Prothonotary v Comeskey

1. [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. [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:

3. [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:

4. [4]

   Compliance with this regime has the following consequence:

5. [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:

6. [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. [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

1. [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”?

1. [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.

2. [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. [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:

4. [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. [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]

6. [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.

7. [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]

8. [16]

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

9. [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.

10. [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]

11. [19]

    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.

12. [20]

    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.

13. [21]

    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.

14. [22]

    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]

(b) nature of power

1. [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:

2. [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]

3. [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:

4. [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

1. [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]

2. [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]

3. [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]

4. [30]

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

5. [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

1. [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.

2. [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]

3. [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.

4. [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.

5. [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

1. [37]

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

2. [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.

3. [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.

4. [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).

5. [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:

THE APPLICANT’S SUMMONS

1. [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:

2. [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

1. [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]).

2. [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.

3. [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.

4. [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:

5. [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.

6. [49]

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

7. [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. [51]

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

9. [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:

10. [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”.

11. [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:

12. [55]

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

DETERMINATION

1. [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.

2. [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.

3. [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.

4. [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.

5. [60]

   The gravity of his conduct must then be assessed.

6. [61]

   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.

7. [62]

   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.

8. [63]

   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”.

9. [64]

   For these reasons, I propose the following orders:

   1. (1)

      Declare that Christopher Patrick Comeskey is guilty of professional misconduct.

   2. (2)

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

   3. (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. (4)

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

   5. (5)

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

10. [65]

    SIMPSON JA: I agree with Macfarlan JA.