Victorian Legal Services Board v Peter John Mericka – Annotated Transcript of Supreme Court Proceedings
What follows is a transcript of the Supreme Court proceedings by which the Victorian Legal Services Commissioner (VLSC) effectively misled and deceived Justice Harris. The VLSC had sought an “expedited hearing” in response to my having removed my name from the Supreme Court Roll in protest against corruption perpetrated by the Victorian Legal Services Commissioner, former Chief Justice Marilyn Warren and a host of other high-ranking public servants over two decades. I have annotated the transcript to highlight the shortcomings of the proceedings, and to expose the confirmation bias in the material received by Justice Harris.
[Went through sham in order to see off the questions that would inevitably arise from my removing myself from the Roll!]
TRANSCRIPT OF PROCEEDINGS
SUPREME COURT OF VICTORIA – S ECI 2023 03928
CIVIL JURISDICTION
PRACTICE COURT
MELBOURNE
MONDAY 4 DECEMBER 2023
BEFORE THE HONOURABLE JUSTICE HARRIS
IN THE MATTER of an Application:
VICTORIAN LEGAL SERVICES BOARD v PETER JOHN MERICKA
MR J. STOLLER appeared on behalf of the Applicant.
HER HONOUR: Thank you. Mr Stoller.
MR STOLLER: Yes if the court pleases. We don’t expect Mr Mericka to be here on our side of the Bar table. He has not participated in any part of the proceeding but I wonder whether, I don’t know that he’s been called outside, whether it would ‑ ‑ ‑
I had informed the Supreme Court in writing that I would not be attending the hearing, and I gave my reasons quite clearly. It was my expectation that, in the Court would examine ALL of the facts and conclude that a corruption investigation was warranted in order to reveal the truth.
HER HONOUR: It might be prudent mightn’t it just do that, it doesn’t appear from his correspondence that it’s likely that he’ll come but Mr Associate could you call Mr Mericka outside?
Such attention to detail in taking “prudent” steps to ensuring that I was afforded every opportunity to appear before the Court. It’s a shame that the same attention to detail was missing when it came to ensuring that I had been provided with a copy of a crucial affidavit! More on this later.
ASSOCIATE: No appearance, Your Honour.
It is quite telling that Justice Harris showed no interest whatsoever in the fact that I had informed her and the Court that I had “…lost faith and confidence in the judicial system of Victoria and I no longer wish to have any involvement in it in any professional capacity.” I had expected that common-sense would have required at least some preliminary enquiry into the reasons for my having lost faith in the system and my complaint of corruption.
HER HONOUR: Thank you. Thank you, go ahead Mr Stoller.
MR STOLLER: Your Honour, my client, the Victorian Legal Services Board applies under s23(1) of the Uniform Law for an order that the name and particulars of the defendant, Mr Mericka are removed from the roll of legal practitioners kept by this court. My client requested before the judicial registrar an expedited hearing and we were given today’s date. I hadn’t anticipated being, the matter being listed in the practice court necessarily and I’m in the court’s hands as to whether Your Honour has time in that context to hear the application.
I had effectively removed my own name from the Supreme Court Roll of Legal Practitioners (the Roll) a year before this hearing. On 9 December, 2022 I telephoned the Supreme Court of Victoria and spoke to a gentleman who identified himself as “Rishi”. I explained that I wanted to have my name removed from the Roll in protest against the corruption I had experienced in the Victorian justice system. (It was my expectation that such a move would prompt an enquiry into my motive, and that a proper investigation of my corruption complaints would ensue.) Rishi told me that no legal practitioner had ever made such a request, and that the appropriate course was for me to submit a written request to the Prothonotary of the Supreme Court. I immediately wrote to the Prothonotary stating, “I am writing to you to formally request that my name be removed from the Roll of the Supreme Court of Victoria. My reason for this request is that I have lost faith and confidence in the judicial system of Victoria and I no longer wish to have any involvement in it in any professional capacity.”
It was not up to the Prothonotary or any other public official to approve or disapprove my removing my name from the Roll. I had unilaterally remove my name from the Roll, and that was the end of the matter.
The action of the VLSC in applying to the Supreme Court for an “expedited hearing” should be seen as a panicked reaction to my having removed myself from the Roll, and an attempt to prevent any investigation into the corruption allegations I had made. They also wanted it dealt with quickly because important documents had been withheld from me and they didn’t want me to have the opportunity to address this fairness issue.
HER HONOUR: No I’m comfortable hearing it today. It’s not I think the sort of matter that I would give an immediate judgment on.
MR STOLLER: No.
HER HONOUR: It’s the sort of matter that it’s in the public interest that I give some reasons ‑ ‑ ‑
MR STOLLER: Yes.
HER HONOUR: ‑ ‑ ‑ for the decision that I come to. So I’m very happy to hear it today but there won’t be a decision immediately.
MR STOLLER: No, certainly.
HER HONOUR: Thank you.
MR STOLLER: In that case I’ll commence if I may by reading the affidavits that are contained in the court book as well as handing up a further short affidavit affirmed by Mr McCarthy today. The first affidavit is described as the first McCarthy affidavit and was affirmed 29 August 2023. It starts at court book p6 and the exhibits to the affidavit conclude at court book 926.
It is noteworthy that Justice Harris was quite unconcerned that the affidavits being tendered to her had been prepared by a person who was the subject of a corruption complaint, on behalf of a person who was the subject of a corruption complaint.
HER HONOUR: Sorry. Sorry I’m in the wrong volume of the court book I’ll just, thank you, that’s the affidavit of Aidan Michael McCarthy affirmed 29 August 2023?
MR STOLLER: Yes. The second is a second affidavit of Mr McCarthy affirmed 9 November 2023 and it commences at court book 927 and concludes at 988.
HER HONOUR: Thank you.
MR STOLLER: I might hand up an affidavit but I understand my instructor has submitted for filing on the RedCrest system today but only very shortly before Your Honour came onto the Bench so I anticipate that won’t yet be on the system.
HER HONOUR: Thank you.
MR STOLLER: And that’s the third affidavit of Mr McCarthy affirmed today, 4 December 2023.
HER HONOUR: Sorry, I see that the first part relates to further publications by Mr Mericka and then the second from paragraph 13 onwards is with respect to service of material on Mr Mericka.
MR STOLLER: Yes.
HER HONOUR: You might need to talk me through exactly the effect of some of these, the response emails, the notifications to the emails that are sent, what’s the impact of that? Does it appear that Mr Mericka was aware of the hearing today or?
MR STOLLER: So the second McCarthy affidavit details that the, what’s called the defendant’s lawyer’s legal address ‑ ‑ ‑
HER HONOUR: Yes.
MR STOLLER: ‑ ‑ ‑ remains or was the last email address formerly provided to the Legal Services Board and Commissioner by Mr Mericka when he held a practising certificate. The delayed delivery fail notifications relate to that email address. There has been no response or indication that the emails sent to the other email address, the Gmail address have been returned in any event.
HER HONOUR: I’m looking at paragraphs 13 and 14 of the affidavit. So you’ve sent an email informing Mr Mericka of the listing before the court today.
MR STOLLER: Yes.
HER HONOUR: You’ve explained that in your second affidavit there’s a notification that – sorry Mr McCarthy has explained that there’s a notification that he receives, that his email has been relayed and that delivery is complete, that the destination service sent no delivery notification.
MR STOLLER: Yes.
HER HONOUR: I think there might be a quotation mark missing there, but that notification has been received in respect of every email sent to any recipient who’s not an employee of the Board.
MR STOLLER: Yes, that’s right.
HER HONOUR: And he received that notification in response to 9 November email ‑ ‑ ‑
MR STOLLER: Sent to the Gmail address.
HER HONOUR: ‑ ‑ ‑ and I think it also says it was sent to the lawyer’s legal address in paragraph 13.
MR STOLLER: Yes, and then there’s the explanation at 16 and 17 of the previous evidence having been given of the delayed – delivery delayed notification from the lawyer’s legal address and then at paragraph 18, that also happened on 9 November in respect of the email sent to the defendant’s lawyer’s legal address.
HER HONOUR: All right. So, there is a possibility that it has not been received, notwithstanding that it was sent to the email address provided by Mr Mericka.
MR STOLLER: Yes, that is a possibility, yes.
HER HONOUR: Okay, and then there’s another attempt to have informed Mr Mericka on 30 November.
MR STOLLER: Yes.
HER HONOUR: What do you say I should make of that difficulty in actually, in fact, bringing the listing date of Mr Mericka – to the attention of Mr Mericka.
MR STOLLER: Nothing, Your Honour. It’s really out of an abundance of caution that has been endeavoured, that those attempts have been endeavoured.
The affidavits of service of Anita Scott sworn 10 September 2023 from court book 989 to 1917, detail that Mr Mericka was served with the originating motion affidavit and covering letter on 30 August 2023, and in terms of the requirements for service, that is all that was required of my client.
Then, in the ordinary course if Mr Mericka wanted to participate in the proceedings, he would have filed a notice of appearance, filed and served.
We certainly have no record of that being served I’m instructed, and I don’t know whether there’s a notice of appearance on the court’s file with which we haven’t been served, but ‑ ‑ ‑
HER HONOUR: There’s a letter that is on the court file. It was received on 1 September 2023, addressed to the Chief Justice, so are your instructors aware of that letter?
MR STOLLER: No, Your Honour.
HER HONOUR: Well, it’s come to my attention, so I think it’s appropriate that you be aware of it. I can – I’ve got a copy here that I can provide. It does attach a copy of the originating motion.
MR STOLLER: Yes. May I have a moment to read that?
HER HONOUR: Absolutely.
MR STOLLER: Yes, so it’s plain from that letter in addition to Ms Scott’s affidavit that the fact of this proceeding has come to Mr Mericka’s attention.
HER HONOUR: Yes.
MR STOLLER: He was also, again not required to be served with the additional material but was served by Mr Darryl John West as deposed to in his 22 September 23 affidavit.
HER HONOUR: Can you remind me where that is in the court book, please.
MR STOLLER: Yes, that’s at p1918, and it’s a short affidavit concluding at 1922, and Mr West deposes to having personally served the summons for directions filed by the Board on Mr Mericka on that 22 September date.
HER HONOUR: Thank you, and Mr Mericka didn’t appear at that direction.
MR STOLLER: He did not, no.
HER HONOUR: Thank you. Well, thank you, I’ll – if you wish to proceed with your submissions today, I’m content that it’s appropriate to proceed in Mr Mericka’s absence.
It is interesting to note that Justice Harris was most concerned that I should have been informed of the date of the hearing, yet she was not at all concerned that I had been informed of the evidence being presented against me. Most importantly, Justice Harris made no enquiries at all as to whether or not I was made aware that the VLSC would be asserting that my allegations were false. Of course, had I known that such a false assertion was to be made I would most certainly have attended the hearing in order to refute the false assertion.
MR STOLLER: As the court pleases. So the crux of the Board’s application is that in its submission the defendant is not a fit and proper person to remain as a legal practitioner and is likely to remain unfit indefinitely. He is not fit and proper because over a period of approximately 10 years on and off, he has engaged in a campaign that was once described by his barrister at a VCAT disciplinary proceeding as a crusade, of repeatedly publishing serious and unfounded allegations that various people including judges of this court, are corrupt or otherwise involved in corruption.
No evidence had ever been presented in support of the assertion that my allegations were unfounded. Indeed, despite every effort on my part to have my complaints and allegations investigated no investigation was ever undertaken by any party.
Has Your Honour had an opportunity to read much of the affidavit material on file?
HER HONOUR: Not all of it, I think this having come on in the Practice Court but I’ve certainly read your submissions but I would be very grateful you’d take me to any aspects of the affidavit material that are particularly important.
MR STOLLER: Yes I will do, so to understand the conduct it is necessary to start quite early on with proceedings brought by then Director of Consumer Affairs Victoria, Dr Claire Noone against Mr Mericka way back in 2011. 2010 I’m sorry, the court file number indicates the proceedings were commenced, it was heard that proceeding on 6 and 7 December of ‑ ‑ ‑
In fact, the corruption issue arose almost a decade before the proceedings brought by the Director of Consumer Affairs Victoria. It arose with the first false statement made on behalf of the the Director by Ms Anna Lygopoulos in 2002.
HER HONOUR: Sorry Mr Stoller, I realise just before you go on I will make it clear that I will treat the two affidavits of Mr McCarthy which are in the court book, dated 29 August 2023 and 9 November 2023 as being in evidence for the purpose of your application.
Further examination of these affidavits is required – why would Justice Harris automatically accept the affidavits of a person accused of dishonesty and corrupt conduct as “evidence” while completely dismissing the material I had published as “unfounded allegations”? Did the Brigginshaw principle not apply?
MR STOLLER: Yes.
HER HONOUR: And I understand you filed the further affidavit of Mr McCarthy of 4 December 2023 and that’s been handed up to me and I’ll also treat that as in evidence for the purposes of the application.
Justice Harris’ confirmation bias is evident insofar as she was so ready to accept such material as “evidence” when she was aware that there had been no investigation into the truth or otherwise of my allegations, and she was aware that all attempts to initiate an investigation had been SO rigorously thwarted by the VLSC.
MR STOLLER: As Your Honour pleases. The first document I would seek to take Your Honour to is Justice Sifris’ judgment of 27 March 2012 which is, commences at p66 of the court book of the first volume, Volume A of the court book, it’s the third annexure to Mr McCarthy’s first affidavit.
HER HONOUR: Yes, thank you.
MR STOLLER: And as is clear from the header to that judgment, that was a case brought by Dr Claire Noone in her capacity as Director of Consumer Affairs Victoria and Mr Mericka and others which were various companies of, controlled by Mr Mericka were the defendants. His Honour at paragraph 2 over the page describes the parties. Paragraphs 1 and 2, the plaintiff, Dr Noone is the Director of Consumer Affairs Victoria and the first defendant, Mr Mericka is the sole Director and Secretary of the second defendant, Lawyers Real Estate and the third defendant, Slod Pty Ltd.
And the crux of the case before His Honour is as set out in paragraph 3 that the Director, Dr Noone alleges that the defendants have contravened the Estate Agents Act by among other things, carrying on the business of an estate agent without the necessary licence. And Mr Mericka and the other defendant’s response is as in broad terms set out in the final sentence of paragraph 3, the defendants contended they are not carrying on the business of an estate agent and in any event that Mr Mericka and Lawyers Real Estate do not require a licence as they are covered by an exemption.
This submission is a sanitised version of the true facts of the case, being misleading and deceptive conduct on the part of the Director, culminating in entrapment, and secret “investigation” and a biased case presented to a biased and compliant Judge of the Supreme Court. (See article re’ Sifris J.)
And that exemption was claimed because there’s an exemption in the Estate Agents Act for lawyers engaging in real estate type negotiations in the ordinary course of legal practice, or there was at least at that time. The court found ultimately that Mr Mericka and his companies had contravened the Act in those circumstances, that in short, that Mr Mericka and those other defendants were carrying out the business of an estate agent and that the exemption didn’t apply in those circumstances.
A second judgment in the proceeding was delivered by Justice Sifris on 24 April 2012 and that is in the court book at p0090. Following the judgment it’s apparent from the terms of the second judgment that the parties were not able to agree on relief flowing the court’s judgment. The defendants contended that declarations as to the law were all that were required and the Director sought injunctive relief prohibiting the conduct from recurring as well as requiring Mr Mericka to publish corrective advertising.
HER HONOUR: All right.
MR STOLLER: There’s one line I would draw Your Honour’s attention to in paragraph 5 of that judgment and because that’s the first mention chronologically of Mr Blair Ussher who is mentioned there as having given an affidavit for the Director. Mr Ussher was general counsel of Consumer Affairs and had conduct as a solicitor of the proceedings on behalf of Consumer Affairs. At paragraph 20 of that judgment, it’s important to raise as a matter of fairness to Mr Mericka, Justice Sifris said that His Honour accepted that the defendants are entitled to comment on the decision and to criticize the reasons provided they do not expressly or implicitly by such commentary or criticism indicate they will not abide the decision.
Although they have not done so expressly, the real concern relates to their expressed and clear misunderstanding of the reasons. It’s not clear to me that they understand the law which they say that they will comply with without the need for injunctive relief and so in those circumstances His Honour ordered injunctive relief including at paragraph 26, ordering that corrective advertising take place.
I don’t want to jump around in the chronology too much, but before I go on, I do want to take the court to p674 of the court book, or perhaps it’s more convenient to start at 669 just to identify the document which is a letter from Mr Mericka to Mr Howard Bowles, then Acting Executive Director of Complaints and Intervention at the Victorian Legal Services Commission and that’s a letter in response to a later complaint to the Commissioner by Mr Ussher and I wish to take the court to paragraph 32 of that letter, to understand – which is at p674 – about what Mr Mericka said he did in respect of that corrective advertising.
So, at paragraph 32, what happened as is clear from this letter, is that Mr Mericka published the corrective advertising, but on the same page of the – that those publications were made with the corrective advertising, he also included a publication of his own, directing readers, as it clear from the third dot point, he says:
‘Regarding my placing of an advertisement of my own inviting readers to inform themselves of the full story. i.e., the fact that I had actively sought compliance advice from CAV, that CAV – which is Consumer Affairs Victoria – had refused to provide this advice and had then ambushed me with Supreme Court proceedings as I understand are to proceed in the circumstances.’
So that’s what Mr Mericka did in respect of that corrective advertising requirement by the court and what Mr Ussher did in response to that, as general counsel of Consumer Affairs Victoria as is clear from this letter, is wrote to Mr Mericka and said, in effect, that constitutes a contempt of court and if you don’t take certain steps to remedy that contempt, I’ll bring proceedings for contempt of court, and that ultimately did not happen.
Note that Mr Stoller is keen to inform the court that Mr Ussher’s false threat of contempt proceedings “did not happen”. It appears that Mr Stoller is attempting to convince the court that because Mr Ussher did not carry out his false threat, the threat was therefore benign, and that I was not entitled to regard it as real. He mentions this again below. Also, that Mr Stoller, on behalf of the VLSC, took great care to avoid the fact that Mr Ussher had lodged formal complaint against me with his colleagues at the VLSC, and that his complaint was dismissed. This indicated that the VLSC had accepted that I had a proper basis for alleging blackmail and corruption against Mr Ussher. This is a further example of bias in the proceedings.
HER HONOUR: Where’s that letter, Mr Ussher’s letter. Is that in the court book?
Of course it was not in the court book, as it clearly demonstrates that both the Director and Mr Ussher had committed criminal blackmail and had thereby compounded their biased and corrupt conduct.
MR STOLLER: It’s not, no.
HER HONOUR: No, that’s okay.
How is it OK that such crucial material should be excluded when it is being relied upon by the VLSC?
MR STOLLER: But that’s the allegation that’s repeatedly made by Mr Mericka throughout the proceedings, and that forms the basis for – which is why it’s relevant – it forms the basis for Mr Mericka’s assertion that Mr Ussher blackmailed him, and his repeated publications to that effect are all justified and set out, and so again, it’s a matter of fairness to Mr Mericka who’s not here, his entire explanation for why he says he has a proper basis to be saying that Mr Ussher blackmailed him, are set out in this letter.
At this stage Mr Stoller offers nothing more than the fact that serious allegations had been made. He makes no reference at all to Mr Ussher’s complaint against me having been dismissed or Mr Ussher’s failure to consider defamation proceedings. Both of these facts were highly relevant in any discussion concerning Mr Ussher’s letter and my allegations.
But if I can go back in time and resume the chronology with – at p111 of the court book – I’m sorry, it’s 102, one-one is an attachment to that.
HER HONOUR: All right.
MR STOLLER: So, Your Honour might recall in terms of the dates that the second judgment of Justice Sifris at 24 April 2012.
HER HONOUR: Yes.
MR STOLLER: In the interim, Mr Mericka has published the corrective advertising, been threatened – or been demanded to remove it with a threat of contempt proceedings. In the event that didn’t happen, and at p102, Mr Mericka wrote to Her Honour then-Chief Justice Warren, saying that he wished to lodge a formal complaint of bias and incompetence on the part of Justice Sifris.
As mentioned above, Mr Stoller appears to misrepresent Mr Ussher’s failure to proceed with the false contempt charges as somehow negativing my complaint of blackmail. The threat was real, whether or not it was carried out. Indeed, the fact that it was not carried implies that it was always false and never intended to proceed. Even worse, it may suggest some form of interference by the Chief Justice so as to prevent an application for recusal by Justice Sifris.
In the second paragraph:
‘The complaint is based on the Judge’s allowing his court to be used for the purpose of ordering corrupt conduct, thereby giving the conduct a veneer of legitimacy. With the imprimatur of the Supreme Court, the corrupt conduct continues under the cloak of orders made by Justice Sifris.’
HER HONOUR: Thank you.
MR STOLLER: Attached to that letter were various other pieces of correspondence, including most relevantly at p111, a letter sent by Mr Mericka to the Victorian Ombudsman way back in March of 2010 in which he complains about Dr Noone’s conduct them and in the second paragraph says:
‘The complaint stems from false allegations made by CAV to the effect that I personally, and my firm, have committed breaches of the Estate Agents Act and the refusal of Dr Noone and Consumer Affairs Victoria to properly investigate the matter to determine the true legal position and to exonerate me and my firm.’
So, it’s important to understand the growing, or the snowballing nature of those to whom allegations of corruption and the like have been made by Mr Mericka. It started before the CAV proceedings were even commenced or in the year they were commenced with an allegation that Dr Noone in her capacity as Director of Consumer Affairs was corrupt because she had alleged that he had contravened the Act.
This submission by Mr Stoller is quite false, and I submit that he deliberately misled the court on this aspect. I alleged corruption on the part of Dr Noone because of the her refusal to provide me with information and assistance regarding compliance, and deliberately entrapped me then surprised me with Supreme Court proceedings.
Of course, in the event it was found that he had contravened the Act by this court, and Justice Sifris, in having made that finding, was the second person alleged to have engaged in corruption, extended then to general counsel for Consumer Affairs Victoria, and as we’ll come to, to the Chief Justice for her response to these – for Her Honour’s – I’m sorry – response to these letters.
Again, these are false assertions. The corruption allegation against Sifris J. was based on his bias, his false finding that I had “knowingly” contravened the law, his failure to comprehend or acknowledge the circumstances of my having been brought before the court, and the patent absurdity of the findings regarding the negotiation of real estate sales – which continues to this day.
At p115 is a second letter from Mr Mericka to the Chief Justice. Mr Mericka says in the second paragraph, ‘I note the substance of my complaint is not denied nor is there any explanation for the conduct of The Honourable Justice Sifris in allowing corrupt conduct to be laundered through his court. As you are now aware the matter dealt with by Justice Sifris was brought in reprisal for me having made a formal complaint to the Minister for Consumer Affairs regarding corrupt conduct. As a direct result of the corrupt conduct having been laundered through the Supreme Court my personal reputation and community standing have been severely damaged.’
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
So that’s the second letter to the Chief Justice. The third is at p116 and this is where her Honour the Chief Justice became the subject of allegations personally in respect of the way it was alleged that her Honour had handled the complaint. The letter’s titled, ‘Re corruption cover-up, complete mishandle, the Supreme Court’s handling of this matter is a disgrace, I’ve lost confidence in the court’s ability to fairly and impartially deal with it. Instead of confronting the corruption complained of, the court now appears to condone it.’
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
There’s further allegations under the heading corrupt conduct by Justice Sifris over pp116 to 117 of, at what was said to be corrupt conduct by His Honour in reaching the decision which he did in March and April and those allegations were expanded under the heading ‘Cover Up’ on p117 where Mr Mericka said ‘I’m now firmly of the belief that Justice Sifris had been improperly influenced by factors external to the matter before the court. If the outcome of the trial had been pre‑determined the trial itself was a sham. I also believe Justice Sifris was fully aware the proceedings before him were brought in reprisal’ et cetera.
When a high-ranking public official declares an honest member of the community to be a dishonest person, knowingly causing catastrophic professional and reputational damage, when there is no basis for such a declaration then that public official has acted corruptly.
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
So it’s the same allegation being made again and the final paragraph of that cover-up section, Mr Mericka alleges that Irigoa says that he regards the delay in dealing with the complaint, the off-hand dismissal of it and the thinly, and the veiled warning against making serious allegations are the first stages of what is colloquially known as a cover-up. That’s where allegations of impropriety are first raised in respect of the Chief Justice.
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
HER HONOUR: Thank you.
MR STOLLER: On p118 there’s a letter sent to Mr Baillieu, then Premier of Victoria sent on 19 February 2023 and that’s titled Corruption complaint regarding the Chief Justice of Victoria where Mr Mericka alleges in the introduction or says in the introduction that he’s lodged a formal written complaint with the Legal Services Commissioner of Victoria regarding corruption and a possible perverting the course of justice perpetrated by the Chief Justice.
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
The crux of Mr Mericka’s complaint is that the Chief Justice received his letter, said Her Honour will take no further action and then sent those letters to the Legal Services Commissioner which in turn commenced an own motion investigation into Mr Mericka’s conduct in sending those three letters to the Chief Justice.
The position of Mr Mericka is summed up under the heading ‘Ultimate betrayal of trust’ at p120 where he says ‘I regard the conduct of the Chief Justice in failing to investigate my complaint intervening to prevent me being charged with contempt of court, off‑handedly dismissing my complaint and then seeking to have the Legal Services Commissioner discredit me is the ultimate betrayal of trust. I advise that the Legal Services Commissioner is in a position of conflicting interest insofar as he is implicated in the corrupt conduct referred to in my complaint to the Chief Justice he has initiated in the investigation without considering the circumstances.’
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
So this is when now it’s expanded to the Legal Services Commissioner then Mr McGarvie for commencing an own motion investigation into these three letters which were provided to his office by the Chief Justice of the State. So these three letters to the Chief Justice that I’ve just taken Your Honour to as well as the third letter to the Premier were the subject of disciplinary proceedings in VCAT commenced by the Commissioner. And in those proceedings, I’ll take Your Honour to the tribunal reasons in due course, but there’s some more water under the bridge before those reasons were published.
The fact of my making this allegation is not denied, because it was true and there has never been any investigation to prove otherwise.
But the conclusion of those proceedings was a plea of guilty to two charges of professional misconduct, on relating to the three letters to the Chief Justice and a second relating to the letter to the Premier and a finding of professional misconduct by the Tribunal to that effect in December of 2014.
HER HONOUR: Is that in the court book?
Mr Stoller has misled the Court. The VLSC made a deal with me, that he would not interfere with my Practising Certificate if I were to plead guilty to the misconduct charges. This deal was brokered by a lawyer friend of mine, on his advice. However, Stoller allows the Court to be misled into believing that the plea of guilty was the result of some kind of realisation or insight…
MR STOLLER: It is in the court book, yes and I will take Your Honour to the decision.
HER HONOUR: Thank you.
MR STOLLER: Before the decision was published, Mr Mericka made further allegations which I will take the court to. So at p141 of the court book is a letter sent by Mr Mericka to VCAT on 21 May 2014 regarding the proceedings of Legal Service Commissioner and Mericka and this is where if it weren’t already clear in the letter to the Premier, it becomes crystal clear that the allegation of corruption has expanded to include the Legal Services Commissioner for having investigated this matter and then brought proceedings at the Tribunal. It’s perhaps best summed up most easily because it is verbose and repetitive but in the conclusion at p144 where Mr Mericka says his position, I’ll let Your Honour read those three paragraphs in the conclusion.
HER HONOUR: Thank you.
MR STOLLER: And it can be seen that Mr Mericka has said that his defence will be that the legal proceedings have been brought by a corrupt public official being the Commissioner as an attempt to cover up the corrupt conduct of others, being the court and the Director and solicitor of Consumer Affairs Victoria.
At around the same time in 2014, Mr Mericka made publications on his website and I take the court to not all of those but to three of those. The first is at, commences at p193. In terms of the date of this publication, it’s not clear from the face of the document but Mr McCarthy says in his first affidavit at paragraph 38 that that article was published on or before 17 June 2014, the basis for that assertion is set out.
HER HONOUR: Thank you.
MR STOLLER: It’s somewhat repetitive but the first paragraph in blue there sums up the complaint and the scandalous and improper nature of the complaint as is clear from, it’s a point I’ll emphasise later but it’s clear this is a convenient place to look at it from the photograph and the name at the top of the web page that Mr Mericka is identifying himself as a lawyer on his website, as he does on his LinkedIn profile, and I will take Your Honour to an example of that in due course.
But it’s clear from that, the header with the photograph as well as from the banner on the right-hand side which also contains a photograph of Mr Mericka and describes himself as a lawyer and corruption whistleblower. The article is long and I won’t take Your Honour through all of it but the same complaint that was raised to VCAT as the ultimate betrayal is repeated in similar terms at p198 under the same heading, the ultimate betrayal ‑ ‑ ‑
HER HONOUR: Sorry what page was that?
MR STOLLER: 198.
HER HONOUR: Thank you.
MR STOLLER: There’s allegations of impropriety of improperly withholding documents, being his letters by a Ms McGillivray, then assistant to the Chief Justice in, under the heading ‘Implications flowing from the letters’.
As I say these articles are long but perhaps most, the passages I draw Your Honour’s attention to as well as those are at p202 over to 203. The conclusion sets out, particularly from paragraphs 5 to 7 that, the crux of Mr Mericka’s scandalous and vexatious complaint which is that ‘the day after informing me at paragraph 5 that she would be taking no further action the Chief Justice wrote to the Legal Services Commissioner and informed him of it [being the letter].
‘The Chief Justice did not inform me she would be writing to the Legal Services Commissioner nor did she offer me the opportunity to address whatever concerns had prompted her to write to the Commissioner’.
In paragraph 6, Mr Mericka describes the own motion investigation commenced as a consequence and at paragraph 7 he explains that charges of professional misconduct have now been laid against him and he’s expected to defend these charges as though they are the outcome of a fair and proper process.
‘I submit the charges laid by the Commissioner are tainted by corruption. The corrupt conduct was the subject of a complaint to the Minister of Consumer Affairs in a letter dated 18 December 2009, a copy of which was attached to my letter to the Chief Justice of May 2012 as an immediate consequence of my writing to the Minister, the person who was the subject of my complaint launched at the Mericka case which is the Consumer Affairs Victoria case which was heard and determined by Justice Sifris that was tainted by corruption that precipitated it.’
So one can see that the, all of this is relevant background for Your Honour to understand the ultimate submission that these allegations of corruption are made without any proper basis because they all stem from, or many of those that are repeated being the allegations against Justice Sifris, the Chief Justice, Chief Justice Warren and Dr Noone at the very least are allegations that arise from the fact that Dr Noone took and was successful in those proceedings in 2010 to 2012.
HER HONOUR: Thank you. Yes, thank you.
MR STOLLER: The next article that I take Your Honour to, again to identify the article, commences at p205, is titled, ‘Peter Mericka: How and why I became a corruption whistle-blower.’
Again, it’s a long article. I take the court to p214 where the charges of professional misconduct are set out and it’s alleged that VCAT is being used as a ‘corruption laundry.’ And with the conspiracy from Mr Mericka’s perspective, ever widening, on p215, Mr Mericka explains:
‘As I did with the Chief Justice’ in the second paragraph there – ‘I’ve written to VCAT to warn that Legal Services Commissioner charges are no more than an attempt to launder corruption through the judicial system.’ And he describes in the substantive paragraph under:
‘I’m now of the view that Consumer Affairs Victoria in collaboration with the Chief Justice and the Legal Services Commissioner, not to mention other arms of the Justice Department and government, will continue interminably to pursue and harass me until I abandon my role as corruption whistle-blower. In view of this, I now present the full story behind the Mericka case, the CAV case for public scrutiny.’
And I’m sorry, I should have mentioned that article was published on or before 1 July 2014 as is set out at paragraph 41 of the first McCarthy affidavit. The next publication at AMM 21, p217, again Mr McCarthy, at paragraph 42, deposes to his belief that this article was published on or before 1 July 2014, and this is the first mention in the chronology of an individual who works for the Legal Services Commissioner, Ms Danielah Iacono, who was then solicitor to the Legal Services Commissioner.
HER HONOUR: Yes.
MR STOLLER: I don’t need to take Your Honour through all of that long article. It concludes from p222 to 223 with – it purports to be an article expressing concern about Ms Iacono becoming involved in corruption in her position as a junior lawyer, but concludes at p223 that perhaps when all this conspiracy is exposed, Ms Iacono will meekly respond with something like”
‘Yes, I knew all of that, but my job was just to do as I was told, so I processed it’ and he describes that as a ‘Nuremberg defence’ and cannot be relied upon by a person in her position.
Ms Iacono is still at the Legal Services Commission in a much more senior role and there are further articles about her in recent times, but it all seems to stem back to this, to the extent that those can be ascertained – those can be understood, those later – those later articles and complaints. It becomes – or Mr Mericka’s complaints become less coherent in time which is why I’m taking the court to these earlier complaints because it is clearer, the crux of why and how he is alleging that these various individuals are corrupt is clearer in the earlier, and more coherent respectively in the earlier articles and letters.
HER HONOUR: Yes. It identifies that action by Dr Noone as the origin of the ‑ ‑ ‑
MR STOLLER: Of the whole thing.
HER HONOUR: Yes.
MR STOLLER: There are various other more recent matters, such as when my instructor is named in articles and indeed, most of the individuals who work at the Legal Services Commissioner who become involved in investigations or VCAT proceedings involving Mr Mericka get their own page on a website with an article about them.
It’s less clear in those later articles exactly what the corruption by Mr McCarthy, for example, is but it does seem to all have its genesis in the Noone proceeding, to the extent that it’s able to be ascertained.
Ultimately, one submission I will make is that as was found by VCAT in the 2014 proceeding, as a lawyer making such serious allegations, the court might conclude that not only must the individual believe them, but they must disclose the proper basis for making such serious allegations when they do.
So, to the extent that Your Honour accepts that argument, I’ll make the submission that there is no proper basis disclosed for any of these allegations, but to the extent that it’s impossible to ascertain the alternative argument is that – is that the – there is no proper basis for making these allegations – and that’s much clearer when we are talking about – when I’m talking about Justice Sifris, Chief Justice Warren, Dr Noone, because it’s much clearer what the alleged corruption is on behalf of those individuals.
On what basis is this submission made, when there has been no investigation and every attempt to have an investigation initiated has been thwarted!
HER HONOUR: What’s motivated Mr Mericka to say what he did.
MR STOLLER: To make those – yes.
HER HONOUR: Yes, I understand how you put it.
MR STOLLER: Yes. Moving to the VCAT decision now, which is at court book p122.
HER HONOUR: Sorry, could you repeat that number please.
MR STOLLER: One two two.
HER HONOUR: Thank you. Yes.
MR STOLLER: So that is the 18 December 2014 order and reasons of the Tribunal. In respect of both Charges 1 and 2, the respondent having pleaded, the Tribunal notes the responded has pleaded guilty to professional misconduct and has been found guilty as charged and in respect of each allegation is reprimanded. At p123, it shows that Mr Mericka was represented by counsel at that hearing. As I have earlier explained, Charge 1 which is described from paragraphs 15 to 21 related to the letters to the Chief Justice.
HER HONOUR: Yes.
MR STOLLER: Charge 2 which is described from paragraphs 31 to 36 related to the letter to the then Premier. Obviously despite those letters, the letter to VCAT and the other publications suggesting that Mr Mericka would dispute the allegations or the charges in the event he pleaded guilty to them as is recorded in the Tribunal’s reasons for decision he wrote, as I’ll take Your Honour, two letters of apology to the Chief Justice and to Justice Sifris which are described at paragraphs 38 and 39. He accepted in those letters as well as apologising, that the allegations he made had no objective basis and should not have been made.
With the benefit of counsel from trusted friends and colleagues he said in each letter ‘I have concluded for myself that the fears and concerns that gave rise to my making the allegations were purely speculative and ill‑conceived’.
These were the words suggested to me by counsel. I held my nose and adopted them, simply to end the matter and to retain my Practising Certificate and my law firm.
HER HONOUR: Yes.
MR STOLLER: Paragraph 45 is an important one for this application. Under the hearing ‘Cessation of the crusade’, the Tribunal says it is clear that the correspondence which has given rise to these charges is part of a crusade undertaken by the respondent and as a result of the proceeding commenced against him by the Director of Consumer Affairs, it is clear that he became obsessed. It was submitted at the Tribunal that both he and his wife want the crusade to end.
HER HONOUR: And it was the, I’m obviously to infer that it was submitted on behalf of Mr Mericka that both he and his wife wanted the crusade to end by his counsel.
My wife and I took the advice of my lawyer friend and accepted that we could not win against such powerful people and government funded organisations.
MR STOLLER: Yes.
HER HONOUR: Yes.
MR STOLLER: That is the only inference to draw.
False. The VLSC was fully aware that my false plea of guilty was the direct result of a deal brokered by my lawyer friend in order bring the false proceedings to an end and to allow me to move on.
HER HONOUR: Yes.
MR STOLLER: I will take the court in due course to a letter from, I don’t have the page reference here but I’ll come to it, where Mr Mericka says that he considers himself no longer bound by what he instructed his counsel to say at that hearing.
HER HONOUR: Yes.
MR STOLLER: So it’s clear that that inference is the only one open on the reasons but it’s also clear from the, from Mr Mericka’s own words that he did provide those instructions. The member of the Tribunal concluded at paragraph 48 that specific deterrence is of limited significance due to the unusual nature of the respondent’s actions, the fact he has an otherwise unblemished record and by his apologies, contrition and willingness to undertake psychological counselling it is most unlikely these actions will ever be repeated by the respondent.
So it was clear that that, that the apologies, the contrition, all of those matters that the statement through counsel that he would cease the crusade were significant matters in the Tribunal’s ultimate determination.
HER HONOUR: Yes.
MR STOLLER: 51 similarly, 50 there’s the explanation of the significance of the apologies, 51 a satisfaction expressed by the Tribunal that the respondent Mr Mericka has displayed insight into his actions, has appropriately displayed contrition by apologising, pleading guilty and has taken steps to take counselling to minimise the risk of repetition. And that’s how things stood for some time until in 2016, Mr Mericka started to make publications on LinkedIn where these types of complaints commenced re‑emerging. I don’t need to take Your Honour to all of those.
HER HONOUR: No.
MR STOLLER: They’re less serious than the earlier or later allegations. They’re less serious allegations and less problematic from the Board’s perspective but some of there were still significant. At page, they’re most conveniently looked at where they’ve been excerpted in Mr McCarthy’s affidavit but I will note the page numbers where the actual documents are for Your Honour’s benefit. So I’ll take Your Honour just to three of these 2016/17 publications. At paragraph 47 of Mr McCarthy’s affidavit at p20 of the court book ‑ ‑ ‑
HER HONOUR: Yes.
MR STOLLER: ‑ ‑ ‑ Mr McCarthy describes a post where Mr Mericka said ‘when I attempted to disrupt the real estate monopoly with technology my attempts were aggressively defeated through the improper connivance of the Law Institute of Victoria, the Real Estate Institute of Victoria and luddites within Consumer Affairs Victoria. The deceptions this triumvirate perpetuated remain in operation to this day.’ So it’s starting to complain again about impropriety in having undertaken the proceedings.
HER HONOUR: Yes.
MR STOLLER: Paragraph 50 of Mr, and that, the relevant LinkedIn post is at p274 at paragraph 50 and this LinkedIn post is at p254 because they go in reverse chronological order.
Mr Mericka revisits his complaints about the Commissioner, saying:
‘Were I to tell you the lengths that our LSC went in order to avoid the consequences of a proper investigation, you would be absolutely aghast.’
So, it might be inferred that’s a proper investigation into his allegations of corruption, his belief is:
‘Because it was preferable to toss me under the bus so as to avoid knocking over a chain of dominoes that would implicate numerous people across numerous departments, some public servants want to consider their promotional opportunities and transfer options before doing something that might create unnecessary difficulty.’
At paragraph 52, the complaints about the Chief Justice reiterate – re-emerge.
HER HONOUR: Yes.
MR STOLLER: My instructor has helpfully found that the page reference of 572 which is an email from Mr Mericka to Ms O’Shanassy of the Legal Services Board of 17 March 2015, where, in the second paragraph, he emphasises that it was him who made that, gave those instructions for his counsel to tell VCAT that the crusade was over.
HER HONOUR: Yes, I see.
MR STOLLER: And indicates that ‑ ‑ ‑
HER HONOUR: Says: ‘I no longer feel bound by my statement to VCAT that the crusade is finished.’
MR STOLLER: Yes.
HER HONOUR: Yes, thank you.
MR STOLLER: Again, back to Mr McCarthy’s affidavit, the allegations and more serious allegations resumed in 2020, and there were various allegations published or publications made in 2020 and 2021 in the lead-up to Mr Mericka’s practising certificate renewal application being refused and he then giving an undertaking to VCAT at the end of 2021 as part of an agreement for a stay of the VCAT decision to no longer publish these types of accusations against a range of named individuals.
I’ll take Your Honour to that undertaking in due course, but in terms of the publications in 2020 and 2021, those are detailed from paragraph 55 of Mr McCarthy’s affidavit on p23 of the court book. I’m conscious of the time and the time it takes to go through each of these ‑ ‑ ‑
HER HONOUR: Yes, it’s been – it’s been helpful Mr Stoller, if there is a way of perhaps summarising – I can see it was actually very helpful to go to the origins of the complaints, but it may be, your written submissions have also been very clear in setting out the materials, so perhaps if you wanted to take me through any of the remainder in a sort of a summary way.
MR STOLLER: Yes.
HER HONOUR: I do have the assistance of your submissions as to how you put the basis on which the court should act in making an order under s23(1)(b) but this quick journey through the materials is very helpful.
MR STOLLER: Yes. Well, trying to move more quickly then from this point. I won’t take Your Honour to each of the attachments, but there are more articles as set out from paragraph 55 alleging corruption on behalf – on the part of the same group – broadly speaking – the same groups of people who have already been the subject of complaints.
HER HONOUR: Yes.
MR STOLLER: Mr McGarvie was alleged to be corrupt in the publication, the article posted described at paragraphs 55 and 56. Again, it’s Mr McGarvie’s moral compass that is alleged to be ‘kaput’ in allegations of the article detailing allegations of corruption without a proper basis, at 57 and 58. Ms Iacono is again targeted in the post that is described at paragraph 59 and 60.
Iacono’s corruption stemmed from her knowledge that I had been unfairly dealt with, and her refusal to do anything about it. Reference my telephone call in which I asked her if she felt that I had been treated fairly in all the circumstances.
HER HONOUR: Yes.
MR STOLLER: It was alleged that the Commissioner again was corrupt, and that Ms Iacono and others was involved in misconduct and criminal offences and covering up the corruption of the Commissioner.
Again, all coming back to Dr Noone’s proceeding and the way that that, and Mr Usher’s complaint was investigated, the counter-complaints being investigated. It starts to get more murky, what exactly the complaints of corruption are at this stage, but the ultimate submission is that there’s not a proper basis for any of them disclosed in the documents or otherwise in existence.
Mr Ussher, who is by now a VCAT member, no longer General Counsel of Consumer Affairs Victoria, is attacked in the article described at paragraphs 61 and 62. Then it’s Daniel Deeks, a licensing paralegal at the Commission, who’s attacked in the correspondence described – in the article, I’m sorry – described at paragraph 63 to 64. Another former employee of the Commissioner, Luke Priday, who by then was the lawyer at Victoria Police, is attacked in – Mr Mericka had a real issue with Mr Priday. That is a name that comes up again and again, but that, the first that we’ve identified here is in this article at 65 and 66.
At 69 and 70, skipping over Ms McLeay, Ms Fiona McLeay by then the Commissioner is accused of having engaged in harassment, perjury, perverting the course of justice, being corrupt and covering up the corruption of the predecessor Commissioner and others. Paragraph 71 and 72 it’s now the turn of Ms Caroline Ward, then a senior investigator in discipline and suitability of the Commissioner who’s publicly attacked by this article described there.
The 2021 online publications are perhaps less problematic in that they don’t name Mr Ussher by name but they describe him as Mr U. And in the context of other publications that have been and were continuing to be made, his identity was readily ascertainable so they’re still problematic. But again it’s alleged that Mr U is a corrupt public servant who had been proved to have engaged in criminal offences, that he engaged in perjury and perverting the course of justice and cover-up, that the Commissioner was involved in a cover-up I’m sorry, and an officer of the Board and the Commissioner had engaged in perjury.
Similar sorts of allegations are described in the articles at 76 and 77. Mr Ussher is then named again in the August 21 articles at 79 and described at 79 and 80. And then we get to the position of the practising certificate proceedings that I described earlier and Mr Mericka’s undertaking in those proceedings which is at p344.
And what Your Honour can see critically about that undertaking is in the first sentence the undertaking is given to the Board and Commissioner as regulators of the legal profession and to the Tribunal, that until and unless the Tribunal otherwise orders or the respondent otherwise agrees in writing, he will not publish relevantly anything making allegations of corruption, bias or breach of duty regarding the conduct of the relevant individuals who are described over the page at 345 to include the Commissioner and any current or former employee of the Legal Services Board Commissioner, Consumer Affairs Victoria, the Law Institute, any Victorian judicial officer or member of a Victorian tribunal.
HER HONOUR: Yes.
MR STOLLER: And again it’s set out in my instructor’s affidavit and I won’t go through it having regard to the court’s indication.
HER HONOUR: No.
MR STOLLER: But there were, Mr Mericka described in various publications made at that time, him being under a gag order and the flow of publications slowed but didn’t stop entirely. It’s I would accept arguable that he didn’t breach that undertaking while the Tribunal proceeding was on foot. It’s arguable that he did. Your Honour doesn’t need to determine whether ‑ ‑ ‑
HER HONOUR: What was the origin of him giving the undertaking? Was that just a purely voluntary step that he took?
MR STOLLER: No it was part of a negotiation so I don’t know whether Your Honour was aware of the position, it’s different to other regulatory schemes in that once an application for renewal is made, a lawyer is deemed to be able to, deemed to continue to have a certificate until a decision is made on that application. And so there can be a stay of a refusal to renew because once the refusal to renew happens, obviously then a decision’s been made and Mr Mericka didn’t have a practising certificate. But once that decision was stayed, that decision can be stayed because then the effect is that a decision has not been made on his certificate yet and the deeming provision operates to maintain the status quo pending the outcome of the Tribunal proceedings.
So it’s different to a position, the position for a medical board for example, where you can’t get a stay of a refusal but, so that’s relevant background to understand that it was in the context of getting that stay order at VCAT that he gave the undertaking.
It could also be seen as a form of blackmail, by which the VLSC would immediately shut down my law firm unless I gave the undertaking demanded.
HER HONOUR: Yes.
MR STOLLER: So he gave the undertaking and then the Commissioner, the Commissioner or the Board? The Board consented to a stay of its refusal decision which meant that the deeming provision kicked in and Mr Mericka had a practising certificate while the Tribunal proceeding was on foot. There were further publications made. So there was a hearing of the Tribunal proceeding of the review application, of the refusal to renew the practising certificate, and then solicitors for the Board wrote to Mr Mericka and said we want you take down these publications that he’d made in the interim which are described in Mr McCarthy’s affidavit, they breach the undertaking.
Mr Mericka said well I don’t accept they breach the undertaking but I’ll take them down and in response to that and after the, in response to having identified these publications, the Board sought to, and notwithstanding that the hearing had concluded, the Board sought to re‑open its case to put on evidence of those publications before the Tribunal proceeding.
And in response to that proposal Mr Mericka withdrew his review proceeding at VCAT with the consequence that the decision refusing to renew his practising certificate, the position reverted to that decision and he therefore did not hold a practising certificate. Mr Mericka does not, it may be inferred, and again as a matter of fairness to him not being here, apparently no longer considers that the undertaking binds him, and his rationale for that, insofar as we can ascertain it, is as set out at p367.
So, reading from the bottom, he’s written to the Deputy President of the Review and Regulation List saying:
‘I refer to the attached orders dated 17 January’ – which were the orders granting leave to withdraw the review proceeding – ‘and note there is no specific reference to my undertaking. As this matter is now functus officio, it is my understanding that my undertaking is discharged and does not remain in effect in perpetuity. Please confirm I am no longer bound by my undertaking.’
And the tribunal didn’t give that confirmation. It responded in the email above saying:
‘The Deputy President has asked me to respond as follows: he made the orders to the effect the application is withdrawn on the basis of consent orders signed by both parties. The consent orders made no reference to the undertaking as such he’s not in a position to make any comment on the operation of the undertaking.’
And so, it’s clear that the tribunal did not make an order discharging or otherwise varying the undertaking. Mr McCarthy who was solicitor for the Board in that proceeding has deposed in his second affidavit to the effect that the Board did not – sorry – that the Commissioner did not otherwise agree in writing.
HER HONOUR: What do you say about the continuance of an undertaking when a proceeding in which the undertaking was made has been brought to an end. Is there any authority or other matter that you can prompt me, to make it clear that there is, unless an undertaking is withdrawn or discharged, if it’s not – if it’s expressed to be open-ended, is it in fact really open-ended once a proceeding is no longer on foot and if in fact, final orders have been made.
MR STOLLER: I haven’t been able to identify any authority on point, I have searched, and I have not identified any authority on point. I could ‑ ‑ ‑
HER HONOUR: It may not be decisive Mr Stoller because the evidence should suggest that it was some of these publications made while the undertaking was more clearly on foot, and before, as I understand it, the proceeding was brought to an end. So, it may not be decisive, but it may – may be a slightly complicated question.
MR STOLLER: Yes. I’m open to assisting if we may with further written submissions if that would be useful on that question.
HER HONOUR: At this stage, I think just observing it, there may be some question about the operation of the undertaking. It’s not really that you’ve had an opportunity to be ventilated in a way that Mr Mericka’s been involved in, and noting his view in the correspondence, it may be something that I wouldn’t feel I could rely on if it came down to a question of whether the undertaking was ongoing after the resolution of the VCAT proceeding.
It appears to me, though, that what your client relies on for the recommendation under s23(1)(b) wouldn’t – it turns on many acts of Mr Mericka and if I didn’t feel in a position to rely on his publications after the close of the VCAT proceeding as necessarily being in breach of an undertaking that may not make a great deal of difference. What do you say about that?
MR STOLLER: No. Well, it would be worse if they’re in breach of the undertaking quite plainly.
HER HONOUR: Of course.
MR STOLLER: But they are still – it is still conduct indicative of lack of fitness and propriety in circumstances where the allegations are scandalous, vexatious, there’s no proper basis to make them, in the premise, in the alternative, there’s no proper basis disclosed, they are – I would invite Your Honour to find publications made in the course of legal practice, in the way that they’ve been made and are discourteous, contrary to that inherent requirement. There are ways to raise serious allegations, and this is not the way to raise serious allegations.
When complaints are made in the proper manner, but are either ignored or, as occurred with the Chief Justice, are used as a means to discredit the complainant, extraordinary means of being heard become necessary.
They are, in the way they’ve been made, likely to bring, liable to bring the profession into disrepute, they’re disrespectful and bordering on contemptuous, and when they’re made about judges of this court, for example.
When complaints are made in the proper manner, but are either ignored or, as occurred with the Chief Justice, are used as a means to discredit the complainant, extraordinary means of being heard become necessary. At all times, complaints I have lodged have been dismissed without investigation where investigation was clearly warranted.
HER HONOUR: Thank you.
MR STOLLER: So, in terms of – and I think I can go through them reasonably quickly, those – many of those articles were re-published – that I ought earlier taken Your Honour to or described in broad terms.
The LinkedIn posts are perhaps – that are described from paragraph 131 of Mr McCarthy’s affidavit are the most – and these are the 2023 LinkedIn posts from 131, it’s sort of the neatest and easiest way to see the content of those allegations being ongoing in this way.
So, they start at 127, but I’ll take Your Honour to 131 and following as the more significant of those posts in the context of this application.
Again, 27 May 2023, Mr Mericka says ‘I offered Victorian consumers an alternative to the conventional real estate but corrupt Consumer Affairs Director, Dr Claire Noone killed it and my business’. So again it’s back to Dr Noone having commenced this proceeding as the basis to allege that she is corrupt.
The same or a similar allegation is as described at paragraph 123, sorry 132, ‘Dr Noone and her equally corrupt general counsel Blair Ussher stepped in to destroy it and ensure it could never take off’. So again it’s clear that part at least of what’s, why Mr Ussher is alleged to be corrupt is because he was involved in those proceedings brought by Consumer Affairs.
134, again it’s alleged on LinkedIn in April this year that Dr Noone had managed to evade the consequence of a corrupt conduct for years but her past was about to catch up with her. It describes at 135 Mr Ussher as a co‑accused of Dr Noone. Again, neither of them are accused of anything by, that plainly makes it sound like or the imputation to draw from that is that they are subject of formal criminal charges, to describe someone as a co‑accused whereas the only accusations are coming from Mr Mericka.
Mr Stoller and the VLSC are quite disingenuous here. The VLSC accepted Ussher’s complaint against me, but dismissed my complaint against Ussher without reasons. When the VLSC continued with Ussher’s complaint I confirmed that he was guilty of criminal blackmail, and the VLSC accepted this by dismissing his complaint. When I demanded by my complaint against Ussher should be re-opened the VLSC refused. I lodged a complaint with the Ombudsman, but this too was dismissed. At all times, complaints I have lodged have been dismissed without investigation where investigation was clearly warranted.
HER HONOUR: Yes.
MR STOLLER: The final paragraph at 135, in the quote at 135, Mr Mericka says ‘I will be providing full details on the conduct of former Consumer Affairs Director, Dr Noone and her former general counsel and VCAT member, Mr Ussher in due course via my website. Part of what Your Honour would need to conclude to accede to my client’s application is that Mr Mericka is likely to be, is unfit but is likely to be unfit indefinitely.
Providing full details in order to demonstrate a “proper basis” to the world at large renders me unfit indefinitely? Would this not generate an interest as to the material I might present, and perhaps prompt some form of investigation?
HER HONOUR: Yes.
MR STOLLER: There are two ways that Your Honour can reach that conclusion. If Your Honour concludes that he is unfit, the first is that he has been engaging in this conduct for such a long period of time. He’s undertaken, not given an undertaking but he’s undertaken through his counsel to cease the crusade in 2014, he’s been subject to disciplinary proceedings along the way, he stops for a while and then he starts again. So Your Honour can conclude on that basis alone that he’s likely to remain unfit indefinitely if Your Honour indeed concludes he is unfit because of these publications. But in any event he says here and in other places in this more recent tranche of publication that he’s going to keep doing this.
It is a very simple question as to the truth of what I have published. If anything were untrue then any number of individuals would be entitled to sue me for defamation – it has never happened because all I have said in my publications is true!
HER HONOUR: Yes.
MR STOLLER: 139, the post on the LinkedIn profile from around March, 23 March 2023, he says ‘The second part of my article on blowing the whistle on corrupt public servants has now been reinstated. The two articles were removed when a gag order was put in at the behest of corrupt former VCAT member Blair Ussher. So that’s an apparent reference to the undertaking voluntarily entered into by Mr Mericka as part of the stay, part of gaining a consent of the Board and Commissioner to the stay of the proceeding. There’s simply no evidence that Mr Ussher had anything to do with that and it’s an entirely improper assertion to have made in that way.
141, it starts coming back to this court where it’s alleged that Mr Mericka in a series of postings says he will expose corruption across a number of Victorian government departments including involving senior public servants, judges of this court, VCAT and the Law Institute. So again it’s, this is not only an allegation of corruption but it’s a promise to continue publishing. I’m conscious of the time I’ve taken already. The Gadens, there’s a separate disciplinary proceeding that occurred in VCAT relating to emails that were found to be discourteous sent to Gadens. There’s a record of that decision in the tribunal book.
I don’t need to take Your Honour to it, it doesn’t add a lot but it is another time, another, it’s another time when Mr Mericka could have taken the opportunity to sit back and think about the way that he communicates as a legal practitioner and did not. So the first affidavit of Mr McCarthy was 29 August and then, of this year and the two subsequent affidavits substantively have been included in the court book to show publications since that date. The second affidavit relevantly commences at page or the passages relating to the publications in this year commences at p930 of the court book.
The Gadens matter was a re-run of the McGillivray matter, which was found in my favour. But then Luke Priday lied about it in collaboration with Daniel Deeks, which set of a chain of events resulting in the corrupting of further VLSC officers. Stoller and the VLSC were aware of this, or they ought to have been aware.
At paragraph ‑ ‑ ‑
HER HONOUR: Sorry I’ve just managed to turn my screen off, I’ll just, have I accidentally projected my screen, Mr Associate?
ASSOCIATE: No.
HER HONOUR: No, that’s not, okay thank you.
HER HONOUR: Thank you. I’m back on track.
MR STOLLER: Yes. So p930.
HER HONOUR: Yes.
MR STOLLER: And these are the October and November publications, all on the defendant’s LinkedIn profile, at 15 the Board and Commissioner again described as a corrupt organisation that has a history of in-house misconduct and cover-up.
Paragraph 16 is a further attack on Mr Priday, the former senior investigator and now Victoria Police lawyer who is said to have been exposed as committing perjury and perverting the course of justice, but then allowed to transfer out of the VLSC and into Victoria Police.
Nothing mentioned about my letter to Fiona McLeay setting out Priday’s criminal conduct or the writing off of $80K
HER HONOUR: Yes.
MR STOLLER: Paragraphs 18 and 19 relate to a letter said by Mr Mericka to have been written to the current Chief Justice of this court requesting a response and alleging a lack of courtesy in Her Honour failing to respond to that letter. Paragraph 20, Mr Mericka adds:
‘A little more content to my writing to the Chief Justice. This is the second time this has happened to me. I wrote to Chief Justice Warren by way of complaint against Justice Sifris regarding his conduct in allowing his court to be used to launder corruption. The Chief Justice mishandled the complaint creating even greater problems.’
So, this is going back on the apology and the acceptance that there was no proper basis to have made those allegations and repeating them in the last couple of months.
It can be assumed that the VLSC and Stoller did their homework and read my postings in full, and would therefore have realised that I had pleaded guilty and apologised simply to be able to stay in business and to end the VLSC’s improper pursuit of me. Thus, there has been a deliberate omission of exculpatory material.
HER HONOUR: Yes.
MR STOLLER: Again, at paragraph 21, there’s this promise to make further publications or a similar promise.
HER HONOUR: Yes.
MR STOLLER: At 22, this is an allegation from context about Chief Justice Warren in respect of the letters sent, where it says:
‘The Chief Justice initially ignored me and then when I followed up she falsely stated she would be taking no further action but stabbed me in the back by implying she had investigated, found nothing and referred it to her former CEO and friend, Michael McGarvie to investigate in his new role was Legal Services Commissioner.’
So again, there’s this allegation of corruption on behalf of Her Honour.
At 24, there’s an allegation under an article about judicial bullying, where it said: ‘The bullying is carried over into the Office of the Commissioner.’ It goes on to say:
‘In Victoria, responsibility for this type of misconduct rests at the feet of the Chief Justice and in particular previous Chief Justice Warren.’
No evidence to refute anything I had published.
HER HONOUR: Yes.
MR STOLLER: The third affidavit and there’s not much here, Your Honour will be pleased to hear, but it goes right up until this Saturday just gone.
HER HONOUR: Can I just confirm, I do have an original copy of that sworn affidavit. You have filed another original with the court, is that the case, with the Registry.
Which affidavit is this? Did I receive a copy?
MR STOLLER: I think Your Honour may have a coloured photocopy that’s ‑ ‑ ‑
HER HONOUR: A very high-quality colour photocopy, yes.
MR STOLLER: Or is that the original?
HER HONOUR: Yes, that may be.
MR STOLLER: That may be the original, but it has been accepted for filing now, I’m instructed.
HER HONOUR: Thank you.
MR STOLLER: It should have made its way onto the system electronically, yes. So, paragraphs 4 and 6 are further attacks on Mr Priday, as is paragraph 7. Paragraph 8 describes the Justice Department, the Commissioner of VCAT, the Judicial Commission and even the Supreme Court as corrupt, saying: ‘I have personally experienced such conduct from all of the above named.’
And the post from 2 December, which I think was Saturday just gone, two days ago, Mr Mericka says in a post on LinkedIn: ‘
‘It’s taken me well over a decade of fighting with two Victorian Legal Services Commissioner and a bent Chief Justice, as well as a host of other corrupt individuals, just to prompt an investigation into corruption initiated by Dr Noone when she was Director of Consumer Affairs.’
It was recounted on Saturday, right back at this all arising from Dr Noone having successfully taken proceedings in this court against Mr Mericka and his companies.
No mention of my having raised a corruption complaint before the Supreme Court proceedings. Deliberately making it look like nothing more than sour grapes.
HER HONOUR: Thank you. So, a clear indication in that 2 December 2023 post: ‘I’m only now approaching the endgame. It’s going to get really interesting now.’ Suggests there might be more forthcoming.
MR STOLLER: It does. It’s not as clear as in some of the other posts, but it is the natural inference in my respectful submission to draw from that.
HER HONOUR: Thank you. So, we do have some time remaining before the lunch adjournment. Your submissions have been, your written submissions are very clear. If you’re in a position just to take me through any key points of those submissions and perhaps now that you’ve had an opportunity to look at the letter that Mr Mericka did send to the court.
MR STOLLER: Yes.
HER HONOUR: And any submission that you’ve made about the effect of that letter, that would be of assistance.
MR STOLLER: Yes, certainly. Starting with that, if I may.
HER HONOUR: Yes.
MR STOLLER: I had said in the written outline that Mr Mericka’s apparent position was clear and that was a matter that could be taken into account. Of course, Mr Mericka, and it’s in the court book, Mr Mericka wrote to this court in December last year, asking for his name to be removed from the roll.
It’s in the second, the document is the first exhibit to the second affidavit of Mr McCarthy and that is at p943 of the court book. So on 12 December 2022, Mr Mericka wrote and said ‘I am writing to you to formally request that my name be removed from the roll of the Supreme Court of Victoria. My reason for this request is that I have lost faith and confidence in the judicial system of Victoria and I no longer which to have any involvement in it in my professional capacity’. So that’s the same view as he is now expressing in this 1 September 2023 letter, that is he says, ‘I will not be contesting the application by the Victorian Legal Services Board to have my name struck from the Supreme Court roll of legal practitioners’.
In the first paragraph of the letter that Your Honour handed to me today he concludes that 1 September letter with the sentence, ‘Please remove my name from the Supreme Court roll of legal practitioners forthwith’. That is something the court can take into account now as Mr Mericka’s consent to the application.
HER HONOUR: It’s not really a formal consent and it’s a bit of a disconnect perhaps between the reasons that he is asking ‑ ‑ ‑
MR STOLLER: Yes.
HER HONOUR: ‑ ‑ ‑ to be removed and reasons you were recommending, your client’s recommending to me ‑ ‑ ‑
MR STOLLER: Yes.
HER HONOUR: ‑ ‑ ‑ that I should make an order that he be removed.
MR STOLLER: Yes that is certainly the case, that is certainly the case.
HER HONOUR: Yes.
MR STOLLER: And he doesn’t accept the underlying plainly, he doesn’t accept that his statements are improper, that his publications are improper.
This is correct, so why does the Court not enquire into my motives and the bases for my beliefs that my statements are not improper?
HER HONOUR: Yes.
MR STOLLER: That is plainly the case but in terms of the orders that are sought by my client, those orders are agreed to.
HER HONOUR: He’s requesting the outcome, even if not ‑ ‑ ‑
MR STOLLER: He’s requesting the same outcome.
HER HONOUR: ‑ ‑ ‑ formally consenting to the orders.
This is correct, I was not consenting to the orders sought by the VLSC, particularly when they were based on falsehoods of which I was unaware because crucial material had been withheld from me!
MR STOLLER: Yes.
HER HONOUR: He may wish to be regarded as having taken the step at his own instance rather than this court acting on your recommendation.
CORRECT!
MR STOLLER: He may have been. At p944 of the court book is a response from the principal registrar of, sorry from the registry.
HER HONOUR: Yes.
MR STOLLER: It says principal registry, where it’s explained to Mr Mericka in response to his December letter from last year that if he wishes to be, that the court cannot remove a practitioner’s name from the roll in response to an email that an application is required, an originating motion with the prescribed fee or fee waiver together with an affidavit setting out the circumstances of your application exhibiting supporting evidence to verify your identity.
HER HONOUR: Yes.
MR STOLLER: So he has had the opportunity to make that application.
HER HONOUR: To make that application had he wished to be the moving party.
MR STOLLER: Yes and it’s not the same as in cases that I referred to in the written outline like the Gobbo case where Ms Gobbo was represented by counsel at the hearing and consent in the circumstances and for the reasons that were preferred there by the Board. I accept there are many of those features which are not present in respect of Mr Mericka’s consent if it can properly be called that. But the court can in my respectful submission take some comfort from the fact that he was asking for this in 12 December last year and is still asking for it in September this year.
This submission is quite misleading. I sought removal because of corruption – corruption in terms of my staying on the roll allowing the VLSC to conduct interminable investigations, and corruption in terms of my never having had a fair hearing. Had I been aware that false assertions that my allegations were untrue were to be made I would certainly have sought to defend the matter!
HER HONOUR: Yes.
MR STOLLER: Otherwise that, either one of those pieces of correspondence could be seen as potentially in his absence being an off-the-cuff, ill-considered, not well thought through position whereas where they come some nine and a half months apart, the court can take greater comfort from, that that is in fact Mr Mericka’s position, that his name should be removed from the roll or that he wishes to have his name removed from the roll even if perhaps he thinks it should not be.
It was a strategy to ensure that a proper investigation would take place. If my request for removal was ignored I could complain even louder. If my request were accepted I could use it to confirm acceptance of corruption. The only other alternative was for the Supreme Court to refer the matter for investigation. This was stymied by McCarthy’s lie that my allegations were untrue! And this was withheld from me so that I would not know that this lie was being put to the Court.
HER HONOUR: Yes.
MR STOLLER: In terms of the, the general principles are well established and are set out in, that is the general principles that the court will consider in applications of this type are set out in the written outline and the cases. Chief Justice Warren notes the meticulous, in the case of McGrath, Legal services Board v McGrath that’s referred to, the meticulous care that is required of the court before making an application of this type including because of the possibly disastrous consequences of disbarment for the individual concerned. Although in circumstances where Mr Mericka was consenting to it, of course meticulous care still needs to be taken but the consequences for him maybe take less or would be afforded less weight than might otherwise be the case.
This “…meticulous care that is required of the court before making an application of this type including because of the possibly disastrous consequences of disbarment for the individual concerned…” is totally absent in these proceedings! And what of the Briginshaw principle?
It’s been said by many judges in many different ways but it was well said with respect by Justice Forbes in the Gobbo case at paragraph 14 that ‘the concept of fit and proper gives the widest scope for matters of judgment’. And it’s important in this case where the Board has not been able to furnish Your Honour with equivalent precedent cases in which a court has taken action for precisely this type of conduct. It’s not like a case where there’s trust account in fraud ‑ ‑ ‑
HER HONOUR: Yes.
MR STOLLER: ‑ ‑ ‑ where there are regrettably dozens of those cases to point to and there is some element of being required to reason by analogy to reach the conclusion that the Board would urge on Your Honour noting that Your Honour has that widest scope for judgment in assessing this conduct. And in terms of the connection with legal practice, LinkedIn is now, as is clear from the exchanges and from the way that Mr Mericka expresses himself on LinkedIn, it is a way in which lawyers engage in legal practice in my submission.
It’s a way that lawyers market, share and exchange developments in the law and CPD events and the like, and it is I accept something of a, potentially of an expansion of the concept of in the course of legal practice from that that’s more commonly considered in the cases. But having regard to the purposes for which those requirements of courtesy in the course of legal practice, the rationale for those requirements are equally applicable in my submission to consideration of the way that a lawyer who identifies themselves as a lawyer, or to conduct themselves on a professional networking site like LinkedIn or indeed on any publication in which they identify themselves as a lawyer.
And Mr Mericka plainly identifies himself as a lawyer on LinkedIn. He’s always described himself as a lawyer throughout the material through the later part of the material he described himself as a lawyer and corruption whistle blower. But always as a lawyer on both LinkedIn and on his website. His LinkedIn links to and refers to his website on numerous of those posts that I’ve taken Your Honour to, so there is that – there is that connection between the website and LinkedIn as what is well-known as a professional networking site.
HER HONOUR: Yes.
MR STOLLER: I think those were the most, obviously relying on the written submissions, but those were perhaps the most important points to emphasise orally and to ask whether Your Honour had any questions about that line of reasoning or could otherwise be assisted.
HER HONOUR: I don’t think so, Mr Stoller. I think that’s been a helpful overview of the material that’s relied on. Your submissions have been very helpful in identifying the authorities for me. Is there any urgency to the making of the orders. I can see that it’s something that does need to be dealt with by expedition.
Why the haste? What about “the meticulous care that is required of the court before making an application of this type including because of the possibly disastrous consequences of disbarment for the individual concerned”? Why no investigation, given the correspondence between me and the Court?
MR STOLLER: Yes.
HER HONOUR: But there is the issue at this time of year of any order being made, then having the appeal period fall within a difficult time for some practitioners.
MR STOLLER: Yes. There’s – it might be difficult for me to stand up and demand or purport to demand a very prompt reason, given there has been some delay in, you know, the conduct has been going on for some years; that the longer Mr Mericka is able to say he is a lawyer and making these types of posts from the Board’s perspective, the worse it is and so there is no particular urgency that I can point to, other than that general position, but I don’t purport to – to require or demand a decision more promptly than the business of the court would ordinarily allow.
The allegations have been going on for many years, and yet no individual has ever considered defamation action. Surely this implies acceptance by those individuals of the truth of the allegations. Why does the judge not turn her mind to this?
HER HONOUR: On that point, just clarifying; Mr Mericka no longer holds a practising certificate.
MR STOLLER: No, that’s right, yes.
HER HONOUR: That’s the case, isn’t it? Where do I find the evidence of that, isn’t that in Mr McCarthy’s first affidavit?
MR STOLLER: Yes. So, the second attachment to that affidavit, which is at p65, so this is a certificate produced under s446 of the Uniform Law, and that shows Mr Mericka’s admission date and his practising certificate dates. That 17 January 2023 date is the date of the orders dismissing the tribunal proceeding that Your Honour was taken to earlier. So that’s the review proceeding.
HER HONOUR: Yes. Just before I say there’s nothing further that you can assist me on, I just wanted to look at the terms of s23 of the Legal Profession Uniform Law.
MR STOLLER: Yes.
HER HONOUR: We’ve got the evidence of the recommendation of the Board as you say, and then that enlivens my discretion. The notes to s23 make the observation that removal of a person’s name from the Roll results in the person becoming a disqualified person. Can you assist me with the interaction of s23, yes s23, with the provisions that would result in that disqualification?
What about the recommendation of the “independent investigator”?
MR STOLLER: I can, if Your Honour bears with me. He is, in any event, a disqualified person because of the terms of – so disqualified person is defined in s6 of the Uniform Law and I’ll just ‑ ‑ ‑
HER HONOUR: Thank you, I appreciate I’m asking all of these things without notice, so take your time.
MR STOLLER: No.
HER HONOUR: One of the – one of the reasons that I was interested in the outcome of this order removing Mr Mericka from the roll if I make it, was the reference that you made to him being unable to call himself a lawyer. I’m not sure that it has any necessary significance, but I was wondering if that follows from the order that I would make, or if it really also follows from the fact that he no longer holds a practising certificate authorising him to practice as a legal practitioner.
MR STOLLER: So that means he’s not allowed to call himself a legal practitioner under the general rules.
HER HONOUR: Yes.
MR STOLLER: It’s our understanding that he can still call himself a lawyer while he’s on the roll of practitioners of this court.
HER HONOUR: Okay. Is that by reason of a statutory provision or is that ‑ ‑ ‑
MR STOLLER: So, did Your Honour see the definition of disqualified person in s6 to answer Your Honour’s first question.
HER HONOUR: My apologies. I’m just bookmarking. Yes, I see. Yes.
MR STOLLER: So, he is already under (b), but he will be as well under (a) in the ‑ ‑ ‑
HER HONOUR: This order would remove any remaining entitlement to identify himself as a lawyer.
MR STOLLER: Yes, so the Legal Profession Uniform general rules of 2015 – this is to answer Your Honour’s next question, sorry.
HER HONOUR: Yes.
MR STOLLER: Is Your Honour still writing the answer?
HER HONOUR: No, thank you.
MR STOLLER: So, the Legal Profession Uniform general rules of 2015 at reg 9, rule 9, contains – rule 9 is titled, ‘Entitlement to certain titles.’
HER HONOUR: All right.
MR STOLLER: And item 12 is the title ‘Lawyer’ and the person who can call themselves a lawyer is an Australian lawyer in all circumstances and then that takes one back to the s6 that I just took Your Honour to of the Uniform Law, wherein Australian lawyer is defined as, ‘Australian lawyer means a person admitted to the Australian Legal profession in this jurisdiction or any other jurisdiction. So, when you’re admitted, you’re entitled to call yourself – you’re an Australian lawyer and you’re entitled to call yourself a lawyer.
HER HONOUR: I see, thank you.
MR STOLLER: Yes, and then I’m grateful to my instructor, ss11 and 12 of the Uniform Law provide a prohibition on representations by those unable – who are not entitled to use those titles.
HER HONOUR: Yes thank you. I don’t have any further questions. If there’s nothing further, I just wanted to ask one question of my associates before I adjourn.
MR STOLLER: Yes.
HER HONOUR: Yes, I have nothing further, so I’ll reserve my reasons in this application and I’ll adjourn the court until 2.15.
MR STOLLER: As the court pleases.
HER HONOUR: Thank you.
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