Wellington, Nov 16 NZPA - High-profile Auckland lawyer Chris Comeskey has failed to have a Court of Appeal judgment critical of him recalled.

Rejection of his application has opened the way for the Law Society to resume disciplinary action against him.

Its hearing was adjourned until after Mr Comeskey argued to the Court of Appeal that criticisms of him in the judgment were unjustified.

The society had alleged Mr Comeskey was in breach of his "overriding duty to the court" and of the professional conduct rules for barristers and solicitors.

Appeal Court criticisms were made in a decision on Mr Comeskey's client Xiao Hui Huang, whose 12-year sentence imposed in 2007 he had appealed.

Huang was found guilty of having methamphetamine for supply and conspiring to supply it, after Customs and police found 8kg of drugs, estimated to be worth about $8 million.

The Appeal Court rejected Mr Comeskey's submissions, saying "optimistic would be a charitable description" of the last of them.

"Misleading would perhaps be a more accurate one.

"Need we mention the importance of counsel accurately stating the position, and being absolutely candid and forthright with the court?"

In his bid to have the decision recalled, Mr Comeskey's lawyer, Russell Fairbrother, argued optimism was not a bad thing in an adversorial system.

Further, the judicial comments were a breach of natural justice as Mr Comeskey did not know the comments were going to be made, and had had no chance to respond to them, or defend himself.

But the Appeal Court has now said it could not be expected to warn counsel before it made comment on arguments presented in court,

"If an argument is hopeless, then the Court can not be expected to mince words. Neither can it seriously be suggested that the Court should delay judgment to rehear arguments it has already decided are without merit."

It was unfortunate the term "misleading" was used to describe Mr Comeskey's sentencing submissions, the court accepted.

He had not misled the court as to various sentences imposed in a related drugs case, the court said.

Rather, he had tried to use that case to support the proposition that five years was an appropriate sentencing starting point for Huang, who had drugs worth $8 million in her possession.

"It is not appropriate for counsel to purport to rely on decisions which do not support the propositions argued for," the court said.

As a result of the Huang decision, Mr Comeskey was charged by the Law Society .

In May, Mr Fairbrother successfully had the disciplinary hearing adjourned, saying he had applied to the Court of Appeal to have the judgment recalled.

John Billington, QC, acting on behalf of the Law Society, opposed the adjournment.

But he conceded that if the Court of Appeal judgment was withdrawn, the Law Society "will have to review whether there is a proper basis to proceed with the charge".

Mr Fairbrother said if the application to recall the judgment failed, he would seek a judicial review.

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