Comeskey v The New South Wales Bar Association [2015] NSWSC 824

Comeskey v The New South Wales Bar Association [2015] NSWSC 824

The plaintiff did not discharge his onus of establishing that he was a fit and proper person to hold a local practising certificate. His New Zealand Disciplinary Tribunal misconduct matters reflected poorly on his probity, and his false or misleading statements and failures to disclose disciplinary proceedings, complaints and convictions in pursuing admission and a practising certificate in New South Wales demonstrated a lack of candour incompatible with the standards required of legal practitioners. The appeal was a hearing de novo, and the absence of affidavit evidence from the plaintiff fortified the conclusion that the Bar Association's refusal should be upheld.

Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Appeal Under S 108 of the Legal Profession Act 2004 Against Refusal to Grant a Local Practising Certificate / Principal Judgment
Outcome
Appeal dismissed
Legal Topics
['local Practising Certificate' 'fit and Proper Person' 'duty of Candour' 'trans Tasman Mutual Recognition Act Registration' 'professional Misconduct and Disciplinary Complaints' 'hearing De Novo on Appeal']
['legal Practitioners' 'administrative Law' 'mutual Recognition'] ['local Practising Certificate' 'fit and Proper Person' 'duty of Candour' 'trans Tasman Mutual Recognition Act Registration' 'professional Misconduct and Disciplinary Complaints' 'hearing De Novo on Appeal']

Case Brief

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Procedural Posture

Appeal Under S 108 of the Legal Profession Act 2004 Against Refusal to Grant a Local Practising Certificate / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was a fit and proper person to hold a local practising certificate.' 'Whether an appeal under s 108 of the Legal Profession Act 2004 from refusal of a practising certificate is a hearing de novo rather than an appeal in the strict sense.' 'Whether the plaintiff failed to disclose disciplinary proceedings, complaints and convictions in New Zealand in his applications for admission and for a practising certificate.' "Whether applications under the Trans-Tasman Mutual Recognition Act 1997 (C'th) remain subject to a duty of candour and considerations of fitness and propriety."]

Ratio Decidendi

The plaintiff did not discharge his onus of establishing that he was a fit and proper person to hold a local practising certificate. His New Zealand Disciplinary Tribunal misconduct matters reflected poorly on his probity, and his false or misleading statements and failures to disclose disciplinary proceedings, complaints and convictions in pursuing admission and a practising certificate in New South Wales demonstrated a lack of candour incompatible with the standards required of legal practitioners. The appeal was a hearing de novo, and the absence of affidavit evidence from the plaintiff fortified the conclusion that the Bar Association's refusal should be upheld.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']