Struck Off For Blowing the Whistle

Introduction

(THIS IS A WORK IN PROGRESS AND WILL BE UPDATED FROM TIME TO TIME AS MY RESEARCH AND EVIDENCE-GATHERING ALLOWS)

On 4 December, 2021 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 22nd January 2025 none of my complaints has been 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 words, “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.

On 28 May, 2021 I received a letter from the Law Institute of Victoria, formally confirming that my own professional association was now acting as proxy for the subject of my corruption complaint, Fiona McLeay and the Victorian Legal Services Board. The letter was unsigned, but it had been emailed to me by Mr. Peter Peter Docherty, Head of Professional Standards and Quality Assurance for the Law Institute of Victoria (See the Law Institute of Victoria letter dated 28 May, 2021.)

Despite Mr Docherty’s letter stating that, “the LIV Council determined it was appropriate to engage an independent investigator to undertake an investigation“, the basis for this determination was never disclosed.

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 (see below), Fiona McLeay and the Law Institute of Victoria jettisoned Judge Gray and his inconvenient findings in preference for their pre-determined outcome.

Elephant in the room – the truth

I attended at the offices of the Law Institute of Victoria on 18 June, 2021 for interrogation by the “independent” investigator, Judge Ian Gray. Despite Judge Gray claiming that the process would be “fair and thorough”, one crucial element was avoided – the truth of my allegations.

Time and time again during the interrogation I told Judge Gray that there had never been any investigation into the corruption allegations I had made, and that an investigation would confirm the truth of each and every allegation made. What should have been obvious to Judge Gray was that an investigation to determine the truth or otherwise of my allegations should have been conducted before his interrogation, as a finding either way would have rendered his involvement utterly unnecessary. If my allegation were confirmed as true, then a full corruption investigation would ensue. If my allegations were found to be untrue, then I would properly be charged with serious offences and sued for defamation.

Judge Gray certainly did not allow truth to un-muddy the waters.

A full transcript of the interrogation can be viewed at Document titled “LIV Investigation Mtg 18.06.2021 @ 10am“.

Judge Gray’s culpability

I believe that it was Judge Gray’s failure to take the obvious and common-sense approach of having the veracity of my corruption allegations checked by way of an independent investigation, before he interrogated me, that renders him culpable.

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

My letter to the President of the Law Institute of Victoria

I could see that Judge Gray’s “investigation” was a sham and that all involved were attempting to avoid an investigation into the truth of my corruption allegations. After a back-and-forth email conversation with Mr Docherty regarding the fairness of the process, I told Mr Docherty that I wanted to lodge a complaint. Mr Docherty advised me that the most appropriate avenue of complaint would be for me to write a letter to the President of the Law Institute of Victoria, and so I did as he suggested.

Why did I go to the trouble of writing to someone whom I knew was just as biased and corrupt as the Victorian Legal Services Commissioner herself? Partly in the vague hope that Tania Wolff might realise how wrong she and the Law Institute of Victoria had been in accepting the Legal Services Commissioner’s delegation, and partly because I wanted to ensure that the whole rotten process had been captured in writing, put directly to Ms Wolff and the Law Institute Council, and would form part of the written record for future reference.

See my very comprehensive letter to Ms Tania Wolff dated 4 July, 2021, which was also emailed to Mr Peter Docherty, Judge Ian Gray and Ms Fiona McLeay.  (Note there is a typo at paragraph 19 of the letter, where the date 16 September, 2021 should read 16 September 2020.)

Unhelpful responses from the President of the Law Institute of Victoria

In a letter dated 23 July, 2021 Ms Tania Wolff acknowledged my letter of 4 July, 2021 but stood by actions of the Law Institute. The only concession she made was the following apology:

“I accept that the investigation process was not clearly communicated to you at its commencement, and I apologise that this did not occur.”

and

“I also accept that the matters of concern should have been identified to you when you were notified of the delegation and the investigation.”

I was not prepared to let Ms Wolff of the hook so easily. I had made it quite clear to Ms Wolff that I was extremely upset over the Law Institute of Victoria having initially contacted me as a member from whom direct and personal information was sought, agreeing to support me in my lodging of corruption complaints against the Victorian Legal Services Commissioner, and then dumping me in order to act on behalf of the person against whom I had accused of corruption.

In my email of 27 July, 2021 I asked Ms Wolff,

“Why did the LIV decide to accept the delegation from the VLSC when I had already requested that the LIV should support my lodging of a corruption complaint against the VLSC with IBAC?

I ask this question because I had already approached the LIV as my professional association and asked for support in lodging a corruption complaint against the VLSC. The LIV’s response, via Mr Duncan Pittard, was, “I understand you have asked the LIV to consider initiating a complaint to IBAC to support your allegations, however we are not in a position to do this, as we have not been directly impacted nor are we aware of the issues surrounding your claims.”

I put it to you that firstly, the LIV was indeed impacted by my complaints because it is the professional association representing legal practitioners who may be affected by the corrupt conduct of the VLSC, and secondly, not being aware of the relevant issues could have easily been remedied by further questions. Indeed, the second part of this rather facile excuse is more an indication of not wanting to know, rather than an inability to obtain information.

But it doesn’t end there. The LIV, with full knowledge that I was seeking to have the VLSC investigated for corruption, and having withheld assistance as per Mr Pittard’s response to my request, then decided to accept the VLSC’s delegation to pursue me as not being a fit a proper person.

So, let me ask you once again,

“Why did the LIV decide to accept the delegation from the VLSC when I had already requested that the LIV should support my lodging of a corruption complaint against the VLSC?”

Ms Wolff’s response was both simple and unhelpful:

“Dear Mr Mericka,

The LIV will not disclose or comment on its decision-making process in accepting the delegation.”

I reiterate that I was a long-term, fully paid-up member of the Law Institute of Victoria. I had been betrayed by my professional association in a most despicable manner, but the process by which this occurred was a secret.

An inconvenient outcome

The Law Institute of Victoria and its overseer, the Victorian Legal Services Commissioner, were not at all pleased with the outcome of Judge Gray’s findings. It was obvious that the investigation was supposed to vindicate the Legal Services Commissioner in her withholding of my practising certificate, asserting that I was not a “fit and proper” person to continue as an Australian Legal Practitioner, and then launching an investigation to confirm that I was not “fit and proper”. Judge Gray was supposed to conclude that I was not “fit and proper” and that my practising certificate should not be renewed. So what had gone wrong?

A biased investigation

As anticipated, the investigation was indeed heavily biased against me. 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.”

Interestingly, it didn’t seem to occur to Judge Gray that in publishing on the official website of the Victoria Legal Services Board and Commissioner an unfounded statement that my complaints were “unfounded and vexatious” (see “Unfounded and vexatious allegations of corruption against VLSB+C by Mr Peter Mericka” which remains in place to this day) instead of following proper procedures in having my allegations investigated and taking legal action against me if they were found to be truly unfounded and vexatious, Fiona McLeay was engaging in precisely the conduct he was condemning. (Note that the posting does not attempt to claim that the matters were ever independently found to be vexatious or unfounded – merely that Fiona McLeay and her team “consider these allegations to be unfounded and vexatious“.)

In his findings Judge Gray relied heavily on his own ill-considered view that a lawyer should not 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. Indeed, as will be seen, the conduct of the Law Institute of Victoria, the Victorian Legal Services Board and Commissioner, VCAT, and the Prothonotary of the Supreme Court of Victoria confirmed that the concerns I expressed to Judge Gray were well-founded.

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 proceedings or prosecution.

Of course, I was offended by Judge Gray’s describing my character as “flawed” when his own character and that of his paymasters was more so. Nonetheless, I ignored this little barb.

The most serious flaw in Judge Gray’s findings, and one that I was not prepared to accept, was his improper use of the term “unsubstantiated” in relation to my allegations, when he had already confirmed that he had no interest in looking into the truth or otherwise of what I had published. I decided to pursue this before it could take on a life of its own.

Confirmation that truth had never been a consideration

I had made a number of attempts to tease out what it was that had prompted the “investigation” into my being a “fit and proper” person. Eventually, in her letter of 23 July, 2021 Ms Tania Wolff had apologised for the poorly conducted process and acknowledged that I had not been told what “matters of concern” had created the supposed need for an investigation into my being “fit and proper”:

“I also accept that the matters of concern should have been identified to you when you were notified of the delegation and the investigation.”

Ms Wolff could not identity any such matters of concern, and simply directed me to the questions prepared by Judge Gray.

Eventually, Judge Gray admitted in an email dated 29 July, 2021 that the only “matters of concern” were my website publications:

“Dear Mr Mericka,

I refer to your email of 27 May.

You have asked me to identify the specific matters that gave rise to the questions I put to you before our 18 June meeting.

On 8 June Mr Docherty of the LIV notified you of the specific items of information provided to me for my review. The list of items included 3 websites.

I reviewed that information and formed the view that your website publications were the important matters- the “matters of concern”.

Over the following months I also wrote to Mr Peter Docherty, who had become the mouthpiece for both the Law Institute of Victoria and Judge Ian Gray, pressing him regarding Judge Gray’s improper characterisation of my corruption allegations as “unsubstantiated“. Eventually Mr Docherty gave me an unequivocal confirmation that Judge Gray had not bothered at all to look into the veracity of my allegations, and that his statement that my allegations were “unsubstantiated” was itself unsubstantiated:

“Dear Mr Mericka,

You have been provided with Judge Gray’s investigation reports. He has not purported to make any findings as to whether the allegations on your website are substantiated or unsubstantiated, nor did he consider that such a determination was within the scope of his investigation.”

This was what I wanted. Judge Gray had apparently confused himself in his first report of 22 June, 2021. At paragraph 11. he refers to my allegations and states:

“None are substantiated with detailed information or evidence.”

However, having relied on this statement as somehow detracting from the veracity of my allegations, he immediately seeks to justify his complete failure to investigate this crucial aspect by claiming that he was unable to check as to whether or not the allegations were true with this sentence:

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

This is immediately followed by paragraph 12. where he states:

“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.”

So, while it was not within the scope of his investigation to comment on the merits (i.e. the truth) of my allegations, Judge Gray makes the baseless and very damaging statement that they are not substantiated. To be sure, he follows this statement with the observation that further detailed information or evidence may be required, but this simply underlines the fact that evidence is required in any investigation to confirm or refute an allegation. I submit that Judge Gray’s failure to seek the evidence he required in order to determine the veracity of my allegations was deliberate and improper. Indeed, such a basic enquiry would have short-circuited the entire shambolic “investigation”.

(See my examination of Judge Gray’s flawed investigation “Judge Ian Gray – Flawed Investigation“.)

So, now I had Mr Docherty, on behalf of the Law Institute of Victoria and the Victorian Legal Services Commissioner acknowledging that no effort whatsoever had been made to determine the truth or otherwise of my allegations. In the same email, Mr Docherty also confirmed that the Law Institute of Victoria Council had accepted both Judge Gray’s conclusion AND his recommendation that I should be found to be a “fit and proper” person and that a condition should be added to my practising certificate requiring me to report my allegations of corruption to IBAC. (See Mr Docherty’s email dated 16 September, 2021 confirming acceptance of Judge Gray’s conclusion and recommendation.)

I was delighted that my practising certificate would be subject to a condition REQUIRING me to report my allegations to IBAC. Why? I explained these reasons to the Law Institute of Victoria in my email to Mr Docherty dated 20 September, 2021:

“The reason I am able to accept Judge Gray’s recommendation is that you have recently confirmed that the word “unsubstantiated” does not belong in the Judge’s finding as reproduced in Ms Wolff’s letter of 4 August, 2021 and that the truth of my allegations is not contested.

Consequently, while I do not accept the Judge’s reasoning or his conclusion regarding the importance of the hierarchy of corruption reporting options, I am prepared to accept his recommendation.

I now believe that, by accepting Judge Gray’s recommendation, the outcome I have been seeking over the years will finally be realised insofar as I will be in a position to submit formal complaints to IBAC or the Victorian Ombudsman for investigation on the basis that doing so is required by the Victorian Legal Services Commissioner upon the recommendation of Judge Gray with the endorsement of the President of the Law Institute of Victoria and the Law Institute of Victoria Council.

I believe that this will reduce the likelihood of these matters being referred back the VLSC for self-investigation, which was one of the concerns I expressed to Judge Gray during our interview.”

My email proved to be explosive, as Mr Docherty et al. quickly realised that Judge Gray had provided me with a means by which I could avoid all of the issues I had put to him in our interview (see my examination of Judge Gray’s flawed investigation “Judge Ian Gray – Flawed Investigation“), and ensure that IBAC/Victorian Ombudsman would receive and act upon my corruption allegations. If IBAC/Victorian Ombudsman failed to properly investigate or referred my allegations back to the Victorian Legal Services Commissioner I would be in a position to complain about their conduct in failing to assist me in properly complying with the condition on my practising certificate.

In a hasty response to my email to Mr Docherty dated 20 September, 2021 Mr Docherty did not attempt to hide what amounts to a simple blackmail – we want your allegations of corruption removed without IBAC becoming involved, or we won’t give you your practising certificate. The precise words used by Mr Docherty were:

“…if you wish to have your practising certificate renewed…remove the specified material without further delay.”

Judge Gray’s big blunder

It seems that the true purpose of the “investigation” was to have Judge Gray determine that my practising certificate should be renewed in return for my removing my corruption allegations from public view. Had the ploy worked as anticipated I would have had to effectively withdraw my allegations and keep my mouth shut about the corruption I had exposed. But Judge Gray went a little further than his paymasters had expected; 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.”

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. (See again my email to Mr Docherty dated 20 September, 2021.)

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.

Done and dusted – but not quite

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. These statements made it quite clear that the Law Institute of Victoria Council had met, had considered the matter, and had made a final and binding decision. Equally clear was the ending of the delegation to the Law Institute of Victoria Council, so that it no longer had any authority to deal with the matter of my practising certificate. In other words, the matter was done and dusted.

I responded to to Mr Docherty’s email, setting out my view of matter and its mishandling by Mr Docherty and the Law Institute of Victoria Council (see the email from Peter Docherty et al and my response – 22 September, 2021).

The following day I was surprised to receive a further email from Mr Docherty (see the email from Mr Peter Docherty on behalf of the Law Institute of Victoria Council dated 23 September, 2021), which indicated that perhaps the Law Institute of Victoria Council had hurriedly convened a further meeting and decided that I should be given a further opportunity to respond to blackmail. In this email Mr Docherty indicated that, despite having already confirmed in writing the previous day that the “LIV Council has made a final decision to refuse your application to renew your practising certificate” and that the “LIV considers that the subject matter of the delegation is at an end” the whole matter could be re-opened provided that I would accede to their blackmail, expressed as follows:

“…if you wish to have your practising certificate renewed…remove the specified material without further delay.”

It had taken much time and a great deal of chicanery on the part of the Victorian Legal Services Commissioner, Judge Ian Gray, the Law Institute of Victoria Council and Mr Peter Docherty before this blackmail was exposed, and expressed so succinctly. Mr Peter Docherty and the Law Institute of Victoria Council had done what they could to dress up their blackmail in legal garb in the hope that it would pass as legitimate, but I stood my ground.

In response to attempts by the Law Institute of Victoria Council to convince me to back down I sent a final email confirming that I had accepted the recommendation of the “independent investigator” and that I expected those who had appointed him to do the same. (See my email to Mr Peter Docherty dated 23 September, 2021.)

Declared “not a fit and proper person” – recap

The Law Institute of Victoria Council declared that I was not a fit and proper person to continue practising as an Australian Legal Practitioner, simply because I insisted on following the recommendations of the person they had appointed as “independent investigator”.

It should be borne in mind that I was never consulted regarding the appointment of the “independent investigator”, and that the choice of Judge Ian Gray was made by those who had betrayed my trust (the Law Institute of Victoria), acting on behalf of the person against whom I had made serious allegations of corrupt and criminal conduct (Ms Fiona McLeay, Victorian Legal Services Commissioner).

Despite his bias and other shortcomings as an “independent investigator” (see my examination of Judge Gray’s flawed investigation “Judge Ian Gray – Flawed Investigation“) Judge Ian Gray could not find any basis on which my practising certificate could be withheld, and recommended that my practising certificate should be renewed on the condition that I should remove my published corruption complaints from public view and refer them to IBAC or the Victorian Ombudsman for investigation.

Judge Gray’s recommendation that my corruption allegations should be formally investigated shocked those acting on behalf of Ms Fiona McLeay, and they did what they could to ensure that this would not happen. Ultimately this resulted in the simple blackmail that Fiona McLeay’s conduct hinted at from the day my practising certificate was withheld, as expressed in the words of Mr Peter Docherty:

“…if you wish to have your practising certificate renewed…remove the specified material without further delay.”

The end of my law practice

The withholding of my practising certificate and the bogus investigation conducted by Judge Ian Gray was the beginning of the end of my law practice. I had explained this to Judge Ian Gray in an email dated, well before the matter had concluded (see my email to Judge Ian Gray dated 16 July, 2021 and my follow up email to Judge Ian Gray dated 18 July, 2021 in which I ask him to recuse himself).

Although I initially believed that there might be some way of saving my law practice, or perhaps gaining employment in another law firm, the decision of the Victorian Law Institute of Victoria to refuse the renewal of my practising certificate meant that I could do neither. The best I could hope for now was to lodge an appeal with VCAT in order to buy enough time to keep my office doors open while searching for someone to take over my law practice. I fully expected to win on appeal, but it would be too late to save my law practice.

Shunned by the President of the Law Institute of Victoria

As a member of the Law Institute of Victoria for over three decades, I felt that I was entitled to call upon my professional association for assistance and support. (Recall that earlier during the “investigation” Mr Peter Docherty had suggested that I should write to the President of the Law Institute of Victoria to seek assistance.)

I had been poorly served by my professional association, and so I felt that it would help if I could meet with Ms Tania Wolff, President of the Law Institute of Victoria, in person to discuss what had happened and how she and the Law Institute could now assist me in my capacity as a member of long-standing. I wrote to Ms Wolff on 28 October, 2021 to request a meeting with her (See my email to Ms Tania Wolff dated 28 October, 2021), and I received a “read-receipt” a few hours later confirming that Ms Wolff had received and read my email.

It took Ms Wolff a fortnight to reply to my email, and then only after I had followed up with a further email requesting a response. But the response, when it came, was most disappointing. It consisted of a refusal to meet, “I refer to your recent emails and apologise for the delay in responding. I do not consider it is constructive to meet with you directly…” followed by cut-and-paste material taken from the Law Institute of Victoria website regarding The Law Institute Member Counselling Service and The Employment Law Service/ Members Advisory Service.

Ms Wolff made it abundantly clear that she, and therefore the Law Institute of Victoria, had no interest in assisting me beyond a cookie-cutter referral to services that were of no use to me at all.

Appeal to VCAT

When the Law Institute of Victoria Council, as proxy for corrupt Victorian Legal Services Commissioner Fiona McLeay, refused to renew my practising certificate I was faced with two options:

Option 1 – I could accept that I was no longer entitled to practise as an Australian Legal Practitioner. This meant that my law practice would have to close down, and I could no longer deal with existing clients or instruct my staff. Nor could I take employment as a lawyer in another law firm. In short, my career as a lawyer would be finished.

Option 2 – I could appeal the decision of the Law Institute of Victoria Council at VCAT, seeking a stay of the decision (so that it would not take effect) in the meantime. Although my law firm would have to close (due to the resignation of a crucial employee as outlined in my email to Judge Ian Gray dated 16 July, 2021 and my follow up email to Judge Ian Gray dated 18 July, 2021), having VCAT order the renewal of my practising certificate would at least allow me to find a buyer for my law firm and to assist in a smooth transition of staff and clients.

I lodged an appeal, and sought a stay of the non-renewal decision pending the outcome of the appeal.

A further blackmail by the Victorian Legal Services Commissioner

The “Guidelines on the State of Victoria’s obligation to act as a model litigant” include the following observations:

“In essence, being a model litigant requires that the State and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards…The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.”

In short, the Victorian Legal Services Commissioner must behave in a manner that is scrupulously fair, and not use her power under the law to bully, harass (or blackmail) an opposing party in litigation.

So, how did the Victorian Legal Services Commissioner react when I sought a stay of her decision to refuse the renewal of my practising certificate?

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