Prominent New Zealand Barrister Struck Off the NSW Roll of Lawyers

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By Paul Gregoire and Ugur Nedim

Going back ten years ago, Christopher Comeskey was New Zealand’s most recognisable criminal defence lawyer. He drove a Porsche, rode a Harley-Davidson, collected antiques and was said to eat salmon five days a week.

The barrister rose to fame after negotiating the return of 96 war medals, which were stolen from the Waiouru Army Museum in 2007. He was involved in a series of other high-profile cases, including that of Bruce Emery who was convicted of manslaughter for the stabbing of a 15-year-old boy.

However, on 15 July 2010, the NZ Lawyers and Conveyancers Disciplinary Tribunal suspended Mr Comeskey from the roll of Barristers and Solicitors of the country’s High Court for nine-months. In the wake of that decision, the barrister announced he would not continue practising law after his suspension had expired.

Past transgressions

During the second day of hearings in the Auckland court, Mr Comeskey pleaded guilty to two counts of professional misconduct, and one of acting in a negligent manner in his professional capacity and thereby bringing disrepute to the legal profession.

The lawyer admitted misleading the NZ Court of Appeal, as well as having two junior barristers represent a client, when they were not authorised to do so by the Legal Services Agency, and then overcharging the legal aid service.

Along with the suspension, Mr Comeskey was ordered to pay the NZ Law Society’s legal costs, as well as two-thirds of the tribunal’s costs.

It was not the first time Mr Comeskey’s conduct had been scrutinised. Between 2000 and 2012, eleven other complaints had been made against him.

And prior to becoming a lawyer in 1996, he had pleaded guilty to six offences for failing to submit tax returns, while in 2004, he pleaded guilty to a drink driving charge.

Greener pastures over the ditch

Mr Comeskey subsequently moved to Australia, and on 13 June 2014, applied to the NSW Supreme Court for admission as a legal practitioner under the provisions of part 3 of the Trans-Tasman Mutual Recognition Act 1997 (Cth).

The Act sets out the mutual recognition principle that is established between Australia and New Zealand, allowing for individuals registered for an occupation in New Zealand to carry on the equivalent job in Australia.

Section 18 of the Act requires an applicant to submit a written notice disclosing whether any disciplinary proceedings, including whether their registration had been cancelled or suspended, or they were otherwise prohibited from carrying on the occupation.

Slight indiscretions

On the application to the NSW Supreme Court, Mr Comeskey stated that none of the section 18 provisions applied to him. He was the admitted as a NSW lawyer on 24 June 2014, which took effect from the date the application was lodged.

Following his admission, Comeskey applied to the NSW Bar Association for a practising certificate. On his application, he answered ‘no’ to questions regarding whether he’d ever been convicted of an offence or was the subject of complaints as a legal practitioner.

At the request of the Bar Association, Mr Comeskey later submitted a certificate of standing from the NZ Law Society that stated he was entitled to apply for a practising certificate in New Zealand. The certificate detailed the disciplinary actions that had been taken against him.

The Council of the Bar Association then resolved to refuse Mr Comeskey’s application for a local practising certificate.

Declarations sought

The NSW Supreme Court Prothonotary – who is the principal clerk of the court – took the unusual step of seeking declarations regarding Mr Comeskey’s conduct in the NSW Court of Appeal (NSWCA) in May last year.

The chief clerk requested Comeskey be declared guilty of professional misconduct, not a person of good fame and character and that he was not a fit and proper person to remain on the roll of local lawyers. She also sought that he be struck off the roll.

Mr Comeskey did not appear in court. However, he indicated in an email that he did not oppose his name being removed from the roll.

According to the Prothonotary, Mr Comeskey had breached his duty of candour as a lawyer by failing to disclose his suspension on the Supreme Court application, as well as by providing false answers on his Bar Association application.

The court findings

NSWCA Justice Robert Macfarlan found that the non-disclosures and misstatements weren’t “due to inadvertence on the respondent’s part, but to dishonesty,” as it was inconceivable that the disciplinary actions taken against Comeskey had slipped his mind whilst filling out the applications.

And as Mr Comeskey had been a practising lawyer for close to 15 years in New Zealand, the justice reasoned that he must have been well aware of his duty to disclose such matters.

His Honour found that the seriousness of his conduct was “to some extent lessened,” as they were statements the Prothonotary was not alleging to be “false or misleading.” However, this did not excuse the conduct.

“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,” Justice Macfarlan made clear. “Nothing in the evidence suggests that the position is any different now.”

In relation to professional misconduct, his Honour ruled that Comeskey was not guilty in regard to the non-disclosures, but was guilty for lying upon his practising certificate application, as he had already been admitted as a legal professional in NSW.

A history of non-payment

On 16 February this year, Justice Macfarlan declared Mr Comeskey guilty of professional misconduct and that he was not a person of good fame or character. As he was not a fit and proper person, the court ordered his name removed from the roll of local Lawyers.

NSWCA Justice John Basten and Acting Justice Carolyn Simpson agreed with the ruling.

Mr Comeskey was also ordered to pay the Prothonotary’s cost of the proceedings. However, the chief clerk should not hold her breath for the payment, as the ex-lawyer was yet to pay any of the court costs ordered against him across the ditch.

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