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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prothonotary v Comeskey

Details

AGLC: Prothonotary v Comeskey [2018] NSWCA 18
Case: [2018] NSWCA 18
Decision Date: 16 February 2018

CaseChat Overview and Summary

The Prothonotary of the Supreme Court of New South Wales brought proceedings against Christopher Patrick Comeskey, a lawyer registered in New South Wales under the *Trans-Tasman Mutual Recognition Act 1997* (Cth). The dispute concerned Mr. Comeskey's failure to disclose his suspension from legal practice in New Zealand and his pleas of guilty to criminal offences in that jurisdiction, as well as making false statements in his application for a practising certificate in New South Wales. The matter was heard by Basten, Macfarlan and Simpson JJA of the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Mr. Comeskey's conduct constituted professional misconduct, whether he was a person of good fame and character, and consequently, whether he was a fit and proper person to remain on the roll of Australian Lawyers. The central issue was the impact of his non-disclosure and criminal convictions on his suitability to practise law in New South Wales, notwithstanding his registration under the Trans-Tasman Mutual Recognition scheme.

The Court found that Mr. Comeskey's failure to disclose his New Zealand suspension and criminal convictions, and the false statements made in his application, demonstrated a lack of honesty and integrity. The Court applied the principles that a lawyer must be of good fame and character and a fit and proper person to practise law, and that disclosure of relevant information is a fundamental obligation. The Court concluded that Mr. Comeskey's conduct fell short of the standards expected of legal practitioners.

The Court declared that Christopher Patrick Comeskey 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. Accordingly, the Court directed that his name be removed from the roll and ordered him to pay the Prothonotary's costs.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Prothonotary v Comeskey [2018] NSWCA 18

Most Recent Citation

Bolitho v Banksia Securities Limited (No 11) [2020] VSC 567

Cases citing this decision · 11 of 11 shown

Prothonotary of the Supreme Court of New South Wales v Armstrong
[2024] NSWCA 98 Para 29

…avis at 426 (Dixon J); Prothonotary v Montenegro [2015] NSWCA 409 at [70] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Comeskey [2018] NSWCA 18 at [29]–[31] (Basten JA).” (Emphasis added.)…
Council of the New South Wales Bar Association v EFA (a pseudonym)
[2021] NSWCA 339 Para 2

…Wales v McCaffery [2004] NSWCA 470; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407; Prothonotary v Comeskey [2018] NSWCA 18, discussed.…
Council of the Law Society of the Act v Legal Practitioner LP 202012 (Occupational Discipline)
[2024] ACAT 11

…4] HCA 32 MZAHH v Federal Circuit Court of Australia & Ors [2016] HCATrans 177 NSW Bar Association v Cummins [2001] NSWCA 28 Prothonotary v Comesky [2018] NSWCA 18 Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78 Singh v Minister for Immigration [2018] FCCA 1081 SZRVA v Minister for Immigration and Borde…
Little v New Zealand Law Society
[2021] NZHC 929

…uth Wales and the decisions of Randle v Otago District Law Society (HC Dunedin CP41/99, 16 November 1999) and Prothonotary v Comeskey [2018] NSWCA 18 all indicate a two stage approach is also followed in New South Wales where Mr Little formerly practiced. In Randle , as a barrister and solicitor of the High Court…
Council of the New South Wales Bar Association v Siggins
[2021] NSWCA 40 Para 182

…Applications for admission do not carry a lower standard of honesty. In Prothonotary v Comeskey [2018] NSWCA 18 dishonest statements and omissions to an admission authority were held to warrant removal from the roll.…
The Council of the Law Society of the Australian Capital Territory v Hoyle
[2020] ACTSCFC 3 Para 29

…avis at 426 (Dixon J); Prothonotary v Montenegro [2015] NSWCA 409 at [70] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Comeskey [2018] NSWCA 18 at [29]–[31] (Basten JA). That obligation of candour applies especially in relation to the disclosure of past misconduct that is otherwise relevant to fitness…
Bolitho v Banksia Securities Limited (No 11)
[2020] VSC 567 Para 1

…rt roll could not amount to prejudgement of a breach of overarching obligations, as Mr Elliott submitted that it did. [38]See Prothonotary v Comeskey [2018] NSWCA 18; Re Veron; Ex parte Law Society of New South Wales ( 1966) 84 WN (PT 1) (NSW) 136, 143; Coe v New South Wales Bar Association [2000] NSWCA 13, [21];…
Victorian Building Authority v Andriotis
[2019] HCA 22 Para 10

…ion under the equivalent provision of the TMRA: Prothonotary v Comeskey [74]. [71][2005] 1 Qd R 643. [72](2006) 206 FLR 171. [73][2009] TASSC 12. [74][2018] NSWCA 18.…
Tangsilsat v Council of the Law Society of New South Wales
[2019] NSWCA 144 Para 81

…ofessional misconduct ( A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 252; [2004] HCA 1 at [30]; Prothonotary v Comeskey [2018] NSWCA 18 at [57]-[63]).…
Prothonotary of the Supreme Court of New South Wales v Thomson
[2018] NSWCA 230 Para 18

…ce”: Davis at 426 (Dixon J); Prothonotary v Montenegro [2015] NSWCA 409 at [70] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Comeskey [2018] NSWCA 18 at [29]–[31] (Basten JA). That obligation of candour applies especially in relation to the disclosure of past misconduct that is otherwise relevant to fi…
King v Muriniti
[2018] NSWCA 98 Para 34

…hey were held to be relevant “to the state of the respondent’s knowledge at the time he applied for admission in New South Wales”. [20] 18. [2018] NSWCA 18. 19. Comeskey at [48]. 20. Comeskey at [48].…

View all 11 citing cases →

Cases cited in this decision · 13 of 13 shown

Prothonotary v Gregory
[2017] NSWCA 101 Para 40

…son 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 mis…
Prothonotary of the Supreme Court of New South Wales v Montenegro
[2015] NSWCA 409 Para 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…
Prothonotary of the Supreme Court of New South Wales v Hendrick Jan van Es
[2014] NSWCA 169 Para 40

…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).…
Prothonotary of the Supreme Court of New South Wales v Livanes
[2012] NSWCA 325 Para 40

…lf 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 an…
Scott v Law Society of Tasmania
[2009] TASSC 12 Para 34

…here 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].…
Re Tkacz; Ex parte Tkacz
[2006] WASC 315 Para 20

…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).…
Rich v Australian Securities and Investments Commission
[2004] HCA 42 Para 27

…s 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].…
Re Petroulias
[2004] QCA 261

…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…
A Solicitor v Council of the Law Society of New South Wales
[2004] HCA 1 Para 40

…ry [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 remova…
New South Wales Bar Association v Cummins
[2001] NSWCA 284 Para 41

…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:…
Ziems v The Prothonotary of the Supreme Court of New South Wales
[1957] HCA 46 Para 10

…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.…
Re Davis
[1947] HCA 53 Para 10

…SW. 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.…
[1940] AC 282
[1940] AC 282 Para 13

…ty 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.…

Legislation cited in this decision · 8

Legal Profession Act 2004 (Vic)
31, 32, 34, 497, 5, 590, 6, 6(a) 9 mentions (from Para 12)
Trans-Tasman Mutual Recognition Act 1997 (ACT)
16, 17, 18, 19, 22, 33 7 mentions (from Para 1)
Evidence Act 1995 (Cth)
91, 92 3 mentions (from Para 48)
Lawyers and Conveyancers Act 2006 (NZ)
2 mentions
Uniform Civil Procedure Rules 2005 (NSW)
17.3(2) 2 mentions (from Para 44)
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention
Legal Profession Act 1987 (NSW)
123 1 mention (from Para 13)
Mutual Recognition Act 1992 (Cth)
1 mention (from Para 33)

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