Struck Off For Blowing the Whistle

Introduction

On [date] I was struck off the Supreme Court Roll of Australian Legal Practitioners for blowing the whistle on corruption in Victoria’s judicial system. This action by the Supreme Court of Victoria was just the latest example of corruption being “laundered” through the Victoria’s highest court. I use the term “corruption laundering” to describe the process whereby corrupt public officers use the judicial system to remove the stain of corruption from their misconduct.

What follows is the story of my being struck off. It is also the story of manipulation and dishonesty on the part of regulators and the laundering of their corrupt conduct through the judicial system of Victoria.

[For an examination of the broad concept of "corruption" and its application to the
conduct described in this article, click on the the blue "corruption" hyperlink.]

• First, an observation by a corrupt VCAT Member
• A telephone call from the Law Institute of Victoria
• A letter from the Victorian Legal Services Commissioner
• Was Ms Jenner’s phone call a ruse?
• The Law Institute of Victoria turns on its own member
• Delegated to an “independent” party?
• An inconvenient outcome
• The Law Institute rejects Judge Gray’s recommendation
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First, an observation by a corrupt VCAT Member

“For the past 15 years Mr Mericka has purported to be a “whistleblower”. He has rejoiced at blowing the whistle at “corrupt” Supreme Court justices, “corrupt” regulators, “corrupt” licensing authorities, “corrupt” public servants and “corrupt” VCAT members. Despite all his whistle blowing, Mr Mericka knows that no court, regulator, police agency, ombudsman, corruption commission or other authority has taken his claims seriously. The significance of that fact appears to be lost on Mr. Mericka.”

(Corrupt former VCAT Member Blair Ussher, shortly before his resignation as a VCAT Member)

VCAT Member Ussher’s observations are an appropriate opening to this article. He has identified not only the nub of the corruption problem (a whistleblower being ignored by government appointed authorities), but also the impugned authorities themselves. Mr Ussher’s observation is emblematic of the approach taken by these authorities – being determined to prevent, avoid and suppress any investigation into the corruption I have identified over the past two decades. Mr Ussher is no longer a VCAT Member; he managed to avoid a corruption investigation by stepping down as a VCAT Member shortly after I had lodged a formal corruption complaint against him. Just another method by which the authorities protect their own. (See Investigation Report Judicial Commission of Victoria)

As at 13th October 2024 none of my complaints has been properly investigated, yet I was struck off the Supreme Court Roll as an Australian Legal Practitioner simply for blowing the whistle and at all times telling the truth.

What follows is a timeline of the events leading to my striking off.

A telephone call from the Law Institute of Victoria

It all started with a surprise telephone call from my professional association, the Law Institute of Victoria on 19 April, 2021, just a few weeks after I had applied to renew my Practising Certificate in response to the invitation sent to me by the Victorian Legal Services Commissioner.

(Renewing of a Practising Certificate is ordinarily a straightforward process, as described in this email advising that my renewal application had been successfully submitted and that I could expect to receive my Practising Certificate in a few weeks. (See the email of 29 March, 2021 confirming successful submission.)

I had been a member of the Law Institute of Victoria for about 30 years and regarded it as my union, the body supposedly representing my interests as a lawyer. The Law Institute of Victoria also has a “Law Institute of Victoria Whistleblower Policy“, but I don’t think it’s meant to be taken seriously, for reasons that will become apparent.)

The caller identified herself as Olivia Jenner, and explained that she was calling to obtain “member feedback” as to how members perceived the Law Institute of Victoria. I can still recall the first words of my response: “Well frankly Olivia, the LIV’s service sucks. The only benefit I’ve ever derived from my membership is the Law Institute Journal.” Olivia laughed, saying, “Oh dear, I think we’ll have to do better than that, can you give me more detail?“

I then unloaded years’ of pent-up frustration with the Law Institute of Victoria and its failure to support me regarding corruption in the office of the Legal Services Board and Commissioner, corruption which had also infiltrated the Supreme Court of Victoria. I explained to Ms Jenner that I had “blown the whistle” on corrupt conduct in the offices of Consumer Affairs Victoria and the Legal Services Board and Commissioner, but when I sought support from Law Institute of Victoria in having the corrupt conduct investigated I was ignored.

To my surprise, Ms Jenner seemed genuinely concerned about what I had put to her, and she assured me that she would pursue the matter. I gave Ms Jenner the details of my lawyer, Mr Maurice Lynn, so that she and her supervisors could cross-check with Mr Lynn regarding the matters I had described to her, and perhaps arrange for an interview so that full details and documents could be provided and an investigation strategy prepared.

Ms Jenner was quite convincing in her assurances that the Law Institute of Victoria would assist me as a member of long-standing. She even went so far as to confirm this to me by email later that day stating, “I have escalated this up to my direct managers as we discussed and will receive contact from them shortly.” (See Ms Jenner’s email sent at 5.00 p.m. on Monday 19 April, 2021.)

I waited until the end of the week, and then until the end of the month, but I heard nothing further from Ms Jenner or anyone else from the Law Institute of Victoria. I followed up with an email to Ms Jenner at 10.05 a.m. on Wednesday 19 May, 2021, in which I requested a timeframe for discussion of “the very serious matters” I had raised with her in our telephone conversation of 19 April, 2021.

A letter from the Victorian Legal Services Commissioner

Just six days after following up with Ms Jenner I received a letter from the Victorian Legal Services Commissioner, Ms Fiona McLeay. McLeay’s letter indicated that she had decided to withhold my Practising Certificate because she had decided that I was not a ‘fit and proper person’ to practise as a legal practitioner. No reasons were given for her having made this decision. (See Letter from Fiona McLeay dated 26 May, 2021)

(At this stage I should mention that Ms McLeay had been humiliated when I wrote to her and put to her a set of corruption allegations that implicated her and a number of her staff in criminal conduct. (See my Letter to Legal Services Commissioner Fiona McLeay dated 16 September, 2019). As a consequence of my writing to her, McLeay immediately issued my Practising Certificate and later waived $80,000 in legal costs awarded to her after one of her staff, Luke Priday, had committed perjury and perverted the course of justice in a prosecution McLeay had brought against me (see my posting at “Fiona McLeay – Corrupt Legal Services Commissioner“).

I make mention of this because my immediate reaction to McLeay’s letter of 26 May, 2021 was that it was an attempt by McLeay to punish me for exposing her corrupt conduct.)

McLeay gave no reason for her decision. However, it was quite clear to me that McLeay was hoping that she might be able to find some way of retrospectively justifying her decision by initiating an investigation.

While I had become used to McLeay’s underhanded tactics in attempting to stop my whistleblowing on corruption in her office, I was quite shocked when I read the words, “The Victorian Legal Services Board has delegated the functions pursuant to sections 44 and 45 of the Uniform Law, amongst others, as they related to you, to the Law Institute of Victoria.“

Was Ms Jenner’s phone call a ruse?

My head was spinning after reading the letter from Fiona McLeay. I had asked my professional association, the Law Institute of Victoria, to support me in my lodging of corruption complaints against Fiona McLeay and others with IBAC. Ms Jenner, on behalf of the Law Institute of Victoria had told me, in effect, that the Law Institute of Victoria had accepted my request and that the matter would be “escalated”.

It was because of Ms Jenner’s seemingly friendly and trustworthy manner that I disclosed the history of my dealings with Fiona McLeay and her office, as well as my plans for lodging a formal complaint with IBAC. I had also told Ms Jenner that I needed the support of the Law Institute of Victoria when lodging my complaint, because I knew that when an individual lodges a formal complaint the matter is invariably referred to the party against whom the complaint has been made – as happened when I lodged a corruption complaint against Consumer Affairs Director Claire Noone. In addition, my experience in “blowing the whistle” was exactly as VCAT Member Blair Ussher has described in the quote at the top of this page.

Now my own professional association had been engaged by Fiona McLeay and her office to work against me!

My immediate suspicion was that the Law Institute of Victoria regarded my whistleblowing as a threat to the the legal profession generally, and had advised the Victorian Legal Services Commissioner to take action against me – to silence me by forcing me out of the legal profession.

I also suspected that Ms Jenner’s “out of the blue” telephone call to me on 19 April, 2021 was perhaps a ruse; Fiona McLeay using my professional association to find out my mindset and to head off any problems my whistleblowing might create. I put this possibility to Ms Jenner directly in my email to Ms Jenner dated 27 May, 2021.

I received no reply from Ms Jenner. Instead, Mr Duncan Pittard stepped in with his strange take on the situation (see email from Duncan Pittard dated 27 May, 2021). In short, Mr Pittard twisted the gist of my conversation with Ms Jenner to suggest that I was calling upon the Law Institute of Victoria to initiate a complaint to IBAC, when in fact I had simply asked for support in my lodging of a complaint.

Mr Pittard also claimed that I could not expect any assistance from the Law Institute of Victoria because “…we have not been directly impacted nor are we aware of the issues surrounding your claims.“

What makes this last statement from Mr Pittard particularly bizarre is the fact that, equally, the Law Institute of Victoria could have said the same thing to Fiona McLeay when she asked them to work against me.

Obviously, Mr Pittard and the Law Institute of Victoria could become fully aware of the issues surrounding my claims simply by asking me for further details and supporting material. In doing so it would have become quite clear that the Law Institute of Victoria was directly impacted by the matter because one of their long-term, fully paid-up members was in deep trouble as the victim of a corrupt Victorian Legal Services Commissioner – something that impacts the Law Institute of Victoria and ALL of its legal practitioner members.

Mr Pittard finished his email with the rather ironic works, “I thank you once again for your feedback and wish you well.“

The Law Institute of Victoria turns on its own member

When asked by Fiona McLeay to accept her delegation in pursuing me in relation to her yet unstated pretext for withholding my Practising Certificate, the Law Institute of Victoria could quite properly have replied something to the effect of:

“Sorry, but our member has already sought our assistance in dealing with serious allegations he has made against your office and he is entitled to our support and assistance in pursuing the matter.”

They could have gone further by informing Ms McLeay that, where the Legal Services Commissioner seeks to delegate authority to the Law Institute of Victoria involving one of the Law Institute’s members, the “cab rank” principle should apply. In other words, the member, having approached the Law Institute of Victoria first, has priority over the Legal Services Commissioner.

Instead, the Law Institute of Victoria slipped into the guise of the Victorian Legal Services Commissioner and came after me.

I attempted to reason along these lines with Mr Pittard (see my email to Duncan Pittard dated 27 May, 2021), but Mr Pittard’s reply later that day (see final email from Duncan Pittard) made it quite clear that the Law Institute of Victoria had already fused itself to Fiona McLeay and the office of the Victorian Legal Services Commissioner.

Delegated to an “independent” party?

Ian Gray’s appointment as an admission of bias

Mr Pittard’s reply email to me was something of an admission regarding the inability of Fiona McLeay and her office and her proxy, the Law Institute of Victoria, to be fair or open-minded in the process of determining a pretext for the withholding of my Practising Certificate. Remember, nothing had ever been put to me as a proper basis for the questioning of my status as a “fit and proper person” to continue functioning as an Australian Legal Practitioner. At this stage I was completely in the dark as to why my Practising Certificate was being withheld, why the Law Institute of Victoria had terminated its offer of assisting me, and why the matter had now been further delegated to an “independent external party“.

The search for a pretext

It was immediately apparent that the appointment of Judge Gray as an “independent” investigator was a nonsense, as his investigation would inevitably become a search for a pretext for the initial withholding of my Practising Certificate. At this stage there had been no warning that my Practising Certificate would be withheld, and no reason had been given for its being withheld – so it was now up to Judge Gray to find a reason that would justify both the withholding and the initiating of an investigation.

I quickly realised that my Practising Certificate was being used as a bargaining chip. Fiona McLeay wanted me to stop blowing the whistle on corruption in her office, in return for which she would renew my Practising Certificate. Judge Gray was merely a stooge, inserted into the process to give it a veneer of legitimacy. Indeed, when Judge Gray recommended that my Practising Certificate should be renewed, Fiona McLeay and the Law Institute of Victoria jettisoned Judge Gray and his inconvenient findings in preference for their pre-determined outcome.

(A full examination of Judge Ian Gray’s “investigation” can be viewed at “Judge Ian Gray – Flawed Investigation“.)

An inconvenient outcome

From the outset of his investigation Judge Gray showed no interest at all in whether or not my allegations were true. As Judge Gray put it in his report to the Law Institute of Victoria:

“It is not within the scope of this review to consider or comment upon the merits of any of his allegations.”

Thus, according to Judge Gray (and presumably those who had appointed him), the only matter under consideration was whether or not it is poor form for a legal practitioner to blow the whistle on corruption within the legal profession and its regulators. Judge Gray underscores this with the following statement:

“Allegations of this nature are obviously very serious, and potentially damaging. Whether they are unfounded, or well-founded, is not the ultimate point. The focus should be on his method of ventilating them.”

In his findings Judge Gray relied heavily on his own view that a lawyer should blow the whistle in public when there are more discreet avenues of complaint available; this despite my having explained at length the difficulties as described in Mr Ussher’s quote at the beginning of this posting, the expiration of time limits, and examples of situations where formal complaints tend to be dealt with by the very parties against whom the complaints are made.

Ignoring Section 57(a) IBAC Act and Code of Conduct

However, most disappointing example of bias in Judge Gray’s findings was his exclusion of my reference to Section 57(1) of the IBAC Act from his report. I had explained to Judge Gray that the Victorian Legal Services Commissioner (VLSC), and other regulators, had a statutory obligation to report suspected corruption to IBAC. The following reference to the statutory obligation to report is taken from the transcript of my interview with Judge Gray:

“When the VLSC, who has a positive obligation to report suspected corruption to IBAC, fails to do that and wants me to do that, that causes me to suspect that there’s a reason why she’s refusing to do that and wanting me to do it. I think  it comes back to the problem that I have here, as a complainant, with the time limit and the ease with which a complaint can be dismissed. Whereas if she was to refer it to IBAC, they would have to take notice, they would have to act on it. And even if she didn’t draw their attention to it as a complaint, they would open an own motion investigation. So  I suppose, to put it in basic terms, when the legal services commissioner told me to report it to IBAC instead of doing it herself, I could smell a rat.

I’d also add, too, that to me it’s just common sense that if she really wanted it to be investigated she would have initiated that investigation. And that the reason I smell a rat is because I felt that she knew more about the processes than I did and it would be advantageous to her if I was forced to report it ahead of her.”

Judge Gray ignored the statutory obligation of the Victorian Legal Services Commissioner entirely. Instead, in reply, he put to me the following:

“If you’re correct about her obligation, what about the proposition, and this is a hypothetical, but you both have a concurrent obligation to report it, don’t you?”

I submit that a truly unbiased and independent investigator would have made mention of the fact that the person withholding my Practising Certificate for having “blown the whistle” on corruption in her office had deliberately and unlawfully failed to discharge her duty pursuant to Section 57(1) of the IBAC Act, as well as the Code of Conduct for Victorian Public Sector Employees, which states at 3.6:

“3.6 Reporting Unethical Behaviour

Public sector employees comply with legislation, policies and lawful instructions in the performance of their work. Public sector employees report to an appropriate authority workplace behaviour that violates any law, rule or regulation, or represents corrupt conduct… Public sector employers inform their employees of their rights and responsibilities regarding the making of such reports.”

Judge Gray knew at all times that a statutory obligation and a published code of conduct created obligations for Fiona McLeay and her acolytes that were far more important than any notional obligation on my part to refrain from blowing the whistle. I submit that Judge Gray disgraced himself by deliberately ignoring the responsibilities of Fiona McLeay, the Law Institute of Victoria and the individuals associated with his “investigation” and focusing solely on my public disclosures of corruption.

Found to be “fit and proper”

Despite the inherent bias and numerous other shortcomings in Judge Gray’s “investigation” he nonetheless found that I was a “fit and proper” person. Judge  Gray concluded his investigation as follows:

“However, it is important to remember that the conduct in question, unacceptable as it is for a legal practitioner, falls within a narrow ambit. No other conduct,  and no complaint or reputational issues, are to be weighed in the balance. Ultimately the impugned conduct should not, of itself, be necessarily fatal to Mr Mericka’s prospects of renewing his Practicing Certificate. For the purposes of the “good fame and character” test, I would describe his character as flawed, but not so badly flawed that he fails the test. If he is prepared to remove the corruption allegations from his website and refer them to IBAC or the Ombudsman for investigation then in my opinion his PC should be renewed. These matters can be the subject of conditions.”

I felt that Judge Gray wanted to have an “each way bet”, determining that I was entitled to have my Practising Certificate renewed, but offering Fiona McLeay a consolation prize in the form of a recommendation that I should remove my allegations from public view. As absurd as it sounds, I would be “fit and proper” if I stopped publishing true allegations of corrupt conduct, but I would not be “fit and proper” if I allowed these true and accurate allegations to remain on public display. I think it’s understandable that I felt that my Practising Certificate was being used a means of blackmailing me when there were no legal options available by way of defamation or prosecution.

Judge Gray creates an obligation to report corruption to IBAC

But Judge Gray went a little further; he recommended that my Practising Certificate should be made subject to a condition. Under the heading, “Imposing conditions/undertakings” was the following:

“Any practising certificate should be subject to the following condition:

• • • That Mr Mericka take down from his website the allegations of corruption
      against the VLSB and Commissioner and refer them to IBAC or the
      Victorian Ombudsman for investigation.”

Judge Gray’s big blunder

What Judge Gray didn’t seem to realise was that the last thing Victorian Legal Services Commissioner Fiona McLeay wanted was for allegations of corruption to be referred to IBAC as part of a formal obligation. It was this issue, and this alone, that led to the loss of my Practising Certificate.

The Law Institute rejects Judge Gray’s recommendation

The Law Institute of Victoria had appointed Judge Ian Gray as an “independent” investigator. This implies that the the Law Institute of Victoria understood that bias was an issue and that the process needed to appear to be fair and transparent. I believe that the appointing of Judge Gray as “independent investigator” was also a strategy, the purpose of which was to reduce the likelihood of my complaining that the investigation procedure was unfair. Nevertheless, when Judge Gray found that I was a “fit and proper” person, and recommended that my Practising Certificate should be renewed the façade of procedural fairness quickly fell away.

 

 

 

 

 

Email from Peter Docherty et al and my response – 20 September, 2021

 

On Friday 22 October I received an email from Mr Peter Docherty stating, “The LIV Council has made a final decision to refuse your application to renew your Practising Certificate.” The email also stated that the delegation by the Victorian Legal Services Commissioner to the Law Institute of Victoria had ended, and that the matter was now being transferred back to the office of the Victorian Legal Services Commissioner. To summarise:

• • • Fiona McLeay, having been accused of corruption, had refused to renew my Practising Certificate.
    • No reason has ever given for the initial refusal to renew my Practising Certificate.
    • Having refused to renew my Practising Certificate, Fiona McLeay decided to retrospectively conduct an investigation.
    • As she had been accused by me of corruption, Fiona McLeay delegated the investigation to the Law Institute of Victoria.
    • As the Law Institute of Victoria had already offered to assist me against Fiona McLeay, its independence was compromised.
    • The Law Institute of Victoria appointed Judge Gray as “independent” investigator.
    • Judge Gray found that I was a “fit and proper” person to hold a Practising Certificate.
    • Judge Gary recommended that my corruption allegations should be reported to IBAC.
    • The Law Institute of Victoria accepted that I was a “fit and proper” person.
    • The Law Institute of Victoria did not want my corruption allegations reported to IBAC.
    • The Law Institute of Victoria demanded removal of my corruption allegations from public view,
    • The Law Institute of Victoria refused to allow for my corruption allegations to be reported to IBAC.
    • I told the Law Institute of Victoria that it had to accept Judge Gray’s findings in full.
    • The Law Institute of Victoria went against Judge Gray’s findings and declared that I was not a “fit and proper” person.

Thus, the Law Institute of  Victoria chose to ignore Judge Gray’s recommendation to renew my Practising Certificate, instead relying on the premise that although I had accepted the independent investigator’s recommendation, I had not specifically consented to just a part of the recommendation that the Law Institute of Victoria committee had cherry picked in order to prevent my corruption allegations being investigated by IBAC. In other words, the Law Institute of Victoria had decided that I was not a “fit and proper” person merely because I had consented to Judge Gray’s recommended conditions in full but not partial!

I had no option but to appeal against the absurd decision.

(You can read Peter Docherty’s email advising that my Practising Certificate would not be renewed, together with my reply in which I set out the full circumstances of the sham investigation and unfair process via the following link: Email from Peter Docherty advising final decision and my response – 22 October, 2021)

 

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