HIS HONOUR: The plaintiff, Christopher Patrick Comeskey, is on the roll of barristers and solicitors in New Zealand. On 13 June 2014, he applied for admission as a legal practitioner in New South Wales by a notice under the Trans-Tasman Mutual Recognition Act 1997 (C'th). On 19 June 2014 he filed an amended notice, and on 24 June 2014 he was admitted to practice here by an order of a registrar of this Court, effective from 13 June.
On the day that order was made he applied to the defendant, the New South Wales Bar Association, for the issue of a local practising certificate. By letter of 9 October 2014, the executive director of the Bar Association informed him that the council of the Association (the Bar Council) had resolved, under s 48(1) of the Legal Profession Act 2004, to refuse his application on the basis that it was not satisfied as required by s 48(3)(b) of that Act, that he was a fit and proper person to hold a local practising certificate. The letter was accompanied by an information notice under s 48(12) setting out the Bar Council's reasons for its decision, including a summary of the relevant provisions of the Act and reference to relevant authority.
He has appealed to this Court against that decision, pursuant to s 108 of the Legal Profession Act, which relevantly provides:
"Appeal against certain decisions of Councils
(1) A person who is dissatisfied with any of the following decisions of a Council may appeal to the Supreme Court against the decision:
(a) a decision to refuse to grant or renew a local practising certificate, or
(b) a decision to amend, suspend or cancel a local practising certificate.
(2) The Supreme Court may make such order in the matter as it thinks fit.
… "
In this Court Mr Comeskey appeared unrepresented, and Mr McLure of counsel appeared with Mr Davis for the Bar Association. The summons commencing the appeal sets out eight grounds, challenging the Bar Council's reasoning process, claiming a denial of natural justice and bias, and asserting that the decision is "unduly harsh" and generally that it is "plainly wrong."
The Bar Association read an affidavit of its executive director, Mr Philip Selth, which exhibited a large volume of documentary material. There was also admitted, as exhibit A, a volume of documents from New Zealand concerning complaints made against Mr Comeskey there. Mr Comeskey filed no evidence. At the hearing before me he submitted that this was an appeal in the strict sense, in which he sought to demonstrate error in the Bar Council's reasons for its decision. Mr McLure argued that the appeal amounts to a hearing de novo, citing authority in support of that proposition.
Clearly, that is so and I ruled accordingly. Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 was an appeal against the Law Society's refusal to issue a practising certificate under s 37 of the Legal Profession Act 1987, the terms of which were relevantly similar to s 108 of the present Act. Smart J held that it was not an appeal in the strict sense but an exercise by the Supreme Court of its original jurisdiction. His Honour referred to authority explaining the rationale of that approach at pp 673-4, as follows:
"The decision of the Council was an administrative one reached by an
administrative body. Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283; 64 WN (NSW) 63 per Jordan CJ; Phillips v The Commonwealth (1964) 110 CLR 347 at 350 and Dwyer v National Companies G & Securities Commission (1988) 15 NSWLR 285, establish that an appeal to the court from a decision of an administrative authority is not an appeal in the strict sense but an exercise by the court of its original jurisdiction.
In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, Mason J, with whom Barwick CJ and Stephen J agreed, said (at 621-622):
'Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283, as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch III of the Commonwealth Constitution. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing'."
The decision of Smart J has been referred to with approval in a number of subsequent authorities: see, for example, the Law Society of New South Wales v Glenorcy [2006] 67 NSWLR 169, per Mason P at [14] (172), Barakat v the Law Society of New South Wales [2014] NSWSC 773 at [1] (Beech-Jones J). The same approach was taken by the Full Court of the Supreme Court of the Australian Capital Territory in relation to a similar provision for appeal in the Legal Profession Act 2006 (ACT) in the Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 at [21]-[26] (in which Veghelyi was also cited with approval).
Having given my ruling on this matter, Mr Comeskey declined an invitation for an opportunity to put on evidence, saying that he wished only to challenge the Bar Council's findings on the material which had been before it. I should add that in December 2014, two months before the hearing of this matter, there was correspondence between him and the Bar Association's solicitor about the nature of the appeal. Being on notice of the submission he intended to make, the solicitor informed him that it was a hearing de novo, directed him to the relevant authority, and enquired whether he intended to file and serve an affidavit. In further correspondence the solicitor warned him that, in the absence of evidence from him, the Bar Association would object to assertions of fact being made from the bar table, and would submit that he bore the onus of persuading the court that he was a fit and proper person to hold a practising certificate and that his refusal to give evidence demonstrated a lack of candour inconsistent with a finding in his favour on that issue.
The Bar Association refused Mr Comeskey's application for a practising certificate in the light of information concerning his conduct as a practitioner in New Zealand, together with his failure to volunteer information about that conduct in the pursuit of his admission to practice in this State.
In July 2010, Mr Comeskey pleaded guilty before the New Zealand Lawyers and Conveyancers Tribunal to three charges of misconduct in his professional capacity laid by the New Zealand Law Society. The decision of that Tribunal is in evidence. Put shortly, the charges were these:
(a) conduct consisting of a wilful or reckless contravention of the Client Care Rules in relation to his acting as assigned counsel for Ms F;
(b) rendering a criminal legal aid invoice charging for services that he was not entitled to charge for;
(c) making a misleading submission to the Court of Appeal.
The first two charges related to the same matter. Mr Comeskey had been assigned by the Legal Services Agency to act for Ms F, who had been charged with serious indictable offences. By his contract with the Legal Services Agency he was the only practitioner in his practice entitled to appear in the matter. However, in the course of the proceedings Mr Comeskey appeared on one occasion but on two other occasions Ms F was represented by employees of his practice. Following a complaint by Ms F to the Legal Services Agency new counsel was assigned in the matter. She also complained that he failed to make appointments for her and to return her phone calls. This was the substance of the first charge.
The second charge arose from an invoice he sent to the Legal Services Agency in relation to that matter. This claimed a sum of a little over $3,000, calculated at the rate for senior counsel. Apart from being the only practitioner in the practice entitled to act for Ms F, only he could claims fees at the senior counsel rate. The invoice claimed for representation in each of the three court appearances as if he himself had appeared. The invoice also made a claim in his name for 15 hours preparation time, which was not supported by any evidence. Included in that claim was a claim for preparation of a "callover memorandum", when in fact no such memorandum had been prepared by Mr Comeskey or anyone else in his office.
The third charge arose from his conduct while appearing for the appellant in an appeal against conviction at her trial for possession of methylamphetamine for supply and conspiracy to supply methylamphetamine. Mr Comeskey had also appeared in the trial. One of the grounds of appeal which he argued complained of a miscarriage of justice resulting from misleading conduct by the Crown prosecutor at the trial. As the Tribunal's reasons explained it, the ground initially was directed to whether what was described as the "placebo substance" in the appellant's possession was milk powder alone or a combination of milk powder and Thai sugar. The appellant had told police in an interview that the substance smelt like milk powder, but Crown evidence at the trial that it also contained Thai sugar tended to undermine her credibility on this aspect. Mr Comeskey complained in the appeal that this evidence had "ambushed" him and he was unable to have the substance analysed in the hope of bolstering the appellant's credibility.
In support of the ground Mr Comeskey also submitted that he was ambushed by the evidence of a detective that the appellant's backpack found with the drugs and scales would contain all the paraphernalia so that it could be transported for supply, contrary to her claim that it could not. Mr Comeskey complained that the backpack had not been disclosed to the defence except in photographs and "would have loved" the exhibits to be at the court, so that the jury could determine the matter for itself. He said that he had looked at the backpack briefly in a witness room, but only in order to check the appearance and smell of the placebo substance, not in relation to the issue whether the equipment could fit into it. He claimed that that issue had not arisen at that stage.
However, during the appeal the Crown drew the court's attention to some material facts:
1. Mr Comeskey 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.
2. Prior to the detective giving evidence about the capacity of the backpack, the backpack and scales were brought to the court at Mr Comeskey's request so that he could examine them. (The Tribunal received evidence from another police officer involved in the case from which it was clear that the backpack was brought to the court to show Mr Comeskey that it had that capacity.)
3. He did not cross-examine the detective about the substance or the backpack.
4. Following conviction, in relation to a disputed fact issue prior to sentencing, he abandoned the claim that the relevant items would not fit in the backpack.
In delivering its judgment in the appeal, the court described Mr Comeskey's submissions on this ground as "more misleading that inept." The court added, "Need we mention the fundamental importance of counsel accurately stating the position, and being absolutely candid and forthright with the Court?"
Mr Comeskey did not accept the court's judgment that it had been misled, and sought to recall the judgment. On application for recall the court confirmed its previous judgment, rejecting a submission on Mr Comeskey's behalf that there was no evidential foundation for the proposition that he had misled the court. The court added:
"[33] Mr Comeskey did not accept the Court's judgment that it had been misled, and applied to recall the judgment. On application for recall the Court of Appeal confirmed its previous judgment, stating, variously as follows:
'43 The duty not to mislead the Court applies generally to all aspects of interaction with the Court.
46 The conduct which formed the basis of the Court's comments was conduct in the face of the Court which breached Counsel's overriding duties to the Court.
...
49 Counsel take an oath on admission, where they swear truly and honestly to conduct themselves in the practice of a barrister and solicitor according to the best of their knowledge and ability. It is a fundamental duty of counsel in terms of this oath not to mislead the Court.
53 Mr Comeskey would be expected to have been aware that he made misleading statements and that he was under a duty not to do so. He had every opportunity during the hearing to correct those statements. Indeed it is very clear....that Mr Comeskey was well aware of his obligation not to mislead the Court. He said at one point "I'm being careful here." He was then warned by Hansen J: "well you need to be careful."
54 In any event, Mr Comeskey has had full opportunity, in the course of the recall application, to put forward any explanation for the comments that he had not put forward at the hearing of the appeal. He chose not to provide any evidence to the Court'."
The Tribunal suspended Mr Comeskey from practice for 9 months, and ordered him to pay the Law Society's costs of a little over $44,000 and the costs of the Tribunal at a little over $22,000. In addition, he was required to give an undertaking to apologise unreservedly to the judges of the Court of Appeal in the drug matter, to members of the judiciary and members of the legal profession for misleading the court and for his unwarranted criticisms of the Bench and a practitioner. He was also to give undertakings to engage a consultant to implement certain recommendations concerning the running of his practice, to engage a professional mentor to supervise his practice, to relinquish his Legal Services Agency contract, and not to employ any counsel in his practice without the leave of the Law Society.
Mr Comeskey did not return to practice in New Zealand after the period of his suspension, and he has not paid the costs awarded against him by the Tribunal. He had also been dealt with in previous years for six offences of failing to submit tax returns, to which he had pleaded guilty, and a charge of driving with excess blood alcohol, to which he also pleaded guilty.
Between 2000 and 2012, he had been the subject of eleven other complaints to the Law Society in New Zealand. These were of varying degrees of gravity, and for the most part related to his representation of clients, including occasions of overcharging them. Two complaints arose from rudeness or the use of offensive language, in one case to a judge and in another to a court officer. In the majority of cases the Law Society took no action, and one complaint was not pursued. However, on three occasions he was found to have engaged in unsatisfactory professional conduct. For one of those he was censured and fined, for another he was censured, fined and ordered to refund part of his fees, and on the third he was ordered to forego fees claimed from a client.
Mr Comeskey's amended notice under the Trans-Tasman Mutual Recognition Act seeking admission in this State was accompanied by a declaration attesting to the truth of the information contained in it. Also attached was a certificate by the deputy registrar of the High Court in Auckland of 4 June 2014, confirming that he is still upon the roll of barristers and solicitors in that country. Of significance for present purposes is his assertion in par 7 of the notice that he has "substantive registration in New Zealand for the occupation of barrister …", and the assertions in pars 10 and 11, as follows:
"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 a 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."
The broad definition of "occupation" in the Act embraces a legal practitioner.
The statement in par 10 was false. He did not hold a practising certificate in New Zealand and, accordingly, was prohibited from practising as a lawyer: s 21 of the Lawyers and Conveyances Act 2006 (NZ). For the same reason his assertion in par 7 that he had "substantive registration in New Zealand for the occupation of barrister" was, at the very least, misleading. The statement in par 11 was also false, given the undertakings he was required to give by the New Zealand Tribunal.
In his application of 24 June 2014 to the Bar Association for a practising certificate, one of the questions he was required to answer (2.3) was to describe his current profession. To this he responded "Barrister NZ." To question 3.2, whether he had ever been convicted ("conviction" including a finding of guilt or acceptance of a guilty plea, whether or not a conviction is recorded) of any offence other than an excluded offence, he answered, "No." (An "excluded offence" is one in respect to which the conviction has been quashed.) To question 4.3, "Have you had, or is there currently, any complaint lodged against you as a legal practitioner, in any jurisdiction?", he answered "No." At the end of this document also there is a statutory declaration in which he attested to the truth of the information contained in it.
Here again, his assertion that his current profession was as a barrister was, at best, misleading. The other answers to which I have referred were false.
On 30 June 2014, the certification officer of the Bar Association, Mr Barrie Anthony, sent an email to Mr Comeskey requesting, among other things, a certificate of standing from the New Zealand Law Society. On 8 August 2014 he forwarded that certificate to the Bar Association. It revealed that he had not held a practising certificate in New Zealand since 30 June 2011, although he remains entitled to apply for one. It also recorded his plea of guilty to "one charge of negligence and two charges of misconduct" in the New Zealand Tribunal, his suspension for 9 months, and the orders for costs made against him. It noted that those costs had not been paid, and added that he owed $8,200 "in fines and costs in relation to orders of Standards Committees." This was the first time in the process of his seeking admission and a practising certificate in this State that he revealed any of these matters.
On 3 September 2014, Mr Selth forwarded to Mr Comeskey a notice, pursuant to s 46(5) of the Legal Profession Act, seeking further information concerning his application. Apart from questions about the matters dealt with by the disciplinary Tribunal, he was asked whether he had been convicted (that expression including a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction was recorded) of failing to file a tax return or any other offence related to taxation. He was also asked whether he had been convicted (in that same extended sense) of any other offence.
It was in his response to this notice, forwarded the same day, that he revealed for the first time his six offences of failing to submit tax returns and his driving with excess blood alcohol. As to the tax offences, he said that they related to a period "essentially before I became a lawyer and followed a longstanding dispute concerning the carry forward of tax losses from share losses against future income periods." He added that he ultimately abandoned the dispute, and that the total penalty imposed was "from memory" $800. He also described extenuating circumstances relating to the driving offence, adding that he had "not repeated it."
Mr Selth's notice also repeated the enquiry as to whether he had had, or whether there was currently, any complaint lodged against him as a legal practitioner. To this he responded that he believed all matters pertaining to him were dealt with in 2010 (which I take to be a reference to the Disciplinary Tribunal proceedings). He added that he could "only rely on the statement in the NZ certificate that there are no complaints outstanding and no action pending or in progress." This refers to the statement at the end of the certificate that he was not then suspended from practice or struck off the roll, and no professional misconduct charges were pending.
Finally, in relation to the $8,200 said in the certificate of standing to be owing for fines and costs in relation to orders of Standards Committees, he was asked to provide a copy of those orders and to advise whether he had paid those fines and costs. To this he responded that he did not have a copy of the orders, and that he had not been in a financial position to settle on the matters. He added that he had "no assets and no trust", and that the "2010 matters effectively wiped all of my finances." He referred to a long period of stress in his professional life, including medical issues, of which he was able to relieve himself by his "self-imposed period of non-practice."
Provision for the notice given by Mr Comeskey under the Trans-Tasman Mutual Recognition Act is to be found in s 18 of that Act. Relevantly for present purposes, that section provides:
"18 Notification to local registration authority
(1) A person who is registered in New Zealand for an occupation may lodge a written notice with the local registration authority of an Australian jurisdiction for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the Trans-Tasman mutual recognition principle.
(2) The notice must:
(a) state that the person is registered for the occupation in New Zealand; and
(b) state the occupation for which registration is sought and that it is being sought in accordance with the Trans-Tasman mutual recognition principle; 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
…
(h) give consent to the making of inquiries of, and the exchange of information with, the authorities of any participating jurisdiction regarding the person's activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice.
… ."
Section 19 relevantly provides:
"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.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
… ."
Section 20(1) requires registration to be granted within one month after the lodgement of the notice under s 18, subject to a power provided by subs (3) to postpone the grant of registration. By s 21 the grant of registration may be postponed if, among other things, any of the statements or information required by s 18 are materially false or misleading. Section 22 provides that registration may be refused for the same reason (among others).
Mr McLure pointed out that s 18(2)(d) does not by its terms require an applicant for registration to disclose that he or she had previously been the subject of disciplinary proceedings in New Zealand. However, he took me to authority for the proposition that an overriding duty of candour would require an applicant to disclose such a matter. He referred to cases dealing with the Mutual Recognition Act 1992 (C'th), which provides for interstate registration within Australia and is relevantly in the same terms as the Trans-Tasman Mutual Recognition Act. It is convenient to refer to the Acts as the "Mutual Recognition Act" and the "Trans-Tasman Act" respectively.
In Re Petroulias [2004] QCA 261, [2005] 1 Qd.R. 643, a Victorian practitioner had been registered in Queensland under the Mutual Recognition Act. He had provided a notice under s 19 of that Act, the equivalent of s 18 of the Trans-Tasman Act. In particular, s 19(2)(d) of the Mutual Recognition Act is identical to s 18(2)(d) of the Trans-Tasman Act. Section 20(1) of the Mutual Recognition Act is relevantly similar to s 19(1) of the Trans-Tasman Act. The matter had been referred to the Court of Appeal by the Principal Registrar, following the solicitor's failure to disclose that he was awaiting trial for offences of dishonesty under the Crimes Act 1914 (C'th) arising from his position as an officer of the Australian Taxation Office. The court found that his registration had been based upon a materially false statement, and remitted the matter to the registrar with advice that his registration under the Act should be set aside.
His counsel had accepted that a person seeking admission in Queensland other than pursuant to the Mutual Recognition Act would be obliged to disclose such a matter. However, he argued that the solicitor, having lodged a notice under s 19 of the Act, was entitled by the terms of s 20(1) to registration. In rejecting that submission, de Jersey CJ referred to the submission of opposing counsel at [25] (651-2), as follows:
"On the other hand, Mr Burns, who appeared for the Queensland Law Society, submitted that 'an applicant does not have an absolute entitlement to registration merely by reason of the fact of his or her entitlement to practise in another State. If that were so, all that would be required to be notified in order to obtain registration would be that fact.' He submitted that having received a notice under s 19, the local registration authority must embark on a 'process of assessment', in the course of which it may exercise certain discretions (for example, to postpone (s 22) or refuse (s 23) registration), and be informed through the independent enquiries authorized by the notice as envisaged under s 19(2)(h)."
Section 19(2)(h) of the Mutual Recognition Act is the equivalent of s 18(2)(h) of the Trans-Tasman Act. Similarly, ss 22 and 23 of the Mutual Recognition Act are the counterparts of ss 21 and 22 of the Trans-Tasman Act.
Speaking of the consent required by s 19(2)(h), the Chief Justice continued at [26] (652):
"That licence assumes the relevance of matters which may fall outside the strict confines of s 19(2)(d) for example. The expression 'information ... regarding the person's activities in the relevant occupation ... or otherwise regarding matters relevant to the notice' is broad, and would embrace the pendency of serious criminal charges alleging among other things dishonesty."
His Honour concluded at [30] (652):
"It would be detrimental to the public interest, and untenably inconvenient, were the legislation to require the local authority to register an applicant in that case, and thereby hold him out as fit to practise in this jurisdiction, pending separate proceedings in the other State to determine, for example, whether his registration should be suspended. That is why the local authority is not by the legislation denied all discretion, and is equipped with a capacity for independent inquiry the results of which may inform the exercise of that discretion."
Section 34 of the Mutual Recognition Act, having its counterpart in s 33 of the Trans-Tasman Act, provides for review by the Administrative Appeals Tribunal of decisions of a local registration authority. However, de Jersey CJ held that the court retained an inherent jurisdiction to set aside a registration under the Act "if effected irregularly", having regard to "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." His Honour added, "Section 34 should not be read as excluding that inherent jurisdiction: they comfortably, and workably, co-exist:" [35].
On this issue the other members of the court expressed similar views: McMurdo P at [51] (656), and Davies JA at [53] and [58] (656-7).
The same view of the Supreme Court's inherent jurisdiction was taken by the Full Court of the Supreme Court of Western Australia in Re Tkacz [2006] WASC 315, 206 FLR 171. At [46] - [57] (183-6) the court referred to authorities on the supervisory jurisdiction of the Supreme Court with respect to legal practitioners generally, including Re Davis (1947) 75 CLR 409 and Re Petroulias. Their Honours examined relevant provisions of the Mutual Recognition Act at [62] - [69] (186-8). They observed at [64] that the provision in s 20(1) that a person is "entitled to be registered" in the circumstances set out in the subsection was a reference to the "sufficiency of the qualifications or experience necessary to secure registration," noting that by subs (2) the grant of registration remained a matter for the discretion of the local registration authority. Their Honours concluded at [66] (187) that the "long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll … remains unaffected by the mutual recognition legislation." The "established and long recognised power of the Court to determine whether a person should be admitted to its Roll" was held to apply equally to applicants for admission under the mutual recognition legislation as it does to applicants under the provisions of the relevant West Australian legislation, the Legal Practice Act 2003: [69] (188).
Mr McLure drew my attention to Scott v Law Society of Tasmania [2009] TASSC 12, in which the Full Court of the Supreme Court of Tasmania expressed some reservation about this line of authority. It is unnecessary to examine the facts of that case except to note that the appellant, when seeking admission to practice in Tasmania under the Mutual Recognition Act, had failed to disclose that she had been the subject of a complaint for misconduct in the Northern Territory. Crawford CJ, with whom Slicer and Evans JJ agreed, said at [42] - [43]:
"My view is that the overall duty of candour that normally applies to applications for admission is not as broad in the case of applications under the mutual recognition regime. That is because the Mutual Recognition Act, s20(1), establishes entitlement to admission under the Act as if the law of the second State expressly provides that admission in the first State is sufficient ground of entitlement to admission, provided that the applicant is a person who has lodged a notice seeking admission under s19. On its face, s20(1) leaves little room for a discretion based on the applicant's character or prior conduct. However, there is authority for the proposition that there is a remaining discretion. Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643; Re Tkacz; ex parte Tkacz [2006] WASC 315; (2006) 206 FLR 171.
Whatever the correct position may be under general principles relating to the obligation of candour at the time of an application for admission, the learned judge was correct in finding that the appellant had such an obligation and breached it for a reason that may not have been apparent to her because the court's file relating to the application for admission was not available to her."
Despite its reservation, the Tasmanian court recognised a duty of candour in applications under the mutual recognition legislation. However, I accept the clear authority from the Queensland and West Australian decisions that suitability for admission as a legal practitioner under the mutual recognition legislation is subject to the considerations of fitness and propriety which govern the admission of legal practitioners in the jurisdiction in which registration is sought. As Mr McLure pointed out, it would be absurd if the legislation were to require admission of a practitioner from another jurisdiction whose conduct was incompatible with the standard required of practitioners in this State.
Section 42(2) of the Legal Profession Act 2004 provides that, in considering whether or not an applicant for a local practising certificate is a fit and proper person to hold such a certificate, the Bar Council may take into account any "suitability matter" relating to the person … . Relevantly for present purposes, s 9 defines "suitability matters" to include:
"(1) Each of the following is a suitability matter in relation to a natural person:
(a) whether the person is currently of good fame and character,
…
(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i) the nature of the offence, and
(ii) how long ago the offence was committed, and
(iii) the person's age when the offence was committed,
…
(i) whether the person's right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country,
...
(m) whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner."
In New South Wales Bar Association v Murphy [2002] NSWCA 138, 55 NSWLR 23, Giles JA (with whom Spigelman CJ and Ipp AJA agreed) said at [113] (52):
"Refusal, cancellation or suspension of a practising certificate upon determination of unfitness to hold a practising certificate is not punitive of the legal practitioner. It is protective of the public in the same manner as removal from the roll. Fitness to hold a practising certificate is to be assessed having in mind the high standards required of legal practitioners in the practice of their profession. The standards are required because the relationship between legal practitioner and client, between legal practitioners, and between legal practitioner and court is one of trust in the performance of professional functions, and because there must be confidence in the public and in those engaged in the administration of justice that legal practitioners will properly perform those functions."
Section 48(3)(b) of the Legal Profession Act 2004 provides:
"(3) The Council must not grant a local practising certificate unless it is satisfied that the applicant:
…
(b) is a fit and proper person to hold the certificate."
Plainly enough, by that provision an applicant for a practising certificate bears the burden of establishing his or her fitness and propriety and, on an appeal under s 108, bears the burden of satisfying the court of that requirement: cf Barakat v Law Society of New South Wales (supra) at [123] - [134].
Mr Comeskey prepared written submissions but accepted that, as he had not gone into evidence, he could not press a number of assertions of fact made in them. Otherwise in those submissions, and in oral argument, he did the best he could with a difficult case.
He addressed his answers to the questions in his application for a practising certificate which the Bar Association asserted were false. As to his assertion that his current profession was a barrister in New Zealand (Q 2.3), he acknowledged that that was not "technically speaking" his current occupation, but he remained on the roll of barristers and solicitors in New Zealand and it appeared to him to be the appropriate profession to specify. It did not demonstrate any "intention to mislead or be fraudulent about it."
As to his assertion that he had never been convicted of any offence (Q 3.2), his written submissions were confused. They addressed a different question, directed specifically to conviction for a serious offence or a tax offence: Q 3.1, but the Bar Association does not rely upon his answer to that question. In oral argument he effectively repeated the comments he had made in response to Mr Selth's notice of 3 September 2014, set out at [27] above, as to the offences of failing to submit tax returns and the driving offence. As to his failure to file tax returns, he said that it was treated "as a minor offence in New Zealand, it is not evasion of tax or false tax returns." As to the driving offence, he said that it was the "first and only transgression" of its kind.
As to question 4.3, whether he had been, or was currently, the subject of any complaint lodged against him as a legal practitioner, he submitted that the question was clumsily expressed and that his answer in the negative was appropriate. It will be recalled that the question is, "Have you had, or is there currently, any complaint lodged against you as a legal practitioner, in any jurisdiction?" He argued that this amounted to two questions, one as to the past and one as to the present, and that if he had answered in the affirmative "confusion would have reigned." As he put it, an affirmative answer could have been "yes" to both propositions, or "yes" to only one of the propositions but which one?
The argument is without substance and can be disposed of immediately. The question is clearly expressed, enquiring whether the applicant is currently the subject of a complaint or has been in the past. If the answer is in the affirmative, the applicant is asked to provide details, which would disclose whether there is currently a complaint, or there has been in the past, or both. Mr Comeskey could have been in no doubt about the meaning of the question and the appropriate answer to it.
Not only did Mr Comeskey fail to disclose any complaint made against him in response to question 4.3 in his application, he also said nothing about the complaints other than those dealt with by the Disciplinary Tribunal in 2010 in response to Mr Selth's enquiry of 3 September 2014, referred to at [28] above. In his submissions he did not address at all the complaints dealt with by the Disciplinary Tribunal. As to those other complaints, he noted that some of them were quite old, that most of them had led to no action being taken against him and, in particular, that they had not affected his entitlement to practice in New Zealand. He rejected any suggestion that he was trying to conceal them, adding that the Bar Council was able to obtain information about them from the relevant Law Society in New Zealand.
He noted that the matter of "major significance", the decision of the Disciplinary Tribunal, had been disclosed to the Bar Association when the certificate of standing was furnished. As to his assertion in his notice under the Trans-Tasman Recognition Act that he was not subject to any special conditions in relation to his practice in New Zealand: [21] - [22] above, he argued that he did not have to disclose the undertakings required by the Disciplinary Tribunal because he had never returned to practice after the Tribunal's decision.
Generally, Mr Comeskey submitted that it was not open to find anything more than mistake on his part, and that there was nothing before me to establish "just blatant dishonesty."
All these arguments were met effectively by the submissions of Mr McLure. Insofar as Mr Comeskey's application for a practising certificate and his notice under the Trans-Tasman Mutual Recognition Act conveyed that he was practising as a barrister, Mr McLure emphasised that he was prohibited from practising as such under the relevant New Zealand legislation as he did not hold a practising certificate in that country: [22] above. Certainly, both documents would create the misleading impression that he was in practice as a barrister. It is in the light of his response to other enquiries that I would conclude that this was deliberate falsehood on his part.
I am satisfied that what he sought to convey, both to this Court and to the Bar Association, was that he was a current practitioner in New Zealand with no skeletons in his professional cupboard. His initial failure to disclose that he had been the subject of complaints in New Zealand, and of Disciplinary Tribunal proceedings, and that he had been convicted of offences in that country, cannot be explained by mistake. In any event, he has produced no evidence to establish any such mistake. His denials in respect of those matters were false to his knowledge. He acknowledged the Disciplinary Tribunal proceedings only because he had no choice, having been required to produce the certificate of standing from the New Zealand Law Society. He revealed his convictions three months after his application for a practising certificate, and then only in response to a notice from the Bar Association seeking information of that kind.
At no stage did he reveal the other eleven complaints to which I have referred. They came to light through documents produced on a subpoena directed to the New Zealand Law Society following an application by the Bar Association for leave under the Trans-Tasman Proceedings Act 2010 (C'th) to file and serve such a subpoena, which was granted by Davies J on 25 January 2015: Comeskey v New South Wales Bar Association [2015] NSWSC 12. The subpoena sought records concerning the fines and costs of $8,200 referred to in the certificate of standing (which are not of significance for present purposes) and records of any disciplinary complaints, charges and/or findings of misconduct made about Mr Comeskey (other than the matters dealt with by the Disciplinary Tribunal). He had refused to provide his consent to the Bar Association obtaining that material from the New Zealand Law Society, and opposed leave to file and serve the subpoena, on the basis of his contention that this is an appeal in the strict sense in which fresh material would be inadmissible.
Mr McLure challenged Mr Comeskey's characterisation of the offences of failing to lodge tax returns as "minor", emphasising the particular duty of legal practitioners to comply "with their obligations to meet the public revenue." There is force in that submission but, however the gravity of those offences and the driving offence might be assessed, it is Mr Comeskey's clear attempt to conceal them that is of primary significance for present purposes. The eleven complaints revealed by the subpoenaed material, collectively, are of concern but, again, it is of greater concern that he failed to disclose them. Clearly, the most serious complaints against him are those to which he pleaded guilty before the Disciplinary Tribunal, which reflect very poorly upon his probity. It is those complaints, together with his attempt to conceal them, which present the biggest barrier to his success in this appeal.
While the other eleven complaints and the convictions for offences are not to be ignored, it is primarily the combination of the matters dealt with in the Tribunal and the lack of candour demonstrated by his conduct in pursuing admission to practise in this State which lead me to the conclusion that Mr Comeskey has not discharged his onus of establishing that he is a fit and proper person to hold a practising certificate. I am fortified in that view by the fact that he did not file an affidavit and put himself to the test of cross-examination. The Bar Association's decision to refuse to issue him a practising certificate should be upheld.
The appeal is dismissed. If necessary, I shall hear the parties on costs.
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Decision last updated: 25 June 2015