 1997 (Cth), ss 16, 17, 18, 19, 22, 33; Pt 3 Uniform Civil Procedure Rules 2005 (NSW), r 17.3(2)
Cases Cited:	A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 In re Davis (1948) 48 SR (NSW) 33 In re Davis (1947) 75 CLR 409; [1947] HCA 53 In re Petroulias [2005] 1 Qd R 643; [2004] QCA 261 NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 Prothonotary v Gregory [2017] NSWCA 101 Prothonotary v Montenegro [2015] NSWCA 409 Prothonotary v Van Es [2014] NSWCA 169 Re Tkacz; Ex parte Tkacz (2006) 206 FLR 171; [2006] WASC 315 Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Scott v Law Society of Tasmania [2009] TASSC 12 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category:	Principal judgment
Parties:	Prothonotary of the Supreme Court of New South Wales (Applicant) Christopher Patrick Comeskey (Respondent)
Representation:	Counsel: P Griffin SC (Applicant) No appearance of Respondent   Solicitors: Crown Solicitor (Applicant) No appearance of Respondent
File Number(s):	CA 2016/287488

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2014 Mr Christopher Comeskey (the respondent), who was registered as a legal practitioner in New Zealand, was admitted as a lawyer of the Supreme Court of New South Wales, following his registration in New South Wales under Part 3 of the Trans-Tasman Mutual Recognition Act 1997 (Cth). Later in 2014 the Council of the New South Wales Bar Association refused his application for a practising certificate.

In the present proceedings, the Prothonotary of the Supreme Court of New South Wales sought declarations that the respondent was guilty of professional misconduct, not a person of good fame and character and was not a fit and proper person to remain on the roll of Australian Lawyers maintained by the Supreme Court. The Prothonotary also sought an order that the respondent’s name be removed from the roll.

Although the respondent did not oppose the removal of his name from the roll, the Court of Appeal nevertheless had to satisfy itself that it was appropriate to grant the relief sought.

Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27] referred to.

The Court found that, when applying for admission in New South Wales, the respondent failed to disclose that he had been suspended from practice in New Zealand following disciplinary proceedings against him and that he had pleaded guilty in New Zealand to driving and tax-related criminal offences. It also found that, in applying to the NSW Bar Association for a practising certificate, he had provided information that was false by reason of the occurrence of these matters in New Zealand. The Court further found that the omissions and misstatements were not due to inadvertence on the respondent’s part, but to dishonesty.

The Court made declarations that the respondent was guilty of professional misconduct, was not a person of good fame and character and was not a fit and proper person to remain on the roll of Australian lawyers. It ordered that his name be removed from that roll.

Discussion by the Court of:

•   what constitutes professional misconduct, and

• the Prothonotary’s ability to rely upon admissions of the respondent which the Uniform Civil Procedure Rules deemed the respondent to have made on the respondent’s failure to respond to a Notice to Admit Facts served on him by the Prothonotary.

Judgment

1. BASTEN JA: On 13 June 2014 the respondent, a legal practitioner in New Zealand, sought admission, pursuant to the provisions of the Trans-Tasman Mutual Recognition Act 1997 (Cth), to the roll of Australian lawyers maintained by this Court. Having been admitted on 24 June 2014, he applied to the NSW Bar Association for a practising certificate.

2. To practise as a barrister in New South Wales the respondent needed first to be admitted by this Court. Part 3 of the Trans-Tasman Mutual Recognition Act deals with “the ability of a person who is registered in connection with an occupation in New Zealand to carry on an equivalent occupation in Australia.” [1] It sets out a “mutual recognition principle”, together with an exception, in the following provisions:

   1.    Trans-Tasman Mutual Recognition Act, s 15(2).

16   Entitlement to carry on occupation

(1)   The Trans‑Tasman mutual recognition principle is that, subject to this Part, a person who is registered in New Zealand for an occupation is, by virtue of this Act, entitled after notifying the local registration authority of an Australian jurisdiction for the equivalent occupation:

(a)   to be registered in the jurisdiction for the equivalent occupation; and

(b)   pending such registration, to carry on the equivalent occupation in the jurisdiction.

(2)   However, the Trans‑Tasman mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in an Australian jurisdiction, so long as those laws:

(a)   apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and

(b)   are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

17   Application of this Part

(1)   This Part applies to individuals and occupations carried on by them.

(2)   This Part extends to an occupation carried on by an individual, where the individual is subject to more than one system of registration or more than one local registration authority in a participating jurisdiction, and accordingly this Part applies in relation to each such system of registration and each such authority.

(3)   Without limiting subsection (2), an example of such an occupation is that of a legal practitioner, which involves both the admission as a legal practitioner by a court and the issue of a practising certificate by another body.

3. A New Zealand lawyer may apply for admission in NSW by lodging a notice with the court. The content of the notice is prescribed in s 18 of the Trans-Tasman Mutual Recognition Act. Relevantly for present purposes, s 18 required:

18   Notification to local registration authority

…

(2)   The notice must:

(a)   state that the person is registered for the occupation in New Zealand; and

…

(d)   state that the person is not the subject of disciplinary proceedings in any participating jurisdiction (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and

(e)   state that the person's registration in any participating jurisdiction is not cancelled or currently suspended as a result of disciplinary action; and

(f)   state that the person is not otherwise personally prohibited from carrying on any such occupation in any participating jurisdiction, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any participating jurisdiction; and

(g)   specify any special conditions to which the person is subject in carrying on any such occupation in any participating jurisdiction ….

4. Compliance with this regime has the following consequence:

19   Entitlement to registration and continued registration

(1) A person who lodges a notice under section 18 with a local registration authority of an Australian jurisdiction is entitled to be registered in the equivalent occupation, as if the law of the jurisdiction that deals with registration expressly provided that registration in New Zealand is a sufficient ground of entitlement to registration.

5. It may be accepted that the entitlement does not arise if the notice does not contain each relevant statement, or if the statements are set out but are untrue. [2] Those circumstances would provide grounds for refusing the application:

22   Refusal of registration

(1)   A local registration authority may refuse the grant of registration, if:

(a) any of the statements or information in the notice as required by section 18 are materially false or misleading; or

(b) any document or information as required by section 18(3) has not been provided or is materially false or misleading….

2. Scott v Law Society of Tasmania [2009] TASSC 12 at [45] (Crawford CJ), dealing with the Mutual Recognition Act 1992 (Cth), applying within Australia.

6. As more fully explained by Macfarlan JA, at the date the respondent gave notice under s 18(2) he had in fact been the subject of disciplinary proceedings in the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Although the period of his suspension had expired, he had not returned to his practice in New Zealand and did not hold a practising certificate. Further, he was the subject of undertakings which would have continued to qualify his right to practise, had he sought to continue his practice in New Zealand. These matters were not disclosed on his application to be admitted in this jurisdiction.

7. Further false or misleading statements were contained in his application to the Bar Association for a practising certificate. These have been detailed by Macfarlan JA and need not be repeated. Relevantly, however, he described his current profession as “Barrister NZ.”

Jurisdiction of Court

8. The Prothonotary sought to rely upon both the statutory and inherent jurisdiction of the Court with respect to lawyers in seeking to have the respondent’s name removed from the roll. One question raised by this aspect of the application was whether the respondent, in making false or misleading statements, or failing to disclose information, in his application for admission, had been guilty of professional misconduct. That in turn gave rise to a question as to whether, in making his application for admission pursuant to the Trans-Tasman Mutual Recognition Act, he was subject to a duty of candour.

(a)   did the conduct constitute “professional misconduct”?

9. On one view, it does not matter whether the false and misleading statements constituted professional misconduct or merely demonstrated that the respondent is not a fit and proper person to remain on the roll of lawyers. On the other hand, to reject the categorisation of the conduct as “professional misconduct” is to adopt a parochial and restrictive view as to what conduct is undertaken in a professional capacity. There are two broad reasons for not accepting such an approach.

10. First, to the extent that the Prothonotary seeks to invoke the inherent jurisdiction of the Court, the term “professional misconduct” is not being used as a defined term under a statute regulating the legal profession. However, for the purpose of the statutory disciplinary jurisdiction, the term “professional misconduct” is defined, but the definition is inclusive and not exhaustive. Secondly, while it is appropriate to distinguish personal misconduct (such as negligent driving in Ziems’ case[3] or housebreaking, being the underlying misconduct in Davis[4] ) from professional misconduct (being misconduct in the course of legal practice), the latter category should not be narrowly defined. An applicant for admission (or for a practising certificate) has a duty of candour, at least analogous to that required in the carrying on of a legal practice. Breach of that duty should be seen as an example of professional misconduct. Particularly is that so in relation to a person who is entitled to practise in another jurisdiction, where that right is recognised as a basis for admission in NSW.

    3. Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46.

    4. In re Davis (1947) 75 CLR 409; [1947] HCA 53.

11. This approach is consistent with contemporary statutory provisions. Under the Legal Profession Act 2004 (NSW), in force until 30 June 2015, professional misconduct was defined in the following terms:

497   Professional misconduct

(1)   For the purposes of this Act:

professional misconduct includes:

(a)   unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b)   conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2)   For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

12. The term “unsatisfactory professional conduct”, referred to in par (a), may have been limited to conduct which occurred in the practice of law and demonstrated lack of a relevant standard of competence. By contrast, the conduct covered by par (b) was not so limited, although it was defined as “conduct of an Australian legal practitioner”. The term “Australian legal practitioner” was defined to mean “an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate”. [5] An “Australian lawyer” was a person “admitted to the legal profession under this Act or a corresponding law”. [6] (It is not necessary to determine whether that language included a New Zealand lawyer because, at all relevant times, the respondent did not hold a practising certificate.)

    5. Legal Profession Act 2004, s 6(a).

    6. Legal Profession Act, s 5(a).

13. An inclusive definition is not usually to be read as exhaustive where it extends the ordinary meaning of the defined term. In this case the definition covers concepts that would not have been covered by traditional common law usage. That usage was limited to “conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency”; [7] it was not understood to extend to conduct covered by par (a) in s 497(1). Nor did it necessarily extend to conduct “otherwise than in connection with the practice of law”, within par (b). [8]

    7. Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 at 143 (Herron CJ, Sugerman and McLelland JJA), quoting Viscount Maugham in Myers v Elman [1940] AC 282 at 288-289.

    8. The first statutory definition in this State appeared in the Legal Profession Act 1987 (NSW), s 123.

14. In theory, a legal practitioner who made a false statement to the Bar Association in seeking renewal of a practising certificate could have fallen within the express terms of the statutory definition in the 2004 Act. If the same person had allowed his or her practising certificate to lapse (and so no longer fell within the definition of “legal practitioner”, but remained an Australian lawyer) and made a false statement in seeking renewal, that too should constitute professional misconduct, although not covered by the definition. It is not clear why a different result would follow in relation to a person who was admitted as a lawyer in another jurisdiction, with an entitlement to be admitted here, who made a false statement in seeking to give effect to that entitlement.

15. A false statement to a body responsible for admitting lawyers or granting practising certificates may not fall within the characterisation of conduct in the practice of law, but it is clearly conduct “in connection with” the conduct of a legal practice. It therefore falls into a different category from conduct which might be described as misconduct in a personal capacity. In one sense, a non-disclosure to an admitting authority would fall in an intermediate category, between misconduct in the actual practice of law and misconduct in circumstances unrelated to the practice of law. Although personal misconduct is a distinct category, statements to an admitting authority are so closely related to the practice of law as not to be readily distinguishable from it. One reason for that approach is the fact that a non-disclosure is a breach of the duty of candour to the very Court of which the person seeks to be an officer. [9]

    9. See In re Davis (1948) 48 SR (NSW) 33 at 37 (Jordan CJ).

16. The definition of “professional misconduct” in the Legal Profession Uniform Law (NSW) is in similar terms to that in the 2004 Act.

297   Professional misconduct

(1)   For the purposes of this Law, professional misconduct includes—

(a)   unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b)   conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

(2)   For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

17. The relevant definition of “lawyer” (found in s 261) includes any lawyer admitted in an Australian jurisdiction, whether or not holding a current practising certificate. However, as the definition is not exhaustive, it does not necessarily follow that the respondent could not be guilty of professional misconduct in relation to statements made in seeking admission in this jurisdiction, even under the statutory scheme.

18. There would be something strange if it were professional misconduct for a lawyer to make a false statement to a court in which he or she was entitled to practise, but not professional misconduct for the same lawyer to make such a statement to another court in which he or she was seeking to be admitted to practise. Under the Uniform Law, such conduct would constitute professional misconduct if engaged in by an Australian lawyer, whether within Australia or in New Zealand. [10]

    10. Uniform Law, s 262.

17. The irony of adopting a more restrictive view of the scope of professional misconduct is that a false statement to this Court would not constitute professional misconduct but a false statement the day he was admitted, made to the Bar Association in seeking a practising certificate, would. There is a further irony in that his admission on 24 June 2014 took effect “from the date the notice was lodged”, [11] namely 13 June 2014. It would therefore be an even greater anomaly if a statement made in lodging an application which was accepted would not constitute professional misconduct although he became a lawyer in this jurisdiction from that day, possibly meaning the beginning of that day.

    11.    Trans-Tasman Mutual Recognition Act, s 20(2).

18. That result should not be accepted. It follows that false statements made to this Court in seeking admission under the Trans-Tasman Mutual Recognition Act could constitute professional misconduct.

19. There is no doubt that the respondent failed to disclose in his notice pursuant to s 18(2) of the Trans-Tasman Mutual Recognition Act that his registration in New Zealand was subject to special conditions. Had he disclosed that fact, it would have become apparent that the conditions were imposed as a result of disciplinary proceedings. However, the significance of that non-disclosure may be affected by the steps which the Court might take if informed of the true situation.

20. Under the Trans-Tasman Mutual Recognition Act, a lawyer registered in New Zealand is entitled to registration in an Australian jurisdiction “as if the law of [New South Wales] expressly provided that registration in New Zealand is a sufficient ground of entitlement to registration [in New South Wales].”[12] Whether the Supreme Court has any discretion to refuse to admit a person who has complied with the notification requirements of that Act was a matter which vexed a Full Bench of the General Division of the Western Australian Supreme Court in Re Tkacz; Ex parte Tkacz. [13]

    12. Trans-Tasman Mutual Recognition Act, s 19(1).

    13. (2006) 206 FLR 171; [2006] WASC 315 (Martin CJ, Murray and Templeman JJ).

(b)   nature of power

23. There is an issue as to the nature of the power invoked in this case. There is express provision in the Trans-Tasman Mutual Recognition Act for review of the decision of the Registrar of this Court to enter the respondent’s name on the roll:

33   Review of decisions

(1)    Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Australian Tribunal for review of a decision of a local registration authority of an Australian jurisdiction in relation to its functions under this Act.

…

24. In In re Petroulias, de Jersey CJ addressed the potential conflict of jurisdictions arising under the equivalent provision of the Mutual Recognition Act (s 34) in the following passage:[14]

“If the Court of Appeal had admitted Mr Petroulias, by registering him as a solicitor in Queensland under the Act, then that Court would retain the inherent capacity to set aside that registration if effected irregularly, as where premised on a circumstance shown not to have existed. This is especially so bearing in mind the strength of the inherent jurisdiction of the court in relation to the legal profession, which is a pervasive jurisdiction not readily diminished or displaced. (I am indebted to Davies JA for reference to the statement by Dixon J … in In re Davis [at] 424 …) That inherent power would exist notwithstanding the avenue for “review” as such, under the Administrative Appeals Tribunal Act. Section 34 should not be read as excluding that inherent jurisdiction: they comfortably, and workably, co-exist.”

14. [2005] 1 Qd R 643; [2004] QCA 261 at [35].

25. The passage in Davis arose in response to an argument that this Court had no power to decline to admit an applicant certified as qualified by the Barristers Admission Board:

“The Board's approval is a judicial or quasi-judicial determination and like every other ex-parte judicial determination may be recalled if it has been obtained by misrepresentation, non-disclosure or other invalidating means or is based even on misapprehension or error."[15]

15. See also In re Davis (1948) 48 SR (NSW) 33 at 36 (Jordan CJ).

26. In the present case the Court is not asked to revoke the decision only on the basis of non-disclosure of pre-existing circumstances, but on the additional basis of the post-admission false statements made to the Bar Association. This invokes the disciplinary jurisdiction of the Court, rather than a review of the initial decision. There is no suggestion in the Trans-Tasman Mutual Recognition Act that these powers of the Court are affected by the Commonwealth Act.

Reliance on notice to admit facts

27. At the hearing of this matter the Prothonotary relied upon the service of a notice to admit facts, to which the failure to respond resulted in deemed admissions. The Court raised a question as to whether that procedure was inconsistent with the decision of the High Court in Rich v Australian Securities and Investments Commission. [16] The issue in Rich was whether directors of a company against whom the Commission had sought orders disqualifying them from managing a corporation were entitled to resist an order for discovery on the basis that it may expose them to a penalty for forfeiture and was therefore contrary to the privilege against self-incrimination. The Court held that the application of the privilege did not depend upon whether the orders sought could be described as “punitive” or “protective”, but rather whether the person was exposed to the loss of an office, as was the case with the directors, who were therefore exposed to a penalty. [17]

    16. (2004) 220 CLR 129; [2004] HCA 42.

    17. Rich at [37].

28. The judgment itself has no application to the legal profession; nor was any authority relied upon in the majority reasons which dealt with professional discipline. It was only in the dissenting reasons of Kirby J that analogies were drawn from orders for removal of the names of legal practitioners from the roll. [18]

    18. Rich at [125].

29. The majority in Rich did not hold that an order of the court which had adverse consequences for a person necessarily involved exposure to a penalty or forfeiture. Nor did the Court rely upon the proposition that the statutory designation of certain provisions as “civil penalty provisions” was decisive. [19] Had the majority considered the privilege applied with respect to legal practitioners, it would have been necessary for them to deal with the well-established principles that an officer of the court owes a duty of candour. Thus, in dealing with the question whether a person once convicted of housebreaking for the purpose of theft could be admitted, Dixon J stated in Davis: [20]

“But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.

In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed.”

19. Rich at [22].

20.    Davis at 426.

30. In Re Veron, [21] a case involving extortionate overcharging, this Court stated:

“As we have said, no affidavit as to the facts was filed by the respondent or on his behalf despite the fact that we repeatedly drew counsel’s attention to the omission. Eventually Mr Gruzman stated that he had with his junior considered the matter carefully with his client and had decided not to file any affidavit of the respondent. He also stated that his client would not offer to give oral evidence in the witness box. This course, we think, was irregular. The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to by Mr Wilton and other witnesses are substantially true. From the earliest times, and as far back as the recollection of the individual judges of this Court goes, disciplinary proceedings in this jurisdiction in this State have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society (the successor to the Law Institute) was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.”

21.    Veron at 141-142.

31. In principle, there can be no objection to the course taken by the Prothonotary in calling upon the respondent to admit the circumstances which had been drawn to the attention of the Prothonotary and which cast doubt upon his entitlement to remain an officer of the court. His failure to respond was not to be excused by reliance on the privilege which, in any event, he did not seek to invoke.

Orders

32. I agree with Macfarlan JA that the Court should order that the respondent be removed from the roll in this jurisdiction. I do not think it appropriate to prescribe a time within which no application for re-registration should be made. That is for three reasons, of which the first two are pragmatic. First, in circumstances where the respondent has not provided any explanation of his conduct, or corresponded with the Prothonotary, or appeared at the hearing of the matter in this Court, it is not possible to do more than speculate as to the basis upon which he would seek to explain and justify the conduct which has led to the application for the removal of his name from the roll. Secondly, although the imposition of such a condition is a restraint on any future application, it is also likely to be understood as indicating a view of the Court that thereafter an application for admission would be viewed favourably. In the absence of any involvement in these proceedings by the respondent, the specification of such a period is an inappropriate exercise of a discretion.

33. The third reason is that this Court has heard no argument on the operation of the Trans-Tasman Mutual Recognition Act. In dealing with analogous legislation providing for mutual recognition between Australian jurisdictions, differing views have been expressed as to the basis and scope of any discretionary power in the Court to refuse admission. In Re Tkacz (referred to above) the Western Australian Full Court found that the equivalent of s 19(2) of the Trans-Tasman Mutual Recognition Act, (as appearing in the Mutual Recognition Act 1992) providing that the local authority “may” grant registration on the ground of the statutory entitlement, conferred a discretionary power in accordance with the reasoning of the High Court in Davis. [22]

    22.    Tkacz at [48]-[57] and [64]-[69].

34. A similar approach has been adopted by the Queensland Court of Appeal in In Re Petroulias. [23] However, in Scott v Law Society of Tasmania,[24] Crawford CJ expressed some doubt as to whether that reasoning properly applied to cases under the Mutual Recognition Act 1992. [25] Although these cases concerned the application of a Commonwealth Act having a potential to limit the powers of State Supreme Courts under State law, there was no reference to the Constitutional implications of any possible inconsistency.

    23.    Petroulias at [35] (de Jersey CJ ), [58] (Davies JA).

    24. [2009] TASSC 12.

    25. Scott at [42].

35. Further, in this jurisdiction, although the inherent jurisdiction of the Court with respect to “the control and discipline of local lawyers”[26] was not affected by Ch 4 of the 2004 Act dealing with “Complaints and discipline”, a different approach was adopted with respect to admission. The power conferred by s 31 of the 2004 Act, and the maintenance of the roll under s 32, appear to have been in substitution for the inherent power and jurisdiction of the Court to admit practitioners, a matter addressed by reference to the 1823 Charter in s 34 of the 2004 Act.

    26. Legal Profession Act 2004, s 590.

36. The operation of the provision with respect to admissions may have been varied by the Uniform Law, s 16, but none of these issues was addressed in relation to the operation of the Trans-Tasman Mutual Recognition Act. As the respondent apparently remains on the roll of Barristers and Solicitors in New Zealand, it may be that he has a continuing right to seek admission in this State under the Commonwealth Act, with which this Court has no power to interfere. The better course is not to seek to fetter any such right.

Conclusions

37. Subject to the matters discussed above, I agree with Macfarlan JA.

38. MACFARLAN JA: On 8 June 1996 the respondent was admitted as a barrister and solicitor of the High Court of New Zealand. On 24 June 2014 he was admitted as a lawyer of the Supreme Court of New South Wales and his name added to the Roll of Local Lawyers maintained by the Supreme Court pursuant to s 32 of the Legal Profession Act 2004 (NSW) (now the roll of Australian Lawyers maintained by the Supreme Court pursuant to s 22 of the Legal Profession Uniform Law (NSW)). This followed his application for registration as a lawyer of the Supreme Court pursuant to the provisions of the Trans-Tasman Mutual Recognition Act 1997 (Cth). On 25 September 2014 his application for a practising certificate was refused by the Council of the New South Wales Bar Association.

39. In the present proceedings the applicant seeks declarations that the respondent is guilty of professional misconduct (or in the alternative unsatisfactory professional misconduct), is not a person of good fame and character and is not a fit and proper person to remain on the roll of Australian Lawyers. The applicant also seeks an order that the respondent’s name be removed from that roll. The respondent did not appear at the hearing in this Court but an email from him stating that he does not oppose removal of his name from the roll was in evidence.

40. The applicant relies on this Court’s inherent jurisdiction, which is preserved by s 264(1) of the Legal Profession Uniform Law. Although the respondent does not oppose the removal of his name from the roll, the Court must nevertheless satisfy itself that that is appropriate, and that it is appropriate to grant the relief sought (Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27]). The ultimate question on an application for removal of a person’s name from the roll “is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court”, with that question to be determined at the time of the hearing (Prothonotary v Gregory [2017] NSWCA 101 at [6]). As the High Court pointed out in A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [21], “personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness [to practice], and require an order of removal” from the roll. Conduct of the practitioner prior to his or her admission as a practitioner may be relevant to the issue of fitness to practise (In re Davis (1947) 75 CLR 409; [1947] HCA 53). A legal practitioner owes a duty to be candid in dealings with the Court and his or her professional association (A Solicitor at [30]; Prothonotary v Van Es [2014] NSWCA 169 at [38]). That duty includes a duty to disclose material facts at the time of applying for admission as a practitioner (In re Davis at 417).

41. As stated in Prothonotary v Montenegro [2015] NSWCA 409 at [66], “[q]ualities of honesty and integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person”. The Court quoted the following observations of Spigelman CJ in NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [19]-[20] in this context:

“Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.”

THE APPLICANT’S SUMMONS

42. In her Further Amended Summons, the applicant provided the following particulars of the matters she contends warrant the making of the declarations and order sought:

“(i)   On 13 June 2014, the Respondent applied to the Supreme Court of New South Wales for admission as a legal practitioner under the Trans-Tasman Mutual Recognition Act 1997 (Cth) and was admitted to practice on 24 June 2014 with registration to take effect on 13 June 2014.

(ii)   As part of the admission process, the Respondent failed to declare that he had been suspended from practice in New Zealand following disciplinary proceedings in the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. In those proceedings, the Respondent pleaded guilty to two charges of misconduct in his professional capacity and one charge of acting in a negligent or incompetent manner in his professional capacity to such a degree as to bring the profession into disrepute.

(iii)   The Respondent also failed to disclose, as part of the admission process, that he had pleaded guilty to one charge of driving with excess alcohol in New Zealand and pleaded guilty to six offences for failing to submit tax returns in New Zealand.

(iv)   On 27 June 2014, the Respondent applied to the NSW Bar Association for a practising certificate. Question 3.2 in the Application for Practising Certificate asked, ‘Have you ever been convicted (conviction includes a finding of guilt or the acceptance of a guilty plea, whether or not a conviction has been recorded) of any offence other than an excluded offence? The Respondent answered ‘no’ to this question. This answer was false as the Respondent had pleaded guilty to one charge of driving with excess alcohol in New Zealand and pleaded guilty to six offences of failing to submit tax returns in New Zealand.

(v)   Question 4.3 in the Application for Practising Certificate asked, ‘Have you had, or is there currently any complaint lodged against you as a legal practitioner, in any jurisdiction? The Respondent answered ‘no’ to this question. This answer was false because four charges had been laid against the Respondent by the New Zealand Law Society in his professional capacity as a barrister in New Zealand.”

43. I note that these particulars are confined to allegations, first, of a breach of the respondent’s duty of candour in failing to disclose identified matters when seeking admission as a legal practitioner and, secondly, in giving false answers to questions required to be answered for the purpose of obtaining a practising certificate from the NSW Bar Association. The applicant does not rely upon the conduct not disclosed or the conduct about which the false answers were given as itself providing a justification, in whole or in part, for the making of the orders sought.

THE FACTUAL CIRCUMSTANCES

44. The principal evidence relied upon by the applicant comprised admissions deemed by r 17.3(2) of the Uniform Civil Procedure Rules 2005 to have been made by the respondent as a result of him not filing a notice disputing facts asserted in a Notice to Admit Facts served on him by the applicant. Admissions obtained in this way were relied upon by the applicant in Prothonotary v Livanes [2012] NSWCA 325 (at [13] and [18]) and the use of this procedure was referred to with approval by this Court in Prothonotary v Gregory (at [20]).

45. In the present case, the Court sought submissions from the applicant as to whether use of the procedure in a case such as the present might conflict with the decision in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 in which the High Court found that, in proceedings against company directors for penalties and forfeitures, the defendants were entitled to rely on the privilege against exposure to penalties and forfeitures to avoid having to give discovery of documents.

46. In my view, this decision is not presently applicable, at least for the reason that service of the Notice to Admit on the respondent did not compel him to produce any documents or supply any information, or to make any admissions. Although admissions were sought from him, it was open to him to decline to make any admissions by serving a notice disputing the facts asserted in the Notice to Admit Facts. In this respect, there is an analogy to a court rule or direction that a defendant file a defence. As it would be open to the defendant to file a defence simply disputing the plaintiff’s claim, the rule or direction would not conflict with any privilege to which the defendant was entitled.

47. The facts that the respondent is deemed to have admitted as a result of him not filing a response to the Notice to Admit Facts include the following:

“Admission in New Zealand

1)   I was admitted as a Barrister and Solicitor of the High Court of New Zealand at Auckland on 8 June 1996.

2)   I held a practising certificate with an expiry date of 30 June 2011.

3)   I practised as a Barrister in chambers in Auckland, New Zealand. My primary practice consisted of criminal matters. A small component of my [practice] was comprised of matters from other practice areas, including civil, commercial, family, constitutional, appellate and employment law.

4)   I was the subject of disciplinary proceedings in the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (‘the Tribunal’) which were heard on 5 and 6 July 2010.

5)   The proceedings in the Tribunal were brought by Auckland Standards Committee of the New Zealand Law Society which laid three charges of misconduct in my professional capacity.

6)   A summary of Charge A is as follows:

Charge A: misconduct pursuant to ss 241(a) and 7(1)(a)(ii) of the Lawyers and Conveyancers Act 2006 (NZ) (‘LCA’) being conduct that occurred between 1 September 2008 and 31 August 2009 when I was providing regulated services and was conduct that consisted of a wilful or reckless contravention of the Client Care Rules in relation to my instruction to act as assigned counsel for Ms F.

7)   A summary of Charge B is as follows:

Charge B: misconduct pursuant to ss 241(a) and 7(1)(a)(i) of the LCA being conduct that occurred at a time when I was providing regulated services and was conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable in that I rendered a criminal legal aid invoice dated 18 February 2009 charging for services that I was not entitled to charge for.

8)   A summary of Charge C is as follows:

Charge C: on or about 14 February 2008 I made a misleading submission to the Court of Appeal and in doing so was negligent or incompetent in my professional capacity to such a degree as to tend to bring the profession into disrepute.

9)   The Auckland Standards Committee of the New Zealand Law Society also charged me pursuant to s.241(a) or (b) of the LCA with the alternative charge of misconduct or unsatisfactory conduct or negligence or incompetence in relation to comments made to the New Zealand Herald on or about 22 November 2009.

10)   The alternative charges were withdrawn.

11)   On 6 July 2010, the second day of the hearing in the Tribunal, I pleaded guilty to Charges A, B and C.

Facts in relation to Charge A and Charge B

12)   Ms F was a Defendant in criminal proceedings and had been charged with serious indictable offences.

13)   In September 2008, the Legal Services Agency assigned me to appear as Counsel for Ms F.

14)   There was a contract in place between the Legal Services Agency and myself to appear as Counsel for Ms F.

15)   I was the only practitioner in my practice entitled through my contract with the Legal Services Agency to appear as Counsel for Ms F.

16)   I was entitled to claim fees at the Senior Counsel rate for work which I personally undertook.

17)   On at least two occasions Ms F was represented in court appearances by employees of my practice. These appearances were:

a.   On 17 February 2008, Ms F was represented by Mr Soondrum; and

b.   On 6 November 2008, Ms F was represented by Ms Vickki Reed.

18)   A tax invoice dated 18 February 2009 was issued to the Legal Services Agency in the amount of $3,157.00 based on a Senior Counsel rate.

19)   The invoice claimed fees for all of the court appearances representing Ms F as though I had appeared as Counsel.

20)   The invoice dated 18 February 2009 included 15 hours of preparation time in my name including a claim for ‘preparation of callover memorandum’.

21)   The Tribunal found no evidence that I had prepared a callover memorandum or that anyone in my practice had prepared one.

22)   A further tax invoice dated 31 August 2009 contained a claim for 25 hours in preparation in relation to the Ms F matter.

23)   The August invoice was not the subject of a charge.

24)   Ms F complained to the Legal Services Agency that I had failed to act for her.

25)   On 2 December 2009, Ms F was assigned a new legal Counsel.

26)   Ms F also complained to the Legal Services Agency in relation to the following matters:

a.   That I had failed to contact her;

b.   That I had failed to make appointments; and

c.   That I had failed to return her telephone calls.

27)   The Legal Services Agency wrote to me seeking an explanation. I did not provide a response to the Legal Services Agency.

28)   The Legal Services Agency complained to the New Zealand Law Society which commenced it’s [sic] own investigation.

Facts in relation to Charge C

29)   In April 2007, I appeared as Counsel for the accused, Ms Xiao Hui Huang before Justice Clifford and a jury in the High Court of New Zealand. Ms Huang was convicted of possession of methamphetamine for supply and conspiracy to supply methamphetamine.

30)   On 14 February 2008, I appeared as Ms Huang’s Counsel in her appeal against sentence and conviction in the Court of Appeal of New Zealand.

31)   In oral submissions I made submissions in relation to the ground of appeal that the conduct of the Crown Prosecutor was misleading and resulted in a miscarriage of justice.

32)   I made a submission that I was ambushed by the Crown’s evidence at the trial:

a.   That the placebo substance in the appellant’s possession was milk powder and Thai sugar. I submitted that this evidence had ambushed me, because the appellant had told interviewing police that the substance smelt like milk powder. I submitted that this undermined the appellant’s credibility and I was unable to have the substance analysed in order to bolster the appellant’s credibility.

b.   That the appellant’s backpack would, contrary to her claim, be able to contain all of the drugs and paraphernalia including scales that were subject to the charges against her.

33)   The Crown informed the Court of Appeal of the following material facts:

a.   That I had raised the issue of calling a milk powder expert with the trial Judge in Chambers during the course of cross-examination of Crown witnesses;

b.   The backpack and scales were brought to Court during the trial at my request so that I could examine them. This was prior to the Police Detective giving evidence. I knew the backpack was at the Court and was available. When the Police Detective gave evidence about this issue, I did not cross-examine him on it; and

c.   Following conviction and in relation to a disputed fact issue prior to sentencing of Ms Huang, I abandoned the claim that the items would not fit in the backpack.

34)   The Court of Appeal concluded that my submissions were misleading.

35)   I filed an application to recall the judgment of the Court of Appeal.

36)   The Court of Appeal refused my application to recall the judgment.

Facts relating to the withdrawn charge

37)   On 22 November 2009, I made a number of highly critical remarks to the New Zealand Herald about the Court of Appeal, the Judges and a Prosecutor.

38)   My comments included that the Court of Appeal was sub-standard, the Judges were mediocre and the Court could not treat Counsel decently.

39)   I also made derogatory comments about a Prosecutor.

Penalty

40)   On 15 July 2010, the Tribunal held a sanctioning hearing and made an order pursuant to s.242(1)(e) of the LCA that I be suspended from practice as a barrister or solicitor for a period of 9 months.

41)   The order of suspension was stayed until delivery of the Tribunal’s written decision.

42)   The Tribunal made the following orders in relation to costs effective from the date of the delivery of the Tribunal’s written decision:

a.   an order that I pay costs to the New Zealand Law Society in the amount of $44,133.10; and

b.   an order that I reimburse the New Zealand Law Society two thirds of the Tribunal costs in the amount of $22,264.

43)   The penalty also expressly recognised certain undertakings, which I signed on 15 July 2010 and which I gave to the Tribunal.

44)   I made the following undertakings:

a.   I repeat my unreserved apology to the Judges of the Court of Appeal in R v Huang, to members of the judiciary and members of the legal profession for my actions in misleading the Court of Appeal and my unwarranted criticisms of the Bench and a practitioner;

b.   To engage GK Consulting (Mr B Khan, Chartered Accountant) to implement in it’s [sic] entirety the recommendations in Mr Khan’s report filed in mitigation on my behalf. Further, I undertook that Mr Khan would report to the New Zealand Law Society at regular intervals on the implementation of this report and on the conduct of the business aspects of my practice. I undertook to support this reporting as often as required and for as long as required but suggested, in the first instance, quarterly for a 12 month period from 16 July 2010;

c.   To engage a professional mentor (qualified legal practitioner) to be approved by the New Zealand Law Society and to report regularly to the New Zealand Law Society and unless otherwise directed, quarterly for 12 months from 16 July 2010 or as long as required. I would submit a list of proposed mentors, with my preference, to the New Zealand Law Society with the indicated consent of the proposed mentor on or before 30 July 2010;

d.   To relinquish my Legal Services Contract from 16 July 2010 and to assist the Legal Services Agency, fully, in any present or future enquiries in relation to my practice; and

e.   Not to employ any Counsel in my practice without leave of the New Zealand Law Society.

Other relevant matters in New Zealand

45)   I did not return to practice in New Zealand after the period of my suspension, other than to wind up my matters and to undertake handovers to alternate Counsel.

46)   I have not paid the costs awarded against me by the Tribunal.

47)   I owe the sum of $8,000 in fines and costs in relation to orders of Standards Committees.

48)   Prior to becoming a lawyer, I pleaded guilty to six offences notices for failing to submit tax returns.

49)   In approximately 2004, I pleaded guilty to one charge of driving with excess blood alcohol. I was fined and received a disqualification for six months.

50)   Between 2000 and 2012, I was the subject of eleven other complaints to the Law Society in New Zealand.

51)   On three occasions, I was found to have engaged in unsatisfactory professional conduct.”

48. These admissions include reference to a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal of 15 July 2010 to suspend the respondent from practice as a barrister or solicitor for a period of nine months ([40]). The written reasons for that decision are referred to in paragraphs [41] and [42] of those admissions. The reasons were in evidence before this Court. As a result of ss 91 and 92 of the Evidence Act 1995 (NSW), the reasons are not evidence of the facts found by the Tribunal. Nevertheless, the reasons are relevant to the state of the respondent’s knowledge at the time he applied for admission in New South Wales, and for a practising certificate, and therefore to assessment of his conduct at those times.

49. The only portions of the Tribunal’s 23 page reasons that need be referred to for this purpose are as follows:

“[19] [In relation to Charges A and B] … Mr Comeskey has admitted that he breached both his statutory obligation under the Legal Services Act and the Rules of Client Care in that he did not provide any meaningful advice or representation for Ms F at any time during the currency of the retainer, and the invoice provided to the Legal Services Agency was accordingly false.

…

[45] In relation to the charge of having misled the Court of Appeal, Mr Fairbrother’s Memorandum of Submissions on Penalty states that Mr Comeskey accepted that the Court was misled, but this was unintended and that he had apologised.

…

[59] The Legal Services Act charge to which Mr Comeskey pleaded guilty [Charge B] was in our view delicately balanced, and we had significant difficulty deciding whether Mr Comeskey’s misconduct reached the threshold which would attract strike-off.

…

59.4   In the end – and we recognise that it was late in the piece and following significant prodding – Mr Comeskey has finally acknowledged that his practice is an administrative mess, and he has taken and will take steps to remedy that situation for the future when he has the opportunity to return to his practice.

…

59.6   We had regard to the fact that this was the first occasion that Mr Comeskey had appeared before the Tribunal and, as noted above, that the charge related to only one invoice.

…

59.8   Mr Comeskey has demonstrated appropriate remorse and apologised for his misconduct and its aftermath.”

50. The respondent’s Amended Notice dated 19 June 2014 under the Trans-Tasman Mutual Recognition Act included the following statement by the respondent:

“8.   I am not the subject of disciplinary proceedings, or any preliminary investigations or action that might lead to disciplinary proceedings, in New Zealand in relation to any occupation referred to in paragraph 4 [or paragraphs 5 and 6] (a ‘relevant occupation’).

9.   My resignation for any relevant occupation in New Zealand is not cancelled or currently suspended as a result of disciplinary action.

10.   I am not otherwise personally prohibited from carrying on any relevant occupation in New Zealand, and I am not subject to any special conditions in carrying on any relevant occupation, as are result of criminal, civil or disciplinary proceedings in New Zealand.

11.   I am not subject to any special conditions in carrying on any relevant occupation in New Zealand.”

51. His application attached a statutory declaration that the statements contained in his application were “true and correct in every particular”.

52. Following his admission as a lawyer of the Supreme Court of New South Wales on 24 June 2014, he applied to the New South Wales Bar Association for a practising certificate. The relevant questions and answers contained in the form of application, as described to in the applicant’s Further Amended Summons, are as follows:

“Question 3.2 in the Application for Practising Certificate asked, ‘Have you ever been convicted (conviction includes a finding of guilt or the acceptance of a guilty plea, whether or not a conviction has been recorded) of any offence other than an excluded offence?

The Respondent answered ‘no’ to this question.

Question 4.3 in the Application for Practising Certificate asked, ‘Have you had, or is there currently any complaint lodged against you as a legal practitioner, in any jurisdiction?

The Respondent answered ‘no’ to this question.”

53. The application form included a statutory declaration by the respondent that the information he provided in the form was “true in substance and in fact”.

54. Following a request from the Bar Association, the respondent supplied to it a Certificate of Standing dated 8 August 2014 provided to him by the New Zealand Law Society. The Certificate included the following:

“[Mr Comeskey] last held a practising certificate issued by the New Zealand Law Society (NZLS) with an expiry date of 30 June 2011. He would be entitled to apply for the appropriate practising certificate to practise as a barrister sole and/or or an employed barrister or barrister and solicitor under the Lawyers and Conveyancers Act 2006.

Mr Comeskey pleaded guilty to one charge of negligence and two charges of misconduct before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Accordingly, on 15 July 2010, he was suspended from practice for nine months; ordered to pay costs to the NZLS in the amount of $44,133.10, and ordered to reimburse the NZLS two thirds of the Tribunal costs in the amount of $22,264.00. No costs have been paid and these amount remain outstanding. In addition, Mr Comeskey owes the sum of $8,200 in fines and costs in relation to orders of Standards Committees.”

55. Thereafter, the Council of the Bar Association resolved to refuse the respondent’s application for a local practising certificate.

DETERMINATION

56. The evidence clearly establishes that on his application for admission in New South Wales the respondent failed to disclose the matters identified in paragraphs (ii) and (iii) of the Particulars to the Further Amended Summons (see [42] above). It also establishes that as particularised in paragraphs (iv) and (v) of those Particulars he falsely answered the identified questions when applying for a Practising Certificate.

57. In my view, the Court should conclude that these omissions and misstatements were not due to inadvertence on the respondent’s part, but to dishonesty. The events the subject of the non-disclosures and misstatements culminated in substantial contested proceedings in the New Zealand disciplinary tribunal, taking place four years before the respondent’s application for admission in New South Wales.

58. The respondent’s evidentiary admissions indicate that the Tribunal hearing occupied at least two days ([11]). Its decision was supported by lengthy written reasons. After practising in New Zealand for some 14 years, his suspension by the Tribunal for 9 months marked the end of his practice in New Zealand ([45]). He admitted that he has not paid the costs awarded against him by the Tribunal, nor paid “the sum of $8,000 in fines and costs in relation to orders of Standards Committees” ([46] and [47]). In these circumstances, it is inconceivable that the disciplinary difficulties that the respondent had experienced in New Zealand were not present to his mind when he applied for admission and a practising certificate in New South Wales.

59. Further, particularly in light of the respondent’s long period of practice in New Zealand, it can be inferred that he was aware of his duty to disclose matters that could reasonably be regarded as material to the decisions to admit him and issue a practising certificate to him. It can also be inferred that he was aware that the matters referred to in the Further Amended Summons fell into that category. Accordingly, as I have said, it should be inferred that the respondent acted dishonestly.

56. The gravity of his conduct must then be assessed.

57. The seriousness of the respondent’s non-disclosures on applying for admission is to some extent lessened by the fact that the standard form application which he signed included a number of statements about his professional status in New Zealand (see [52] above) which the applicant does not allege were false or misleading. This does not excuse the respondent’s non-disclosures but it indicates that his conduct is less serious than if it had comprised similar non-disclosures committed in the face of requests for the information withheld, or reminders of the obligation of disclosure. For this reason, the respondent’s false statements in his application for a practising certificate, as referred in paragraphs (iv) and (v) of the particulars (see [42] above) were more serious than his non-disclosures on his application for admission.

58. The respondent’s dishonesty in relation to his application for admission and for a practising certificate indicates that he was not at that time a fit and proper person to be on the roll of Lawyers. Nothing in the evidence suggests that the position is any different now. For the reasons given by Basten JA, consideration of whether Mr Comeskey should be re-admitted to the roll at some time in the future should await an application by him for that to occur.

59. As the misconduct concerning the respondent’s admission to practise in New South Wales occurred prior to that admission, I do not consider that a finding of professional misconduct (or unsatisfactory professional conduct) should be made in relation to particulars (ii) and (iii) contained in the Further Amended Summons. The position is otherwise in relation to particulars (iv) and (v) because when the respondent applied to the New South Wales Bar Association for a practising certificate, he was admitted as a legal practitioner in New South Wales. Accordingly, his misconduct at that time was “professional misconduct”.

60. For these reasons, I propose the following orders:

1. Declare that Christopher Patrick Comeskey is guilty of professional misconduct.

2. Declare that Christopher Patrick Comeskey is not a person of good fame and character.

3. Declare that Christopher Patrick Comeskey is not a fit and proper person to remain on the roll of Australian Lawyers maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW).

4. Direct that the name Christopher Patrick Comeskey be removed from that roll.

5. Order Christopher Patrick Comeskey to pay the applicant’s costs of the proceedings.

65. SIMPSON JA: I agree with Macfarlan JA.

**********

Endnotes

Amendments

19 February 2018 - Coversheet: "2014" deleted from Legal Profession Uniform Law.

Coversheet: "In re Davis (1947) 48 SR (NSW) 33" changed to "In re Davis (1948) 48 SR (NSW) 33".

[2]: The words "two exceptions" changed to "an exception".

[22]: "West" changed to "Western".

Footnote 9: "In re Davis (1947) 48 SR (NSW) 33" changed to "In re Davis (1948) 48 SR (NSW) 33".

Decision last updated: 19 February 2018