Daniel Deeks seemed such nice person; quietly spoken, friendly manner, and he seemed to know his stuff. As a licensing officer dealing with the renewal of Practising Certificates for lawyers, Mr Deeks could quote chapter and verse the Legal Profession Uniform General Rules 2015 (Vic). When Mr Deeks telephoned me to tell me that my renewal had not been processed because I had not checked a particular box in my online Practising Certificate renewal application form, I explained to him that I hadn’t realised that I was supposed to check it in the circumstances. Just one of those little glitches one can experience with online forms.
Another lawyer had complained about my confronting him over a questionable business strategy, and Mr Deeks explained that I should have checked the box relating to complaints the Victorian Legal Services Commissioner (VLSC) was not aware of. I told Mr Deeks that the VLSC had initiated an investigation into the complaint, and therefore he was well aware of it.
Mr Deeks accepted my explanation, but went on to say that his office still required that the box on the form should be checked. I asked him to correct it for me so that my renewal application could be processed, but he told me that I would have to send him an email requesting the amendment. I sent the requested email that same day.
Daniel Deeks – Recorded Telephone Conversation #1
A few days later, feeling uneasy about the unusual circumstances surrounding Mr Deeks’ telephone call, I called him back to clarify the situation. Because I was suspicous about what was transpiring, I recorded our conversation. You can listen to a recording of my telephone conversation with Mr Deeks by clicking on the audio file below. To read a transcript of the telephone conversation, with important parts highlighted [CLICK HERE].
Relevant points gleaned from Telephone Conversation #1:
- The previous year was the same situation, with an open complaint which was of a more serious nature (and which was subsequently dismissed).
- My Practising Certificate had not been withheld the previous year.
- I had lodged a formal corruption complaint against the Victorian Legal Services Commissioner and a number of VLSC staff.
- My complaint against the VLSC was being investigated by the Victorian Ombudsman, and was still open.
- I complained to Mr Deeks that I felt that my Practising Certificate was being withheld in order to exert pressure on me because I had complained to the Victorian Ombusdman about the VLSC.
- I complained to Mr Deeks that I felt that the VLSC was threatening my Practising Certificate in order to do some form of ‘deal’ with me.
- Mr Deeks told me that he expected that no decision would be made about my Practising Certificate until the open complaint had been resolved.
- Mr Deeks was of the view that if the VLSC was conflicted by his currently being the subject of an open complaint lodged by me, then “the decision has to be made by someone else“.
I believe it was quite clear to Mr Deeks that I was making a very serious allegation and complaint about the Practising Certificate renewal process, indicating that the process was being manipulated by the VLSC in retaliation for my having lodged a formal complaint against him and his officers with the Victorian Ombudsman.
I believe that Mr Deeks would also have been aware that my complaints amounted to allegations of Misconduct in Public Office, and possibly the criminal offence of Perverting the Course of Justice, as well as disciplinary offences and breaches of ethics and acceptable standards of conduct. I also believe that it was fair to expect that Mr Deeks would have taken steps to ensure that my complaints were dealt with appropriately.
It would also have been obvious to Mr Deeks that I perceived a conflict of interests regarding the involvement of the VLSC (Mr Michael McGarvie) in the Practising Certificate renewal process, and that this was a stand-alone issue that had to be specifically addressed.
I asked Mr Deeks why the renewal of my Practising Certificate was being treated differently from the way it was dealt with the previous year, and he told me he would get back to me on this.
True to his word, Mr Deeks called me back to explain the difference between the way my Practising Certificate renewal was handled the previous year as compared with what was happening this year.
Daniel Deeks – Recorded Telephone Conversation #2
In this second telephone conversation Mr Deeks confirms the proper procedure for the renewal of a Practising Certificate where a complaint is yet to be resolved. He also confirms that I have nothing to worry about regarding my Practising Certificate, as I am deemed to hold a Practising Certificate until after VCAT has made a decision on the open complaint. You can listen to a recording of this telephone conversation with Mr Deeks by clicking on the audio file below. To read a transcript of the telephone conversation, with important parts highlighted [CLICK HERE].
Relevant points gleaned from Telephone Conversation #2:
- At first, Mr Deeks indicates that the Practising Certificate renewal protocol was different the previous year.
- Mr Deeks then suggests that my previous renewal application may have somehow ‘just slipped through‘.
- Mr Deeks then implies that there was a problem with the cross referencing of information from the Commissioner’s office, and that this might explain why I was not followed up the previous year.
- Mr Deeks then says that no decision has been made regarding the renewal of my Practising Certificate, and that he does not know whether Mr McGarvie will be involved because of the conflict of interests arising from my having an unresolved complaint against Mr McGarvie with the Victorian Ombudsman.
- Mr Deeks suggests that the decision may have to be made by a delegate other than Mr McGarvie.
- Mr Deeks confirms that the only decision to be made at this point is whether my Practising Certificate is to be immediateley renewed, or the renewal will be delayed until the outcome of the pending VCAT hearing is known.
- Mr Deeks further confirms that I would not have to try to justify having my Practising Certificate renewed until after the VCAT hearing.
Of particular interest is this exchange after Mr Deeks told me that I could complain in writing about the procedure:
“The legal services commissioner is in a position of conflict and yet he still has people over whom he has supervisory authority making decisions. But they’d be making a decision with one eye on him as their supervisor.”
“I really can’t comment on their position to comment on that but what I would say is if you have got those concerns you can put them in writing.”
“But who would I complain to given that McGarvie is the head of the place and he’s the one who stands accused, and he’s the one who’s in a position of conflict? Who would I complain to about him being in that position of conflict … Because, I mean, obviously the guy is not recognising that conflict himself. Either that or he recognises it but he’s chosen to ignore it. Which just compounds the situation because if he’s in a position of conflict and refuses to step aside it indicates that he’s very, very, determined.”
“If the commissioner isn’t making the decision it can always go to the board and then the board can assess the renewal application if necessary. So, that will be, I don’t quite remember how many people are on the board, but I think roughly eight individuals. And they will make the determination.”
A Nasty NIGYSOB Game?
Ostensibly the VLSC relies on the checkbox and associated notes in the online Practising Certificate renewal form to ensure that a practitioner who is under investigation by some other authority (perhaps police, IBAC, ASIC etc.) discloses that investigation to the VLSC. However, where an investigation has been commenced by the VLSC it is obvious that the VLSC already has notice of it, and therefore it should not require further disclosure. Indeed, as Mr Deeks confirms, the VLSC cross references investigations with renewal applications.
It appears that the Practising Certificate renewal process has become something of a “NIGYSOB game“, whereby the VLSC asks the practitioner if there is an open investigation that the VLSC is not aware of, and then pounces on the practitioner if the disclosure checkbox is left unchecked.
In this case it must have been obvious to Mr Deeks that I had not checked the box because I believed that the VLSC was aware of his own investigation, and that I had simply followed the same procedure as was accepted by the VLSC the previous year. The most that should have happened in relation to the checkbox was that Mr Deeks should have accepted my explanation for not checking it, and ended the matter there.
Then came “ANNEXURE A”.
Daniel Deeks and “ANNEXURE A”
To my horror, I then received a 2 page letter, signed by the then Legal Services Commissioner, Mr Michael McGarvie, stating that he had formed the view that I was not a ‘fit and proper’ person to hold a practising certificate. To read a copy of the letter [CLICK HERE].
Attached to the letter was a 10 page document titled “ANNEXURE A – REASONS FOR PROPOSED DECISION”. As I read through the letter and the purported ‘reasons’ I realised that what Mr Deeks had told me in our telephone conversations was completely at odds with what appeared in the attached ANNEXURE A.
It seemed that whoever had prepared ANNEXURE A had not spoken to Mr Deeks, had misinterpreted and misunderstood the true circumstances of my renewal application, and had created a monster of a document that was utterly unreliable. The fact that Mr McGarvie had attached the document to his letter, despite the discussions I had had with Mr Deeks regarding Mr McGarvie’s conflict of interests, further demonstrated to me that Mr Deeks could not have been consulted and that Mr Deeks had not disclosed the details of our conversation or the serious complaints I had made about the renewal process.
I noted that the letter indicated that any questions relating to it should be directed to Daniel Deeks. However, given the disparity between my discussions with Mr Deeks and the “Relevant Facts” appearing in ANNEXURE A, I felt that I needed to talk to the person who had drafted ANNEXURE A. To read a copy of the “Relevant Facts” as they appear in ANNEXURE A [CLICK HERE].
Daniel Deeks Exposed
It took some time for me to discover who it was that had drafted ANNEXURE A. I wrote to Assistant Licensing Officer, Ms Elles Anthony requesting details of the author of ANNEXURE A. At first, the most Ms Elles would tell me was, that the views voiced in the letter and ANNEXURE A “are those of this office and the Commissioner“.
I persisted in my request for the identity of the author of ANNEXURE A, and eventually I received an email from Assistant Manager, Licensing Ms Sara Abelardo:
“I confirm that Daniel Deeks prepared Annexure A – I point out that he is clearly identified in our correspondence as the person primarily handling this matter.”
Something was not right. It appeared that something or someone may have intervened to cause Mr Deeks to change his attitude towards me, his approach to my renewal application and (as I would later find out from Mr McGarvie), his version of our conversations!
The Content of Mr Deeks’ ANNEXURE A
Mr Deeks’ Failure to Consider Serious Complaints and Allegations
When a complaint is made to an officer of a regulatory body that an investigation has been compromised by alleged misconduct on the part of an investigator, it is common-sense that someone in authority should be informed. It appears that Mr Deeks, while becoming quite aware that numerous complaints and allegations were being generated by the investigation into Mr Green’s second complaint, failed to report the matter to anyone other than those against whom the complaints and allegations had been made.
It seems that Mr Deeks had taken it upon himself to decide that none of my complaints or allegations should be reported or investigated. Alternatively, Mr Deeks may have collaborated with others and participated in covering up the complaints and allegations. What is certainly known, is that Mr Deeks declared my complaints and allegations to be “Inappropriate communications with the Commissioner’s office“, implying that the making of a complaint against the VLSC or his officers is conclusive evidence that one is ‘not fit and proper’ to remain in the legal profession. To read a copy of the “Inappropriate communications with the Commissioner’s office” [CLICK HERE].
When Is An Investigation Not An Investigation?
Mr Michael McGarvie and Ms Fiona McLeay, in their roles as Victorian Legal Services Commissioner, have both relied on an extremely broad interpretation of Section .263(4)(c) of the Legal Profession Uniform Law Application Act 2014 (Uniform Law), which they claim prevents their staff from being investigated. They also claim that the Uniform Law does not give the VLSC ‘jurisdiction’ to report criminal conduct perpetrated by VLSC officers to Victoria Police or to IBAC.
Without delving into the reasons why such an interpretation is absurd, it is possible to view the absurdity from a practical and common-sense position. Consider this proposition:
If the VLSC cannot conduct an investigation into the conduct of VLSC staff, then VLSC officers accused of misconduct cannot have adverse findings made against them. Conversely, it is equally impossible for the VLSC to conclude that complaints and allegations made against VLSC officers are unfounded or lack a proper basis.
And yet, both Mr McGarvie and Ms McLeay have had no trouble in exonerating VLSC officers on the basis that complaints are unfounded or lack a proper basis. With such a determination having been made, the VLSC is apparently free to accuse the complainant of having made unsubstantiated allegations. Or, as Mr Deeks describes them in ANNEXURE A, “Inappropriate communications with the Commissioner’s office”.
Thus, it is possible for the VLSC to refuse to conduct an investigation into a complaint, and then to conclude (on the basis of the non-investigation) that the complaint has no merit, and that the complainant is guilty of misconduct!
Conspiracy To Pervert The Course of Justice
On 25 May, 2017, in what appears to have been a spontaneous and angry response to a complaint I had made against him, Mr Luke Priday emailed me a letter in which he advised,
“…we require a written statement explaining why…you consider yourself to be a fit and proper person to hold a practising certificate.
Your written statement is required by 22 June 2017.”
It was only a few days after the deadline of 22 June, 2017 that I received the letter from Mr Daniel Deeks with ANNEXURE A attached. This is what alerted me to an apparent collaboration between Mr Priday and Mr Deeks. I believe that the two colluded in developing a strategy to manipulate the Practising Certificate renewal process in retaliation for my having lodged complaints.
(to be continued…)