Marilyn Warren – The Corrupting of a Supreme Court Chief Justice
Marilyn Louise Warren – Corrupt former Chief Justice
Those who seek to protect Marilyn Warren, her status and that of the Supreme Court of Victoria, have falsely asserted that my allegation of corruption has never been substantiated. This assertion relies on the fact that all attempts to have my complaints and allegations investigated have been thwarted by those who were actually duty-bound to investigate and report (see also IBAC’s – Mandatory Notifications directions).
It has been left to me, as both a victim of corruption and whistleblower, to gather and present the evidence on which I base my accusation that former Chief Justice Marilyn Warren aided and abetted the covering up and laundering of corruption through the Supreme Court of Victoria.
[For an examination of the broad concept of "corruption" and its application to the conduct described in this article, click on the the blue "corruption" hyperlink.]
Introduction
On 29 May, 2012 I wrote to Warren in her capacity as Chief Justice in an effort to prevent the laundering of corrupt conduct through her Court. I expected that Warren, when confronted with allegations of the most serious kind, would conduct herself with honour and with dignity, and deal with the matter in a manner befitting her standing as the highest ranking Judge in Victoria.
Instead, Warren made no effort to substantiate or refute my complaint but, in effect, ran her own little secret “trial” to falsely find that I had committed a disciplinary offence simply by lodging a complaint in accordance with the procedure set out in a document titled “Supreme Court of Victoria Complaints“, published on the Supreme Court of Victoria website. Having falsely decided that I was guilty of a disciplinary offence, Warren then betrayed me in the most despicable manner. After telling me in writing that she would be taking no further action on my complaint, she secretly wrote to her friend and former colleague, Michael McGarvie (who had been appointed as Victorian Legal Services Commissioner), in order to have me formally discredited and disciplined.
These insidious actions (see under “Judicial Corruption” at Corruption – Such A Dirty Word) on the part of Warren had profound effects; largely because of her standing as Chief Justice of the Supreme Court. What began as a “cover-up” has snowballed over the years, spawning further corruption across the offices of the Victorian Legal Services Commissioner, Ombudsman Victoria, Law Institute of Victoria, IBAC, VCAT and back into the Supreme Court.
(Navigate using the heading links below and the up-arrows at the left of the page)
- What happened to the Contempt of Court charge?
- The Legal Service Commissioner’s lack of jurisdiction
- McGarvie’s bogus investigation
- VCAT warned of corruption laundering
- Ending the “crusade” and moving on
Background to my corruption allegation
It all started off with my complaint to then Chief Justice (Marilyn Warren) that I had been the victim of corrupt conduct on the part of the Director of Consumer Affairs Victoria, that this corrupt conduct had been “laundered” through the Court of Justice Michael Sifris, that the Director of Consumer Affairs was about to initiate a false charge of Contempt of Court against me, and that I wished to ensure that Justice Michael Sifris would not deal with the false charge of Contempt of Court as I had experienced bias and incompetence on the part of Justice Michael Sifris during The Mericka Case. (Each of these issues will be dealt with in detail in forthcoming posts.)
The simple question arising in relation to Warren is whether or not I was entitled to lodge a complaint. In her role as Chief Justice, Warren decided that I had done something wrong, merely by lodging my complaint, and that this wrongdoing was so serious that it should be the subject of a complaint, by her, to her friend the Victorian Legal Services Commissioner, Mr Michael McGarvie (former CEO of the Supreme Court and Warren’s colleague during his tenure in that office).
The Chief Justice referred the matter to the Victorian Legal Services Commissioner in bad faith, resulting in my being wrongly charged with disciplinary offences, being bullied, harassed and gaslighted over the following decade, and ultimately forcing me to publicise the corruption I had experienced.
My complaint to the Chief Justice
Why I lodged a formal complaint with the Chief Justice
There were numerous reasons for my lodging a formal complaint with the Chief Justice.
I was advised to do so by my lawyer
I was the victim of a criminal blackmail attempt by Dr Claire Noone and Mr Blair Ussher of Consumer Affairs Victoria. (This is the subject of another posting, but briefly, Noone and Ussher had pressured me to pay for advertising that they wanted posted in daily newspapers under the threat that they would initiate a false charge of Contempt of Court if I did not do as they demanded. I had refused to be blackmailed, and I was waiting for the false charge to be laid. My lawyer, Mr Tim Dixon of Stynes Dixon Lawyers, warned me that the false charge related to Justice Sifris’ court, and that he would most certainly find me guilty due to his clear bias in The Mericka Case.) As the Vasta case demonstrates, it is easy for a judge to find a person in contempt of their court, and judicial immunity will usually apply, even if it is later found that the finding was unwarranted.
Mr Dixon told me that Justice Sifris was corrupt, that he had simply rubber-stamped a pre-determined finding in The Mericka Case, and that I could expect him to do the same with the Contempt of Court charge. He also warned me that Contempt of the Supreme Court was an extremely serious matter and that I would be struck off if Justice Sifris were to find me guilty.
Mr Dixon advised me to write to the Chief Justice and request that another judge be appointed to hear the false Contempt of Court charge. He advised that this approach would give us a “Plan B”. If the Chief Justice were to allow Justice Sifris to hear the Contempt of Court charge our “Plan B” would entail having Justice Sifris to recuse himself, with my letter to the Chief Justice confirming an apprehension of bias.
When I asked Mr Dixon to write to the Chief Justice on my behalf he told me that I should write personally, as the victim of an attempted blackmail. He also advised me against saying that Justice Sifris was corrupt, and that I should instead describe him as biased and incompetent as there was plenty of evidence of this in his judgement in The Mericka Case. (Mr Dixon feared using the word “corrupt” as it might cause panic, and result in some form of forceful push-back. Although I was having doubts about Mt Dixon’s courage in dealing with my matter, I followed his advice.) It was also suggested by Mr Dixon that I should attach to my letter a copy of my earlier corruption complaints lodged with the Minister for Consumer Affairs and the Victorian Ombudsman, as these would provide important background to the matter and demonstrate that it was actually part of an ongoing corruption issue.
I wanted to avoid a false Contempt of Court charge
Even if Mr Dixon had not advised me to write to the Chief Justice, I was personally keen to do what I could to avoid being convicted of a false Contempt of Court charge. The right to lodge a complaint directly with the Chief Justice as per the “Supreme Court of Victoria Complaints“ procedure, published on the Supreme Court of Victoria website was an avenue available to me.
I wanted to see a proper investigation commenced
My corruption complaints against Dr Claire Noone and Consumer Affairs Victoria had been referred by the Ombudsman back to Dr Noone to deal with. Obviously, Dr Noone was unlikely to find any wrongdoing on her part or that of those who supported and assisted her. It seemed to me that alerting the Chief Justice to what was becoming a growing tumour in the Justice Department would prompt her to initiate a proper investigation, not only into the false Contempt of Court charge, but also the conduct of Dr Noone and Consumer Affairs Victoria in using Justice Sifris’ court to launder their corrupt conduct.
I wanted to see justice done
I knew that I could easily defend the false Contempt of Court charge in a court other than that of Justice Sifris. After all, the charge was false and would be easily defeated so long as it was not dealt with by Justice Sifris (according to Mr Tim Dixon). With the false charge dismissed, questions would be raised about it, which would lead to further questions regarding the conduct of The Mericka Case and the improper means by which it was put before Justice Sifris.
I had no doubt that a proper investigation would result in criminal charges being laid against a number of officers, as well as findings of corruption.
It was the only option available to me at the time
According to my lawyer, the lodging of a complaint in accordance with the procedure set out by the Supreme Court was the only option. I was advised that the appeal process was not available for such matters and that unusual situations involving the conduct of a judge or an anticipated perverting of the process should be put directly to the Chief Justice.
My right to complain to the Chief Justice
Chief Justice Warren took the position that I had no right whatsoever to lodge a complaint against a sitting Judge of the Supreme Court and that this, and nothing more, warranted action on the part of the Victorian Legal Services Commissioner.
The way the Chief Justice expressed this supposed prohibition was her comment to the Victorian Legal Services Commissioner that my letter of complaint, “…raises concerns in that a member of the legal profession has made remarks of that nature against a judge of the Court. In the circumstances, it may be a matter for the consideration of the Commission.” These comments by Chief Justice Warren implied that I had no right as a member of the legal profession to draw her attention to the conduct of a judge of the Court, and that the content of my complaint (euphemistically referred to as “remarks“ by Chief Justice Warren) were of a nature that was somehow improper.
I believe that Chief Justice Warren’s reasoning was not only bad law, is was also proffered in bad faith, as Chief Justice Warren knew I was entitled to lodge a complaint. Chief Justice Warren also knew that a complaint, by its very nature (to use her word) makes adverse comments about some action or conduct of a person (if it does not do so it is not a complaint). That is all my correspondence did. There was no rational basis for my complaint to have attracted disciplinary action. This is emphasised when one considers that Chief Justice Warren could easily have conducted a preliminary investigation to determine whether or not there was a sound basis to my complaint.
Let us examine this in further detail.
The nature of my complaint
The nature of my complaint was quite simple. I had experienced corruption perpetrated by Dr. Claire Noone, Director of Consumer Affairs Victoria in collaboration with her General Counsel Mr. Blair Ussher. This corruption had been laundered through the court of Justice Sifris, and I had been encouraged by my legal team to do something about it. Before I was in a position to deal with the corruption I received a blackmail letter penned by Mr. Blair Ussher on instructions from Dr. Claire Noone, which threatened Contempt of Court proceedings, which would have been heard by Justice Sifris. As Justice Sifris was regarded by my legal team as biased, incompetent and therefore corrupt, I was advised to write to Chief Justice Warren in order to ensure that a judge other than Justice Sifris would hear the Contempt of Court matter. This was explained to Chief Justice Warren so that she would understand the seriousness of the matter, and the need for her to at least look into it. Obviously, these were serious allegations and they warranted further examination.
I would suggest that the need to report an allegation of wrongdoing or a likelihood of wrongdoing being done in the future rises in proportion to the seriousness of the wrongdoing.
Jurisprudential basis
The first observation to make is that I was neither the investigator nor the judge; I was the complainant. To justify the making of a complaint all I needed was sufficient information to justify my belief that my complaint was reasonable. Determining whether or not my complaint was in fact reasonable was the duty of the person to whom the complaint was made. A function of the Chief Justice is to be responsible for the running of the Court. Therefore, it was perfectly proper for any person to make a complaint about a judge to the Chief Justice so that the complaint could be investigated.
An investigation is the way a complaint is confirmed as having a proper basis, or redefined as a misunderstanding, or refuted as being false or vexatious. If the complaint is confirmed, then the complainant is lauded as having contributed to a just outcome. If the complaint is found to have been a mistake, then the complainant may still be lauded as having acted correctly in bringing the matter to the attention of persons in authority. If the complaint is refuted as being false or vexatious, then the complainant should face consequences for his/her misconduct.
Furthermore, the right to complain to a proper authority is, as a matter of jurisprudence, an inherent right of the citizen. In any event there were two specific legal supports to my right to lodge a complaint with Chief Justice Warren:
- The invitation for dissatisfied persons to complain about judges, that was set out in a document titled “Supreme Court of Victoria Complaints“, published on the Supreme Court of Victoria website; and
- The statutory right to petition the Crown in its legislative capacity as the Crown in Parliament, in its judicial capacity that is exercised by the Queen’s judges (such as the Chief Justice) and in its executive capacity as exercised by the Queen’s Ministers of State. This right is enacted in the Bill of Rights 1689, which states: ‘That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal‘.
The invitation to complain
Chief Justice Warren had invited me to lodge a complaint through the document titled “Supreme Court of Victoria Complaints“, published on the Supreme Court of Victoria website. This document states, “There may be occasions, however, where a person is concerned not with the decision made but with the conduct of a Judge or Associate Judge. Such concerns can be raised in writing with the Chief Justice.“
On the advice of my lawyer, I wrote a discrete letter to the Chief Justice giving both the reason for my lodging my complaint, and some background, in the expectation that I would be contacted with a request for further information on which an investigation could be based. My letter set out my concerns about Justice Sifris; concerns that the Chief Justice acknowledged were “serious“. (The conduct of Justice Sifris and my serious concerns about his conduct and his conduct will be examined in detail in a forthcoming posting. In the meantime, my letter to the Chief Justice can be viewed via the following link: Letter to Chief Justice 29 May, 2012).
Furthermore, it was not open to the Chief Justice to provide me with an avenue of complaint, receive my complaint, and then condemn me for having lodged my complaint. This is confirmed by the legal maxim expressed in the Latin tag as quod approbo non reprobo. This translates to “that which I approve, I cannot disapprove”. It is commonly expressed in the notion that a person cannot simultaneously approbate and reprobate. In plainer language it means they cannot simultaneously accept and reject. In this context it means that the Chief Justice cannot invite complaints then seek to punish a person for making a complaint. Let us apply this to The Mericka Case. Here is the conflict:
- Approbation – On the one hand, the notice of the Supreme Court website, which must have been approved by the Chief Justice, invites people to complain to the Chief Justice about the conduct of a judge.
- Reprobation – On the other hand, there is reprobation in The Mericka Case. I complained to the Chief Justice alleging that a judge engaged in corrupt conduct. From the facts as far as I know them, the Chief Justice did not make a proper investigation of this complaint. Specifically, the Chief Justice did not invite me to explain the basis of my allegation. At face value the actions of the Chief Justice lead to the conclusion that she is in no way concerned about corruption in the Supreme Court.
- Outcome – The Chief Justice writes to the Victorian Legal Services Commissioner (the former CEO of the Supreme Court and colleague of the Chief Justice) implicitly requesting that disciplinary action should be taken against me, as the complainant. It should be emphasised that, by its very nature, a complaint makes adverse comments about some action of some person. It if does not do so it is not a complaint. That is all that my letter did. There was no rational basis for my letter of complaint (in the absence of an investigation to determine whether or not it had a sound basis) to have attracted disciplinary proceedings.
Right to petition the Crown
According to the House of Commons Information Office,
“A petition is a formal written request from one or more people to the Sovereign, the Governmentor to Parliament. The right of the subject to petition the Monarch for redress of personal grievances has probably been exercised since Saxon times. It was recognised in Magna Carta and more explicitly in an Act of 1406. (Rotuli Parliamentorum (7 & 8 Hen. IV, No 63). The Bill of Rights of 1688 restated that right in unambiguous terms, ‘ … it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal’. (1 Wm. & Mary (Sess 2) Cap 2)“
Further, the following propositions explain the legal basis of the right to petition the Crown in Victoria in relation to the Chief Justice:
- The English statute called the Bill of Rights 1689 was received into the eastern half of Australia on settlement by the British on 26 January, 1788.
- Britain subsequently enacted the Australian Courts Act 1828. Section 24 of this Act state that the common law and statute law of England was received into the eastern part of Australia as from 25 July, 1828 so far as it was applicable. Section 24 replaced the common law rule as the basis for the reception of English statute law (and common law) into the four eastern states namely Queensland, New South Wales, Victoria and Tasmania.
- Section 5 of the Imperial Acts Application Act 1980 (Vic) makes a general repeal of British statutes in “so far as they are in force in Victoria”, but this is subject to some savings provisions. Section 3 is one of the savings provisions. Section 3 provides as follows: “The enactments mentioned in the Schedule to the extent set out in Part II. shall continue to have in Victoria whether separately or in combination with any repealed enactment or statutory provision such force and effect, if any, as they had at the commencement of this Act.”
- Part II of the Schedule contains a heading “[1688] I William and Mary Sess. II (Bill of Rights) c. II“. Section 5 of this statute is cited in Part II of the Schedule as an enactment that is excluded from the general repeal of British statutes. Section 5 provides as follows: “That it is the right of subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal”.
- Under British constitutional law the Crown is the “Fount of Justice”. By long standing practice, and based also on a decided case, the King cannot hear cases in person (Prohibitions del Roy (1607) 77 ER 1342, 12 Co Rep 64)
- This part of British constitutional law and practice applies in Victoria. This means that Chief Justice Warren was the chief representative of the Crown in the judicial sphere of government.
Application of the right to petition
My matter arose on the basis that I wrote to the Chief Justice of the Supreme Court of Victoria by letter to the Chief Justice 29 March 2012 complaining about the past conduct of a judge and the likelihood of such conduct continuing in the future, seeking relief. This falls within Section 5 of the Bill of Rights 1689 because:
- I am a subject of the Crown;
- The Chief Justice of Victoria is a delegate and representative of the Crown; and
- My letter of complaint constituted a petition because it sought redress of a grievance.
In short, I was exercising an ancient and hallowed right to seek redress of something that I had determined was a source of grievance.
Chief Justice’s duty to investigate
I have established that I had the right to complain to the Chief Justice about a judge because I believed there to be reasonable grounds for the making of the complaint. Of course, it was up to the Chief Justice to determine for herself the validity of my complaint, a process that necessitated at least a preliminary investigation. As there was no set procedure for investigating such complaints, the Chief Justice could decide as she wished, provided of course that she acted in a manner that was fair and reasonable.
I was pleased to have received a reply to my complaint letter by way of an email from Ms Vivienne Macgillivray, Executive Associate to the Chief Justice on 15 June 2012. The email stated that my letter of complaint was, “receiving consideration“. I understood this to mean that the Chief Justice, in accordance with my right to petition the Crown and the process set out in “Supreme Court of Victoria Complaints“, would determine how my complaint should be dealt with.
The central task in dealing with a complaint involves ascertaining whether there are facts to support the complaint, and evidence to prove those facts.
In my letter to Chief Justice 29 May, 2012 I set out my complaint in the first two paragraphs, and provided comprehensive background contained in copies of letters of complaint lodged with the Ombudsman Victoria and others prior to The Mericka Case having been heard by Justice Sifris. Having received my complaint and supporting material the Chief Justice was obliged to look into the matter – in other words to commence an investigation. Initially the investigation may have gone no further than a request that I should provide further information, facts and evidence and an indication of other avenues of enquiry that might have assisted the investigation.
It was my expectation that I would receive a telephone call from an officer of the Supreme Court, perhaps requesting a face-to-face interview in order to further assess the validity of my complaint. As a former Victoria Police detective I understood that whenever a serious complaint is received the very least that should be done in the initial stages is a face-to-face interview. This gives the investigator the opportunity to assess both the complaint and the complainant in order to determine whether or not the complaint is prima facie valid and, if so, what further evidence and investigation may be required. At the very least, I expected that I would be asked to furnish further information to assist in an investigation.
Referring again to the process set out in “Supreme Court of Victoria Complaints“, I was entitled to have the Chief Justice make a determination on my complaint. Thus, the Chief Justice had a positive duty to actually investigate my complaint, and then to make a determination.
The Chief Justice did not investigate my complaint. (But see below “The Chief Justice holds a secret trial“)
Some observations regarding the judicial complaints system in Victoria
In his paper titled “We need a better way of judging the judges” Trevor Hoffman refers to a paper delivered by Chief Justice Marilyn Warren as acknowledging complaints against judicial officers as being either minor complaints (which are dealt with internally) or serious complaints which should be referred to the Attorney General for investigation. [Recall that the Chief Justice in her letter dated 23 August, 2012 described my allegations as “serious“. She did not dismiss them as minor or unworthy of investigation, but indicated that there had been some form of investigation on which she based a determination that allowed her to state that they were “emphatically denied“. Further, Warren did not simply dismiss the allegations as “minor” or otherwise unworthy of investigation, she had somehow concluded that they were false or otherwise unfounded, and that disciplinary action by the Victorian Legal Services Commissioner was warranted.
Hoffman makes some interesting observations regarding judicial complaints in Victoria in his paper, notably the following:
“…obviously every complaint is not minor, and the consequences of failing to investigate complaints, especially serious, specific, and articulate complaints, are potentially ridden with hazard. One cannot help but wonder where is the great difficulty in the straightforward investigation of a complaint?”
and
“Given that any half-competent researcher, irrespective of whether they had legal training, could quickly and easily verify or refute the allegations, one would have thought that some sort of examination was in everybody’s interests, even if just to clear the air. The integrity of the Supreme Court is too important, for too many reasons, to allow complaints containing grave allegations of misconduct to go unanswered.”
and
“To expect the Victorian public to have confidence in its courts when they operate within a complaints system that refuses to investigate complaints, especially serious ones, is not only unreasonable, and inequitable, it is totally out of step with the modern world. In this day and age there are effective complaint mechanisms in place for almost every product, service, trade, craft or profession one can think of, many of them highly refined.”
and
“Litigation is serious business, and litigants, like consumers of any other expensive product, have every right to expect they will be served by the highest standards. Anything less in an Australian legal system is unacceptable. When litigants point to specific irregularities or flaws in the process, and exercise their right to complain, surely they are entitled to expect their complaints will be seriously considered?
The cost of conducting civil cases in the higher courts runs into hundreds of thousands of dollars; litigants can not be expected to pay that kind of money for a system that not only delivers a flawed product, but refuses to even consider the possibility that a flaw exists. It is difficult to imagine any other profession or trade tolerating a situation that sees itself so completely unaccountable.
It is appropriate now to enquire as to just how a judicial complaints system that refuses to look into the most serious allegations of judicial misconduct could be tolerated in a sophisticated society.”
How the Chief Justice dealt with my complaint
My letter to the Chief Justice 29 March 2012
I was under a blackmail threat from Mr Blair Ussher, General Counsel, Consumer Affairs Victoria (acting on behalf of Dr. Claire Noone). Mr Ussher had made it quite clear to me that false charges of Contempt of Court would be brought against me unless I acceded to his demands.
Mr Ussher had demanded that I re-publish newspaper advertisements, purportedly over an insignificant font issue, which would have cost me many thousands of dollars. While the cost of obeying Mr Ussher was enormous financially, it would also entail a false admission to the allegation of my being in contempt of the Supreme Court. I refused to be blackmailed in this way, and had my lawyer inform Mr Ussher that his demands would not be met. Mr Ussher then telephoned my lawyer and threatened to “crush” me.
Because of the circumstances and content of the blackmail threat, together with verbal threats Mr Ussher had made to my lawyer, I had considered it most unlikely that Mr Ussher was acting alone (I reasoned that it would not be possible for Mr Ussher to make such threats and to carry them out unless he had received the nod from higher authorities).
My lawyer told me that any Contempt of Court charges would be heard before Justice Sifris. Given my experience before Justice Sifris in The Mericka Case, the views of my legal team regarding the pre-judging of the case and what I regarded as unduly harsh and unjust treatment by the Judge, I was prepared to have the false charges dealt by any Judge other than Justice Sifris.
I really wasn’t sure who I could trust in the circumstances. Nevertheless, with the certainty of false charges proceeding, I had to do something.
On 29 May, 2012 I wrote to the Chief Justice, detailing my concerns (see the Supreme Court’s judicial complaints process). I also enclosed copies of other correspondence that I felt may give the Chief Justice some insight into the situation. [View my letter to the Chief Justice dated 29 May, 2012].
On 15 June, 2012 I received an email from Ms Vivienne Macgillivray, Executive Associate to the Chief Justice, acknowledging receipt of my letter, and advising that it was “receiving consideration”. [View the email of 15 June, 2012]
I expected that I would soon receive a telephone call from someone appointed by the Chief Justice to investigate the matters complained of, and that I would be asked to meet with the investigator and to elaborate on my complaints.
I received no further communication from the Chief Justice regarding my letter. For the next two months I assumed that the Chief Justice was making enquiries of her own, perhaps taking advice on how to approach the matter, whom to appoint as investigator and what further information she would want from me.
Although I also considered the possibility that I could suddenly be confronted by a process server with Contempt of Court charges (my experience was that Consumer Affairs Victoria favours the “ambush” approach, rather than letting a victim know what is going on or what is in store for them), I believed that my writing to the Chief Justice may have forced Consumer Affairs Victoria to await the outcome of the Chief Justice’s investigation.
[I feel that I should mention at this stage that I had also written to the The Hon. Michael O’Brien, Minister for Consumer Affairs the day after I wrote to the Chief Justice. I had hoped to have Mr Ussher replaced, at least as far as his involvement in my matter was concerned. I opened my letter to the Minister with the following observation:
“On 18 December, 2009 I wrote to your predecessor regarding my concerns about the conduct of Consumer Affairs Victoria…Mr. Robinson did little more than to deliver me into the hands of those about whom I had complained. The result has been a concerted and determined effort, led by Dr. Claire Noone and her General Counsel, Mr Blair Ussher, to bring about the total destruction of my business, my reputation and my financial security.” [View my letter to the Hon. Michael O’Brien, Minister for Consumer Affairs dated 30 May, 2012]
Once again, I sought a full and impartial investigation. Under the heading “Appointment of Independent Investigator” I made the following plea:
“I request that an independent investigator should be appointed to deal with this matter.
I would suggest that the Auditor General would be most appropriate, as the allocation of funds to Dr Noone’s campaign to discredit me and to destroy my business will probably provide the first level of proof that compliance and enforcement guidelines have been ignored, avoided or misused.”
How did the Hon. Michael O’Brien deal with my further complaint and request for an impartial investigation? He did precisely what his predecessor did, and “delivered me into the hands of those about whom I had complained”, Dr Claire Noone. Of course, Dr Noone did not refer the matter for independent investigation.]
After more than two months had passed without so much as a telephone call or an email from the Supreme Court, I became suspicious. Perhaps my complaint was being ignored in the hope that I would just go away and get over it. Maybe my complaint had not made it past Ms McGillivray, and the Chief Justice knew nothing about it. I could smell a rat.
A follow-up telephone call to the Supreme Court
On 15 August,2012 having received no response to my letter of 29 May, 2012, I made a telephone call to the Supreme Court of Victoria and spoke to a person I believe to have been Ms Vivienne Macgillivray. I identified myself, referred to my letter of 29 May, 2012 and asked Ms Macgillivray when I could expect to receive a reply.
My conversation with Ms Macgillivray was quite unusual. To my astonishment, Ms Macgillivray informed me that, as luck would have it, the response from the Chief Justice happened to be on her desk at that very moment, and she was just about to post it to me. My response was something similar to, “Are you sure, that’s quite a coincidence”. I recall that Ms Macgillivray must have detected the tone of disbelief in my response. She assured me that she had only just received the letter, and that it would be sent to me in that evening’s mail.
Now, I am certainly familiar with amazing coincidences, but the chances of my ringing the Supreme Court after so many weeks of silence on the very same day as the Chief Justice’s response happens to land upon Ms Macgillivray’s desk was just a bit much. I felt that I was being lied to. I asked Ms Macgillivray to read some of the letter to me, but she refused. I asked her how many pages the letter contained, but she refused to tell me. When I asked more questions about there having been no update or further contact since her email of 15 June, 2012 Ms Macgillivray became annoyed that I obviously suspected her of lying, and refused to discuss the matter further.
Things were not off to a good start. I had written to the Chief Justice about the most serious misconduct imaginable, and after months of silence I was being given a story about an amazing coincidence. This firmed my belief that that the Chief Justice had hoped that if she were to ignore me I would eventually lose interest in the matter and just go away. It seemed to me that the story of the letter having arrived on Ms Macgillivray’s desk was something of a “Plan B”. This was confirmed for me when I received the Chief Justice’s single sentence response the following day.
The Chief Justice replies
On 16 August, 2012, the day after my telephone conversation with Ms Macgillivray, I received the Chief Justice’s reply to my letter. [View the letter from the Chief Justice dated 15 August, 2012]
The letter was dated 15 August, 2012 and was signed on behalf of the Chief Justice by Ms Macgillivray. The letter acknowledged receipt of my letter of 29 May, 2012 and stated that the Chief Justice had given it consideration. The punchline was a single sentence:
“The Chief Justice does not propose that any further action be taken with respect to the matters you raise concerning the Hon. Justice Sifris.”
I can’t say that I was disappointed; rather, I felt that this was just another lie. I was quite satisfied that Ms Macgillivray had lied to me when she said that the Chief Justice’s response had arrived on her desk the very day I happened to telephone to find out why I had received no response to my letter, and now I felt sure that I was being lied to about the Chief Justice having “considered” my letter.
I simply could not accept that the Chief Justice of the Supreme Court of Victoria would receive a letter containing the most serious allegations of corruption having been laundered through the Supreme Court, and simply dismiss it as though it were a complaint about someone parking their car in the wrong parking space. It seemed to me that Ms Macgillivray was acting as a “gate-keeper” (i.e. a personal assistant whose role it is to prevent their boss from being bothered with petty matters, and who disposes of such matters on the boss’s behalf). It seemed that perhaps Ms. Macgillivray did not appreciate the seriousness of the matters I had raised in my letter of 29 May, 2012, and that the Chief Justice was possibly oblivious to them.
My second letter to the Chief Justice
How could I ensure that the Chief Justice would actually be informed of my letter and the very serious matters raised in it? I wrote again to the Chief Justice, but this time in the belief that Ms Macgillivray would intercept the letter and attempt to deal with it in her capacity as “gatekeeper”. To ensure that this letter would eventually reach the Chief Justice, and alert her to what was going on, I sought reasons for the Chief Justice’s failure to take action and requested that my letter be placed on record as a formal complaint regarding the laundering of corrupt conduct through the Supreme Court of Victoria. [View my letter to the Chief Justice dated 19 August, 2012]
Again, I expected a telephone call from someone appointed by the Chief Justice to investigate the matters complained of, seeking further information. Instead, I received a very prompt and very final letter from the Chief Justice, signed by Ms Macgillivray.
The Chief Justice replies – but slams the door on further communication
A few days after my letter of 19 August, 2012 I received a reply from the Chief Justice. Again, upon reading this letter, I suspected that Ms Macgillivray may have been attempting to handle the entire matter on her own, pretending to be channelling the Chief Justice, but in fact shielding the Chief Justice so that the Chief Justice knew nothing of the matter at all. [View the letter from the Chief Justice dated 23 August, 2012]
The reason I suspected the communication was the extraordinary manner in which the Chief Justice was purportedly expressing herself.
The seriousness of the allegations was acknowledged
The allegations were the most serious imaginable, and there was no need to tell me this. The need to refer to them as “serious” gave me the impression that the author of the letter was offended that such serious allegations should be made, rather than concerned about the fact that a legal practitioner and an officer of the Supreme Court had felt it necessary to report them.
Emphatic denial of the allegations
The full sentence, “The serious allegations contained in your letter are emphatically denied” struck me as a child-like denial, made automatically and almost hysterically.
More importantly, however, was the fact of the denial. What was being denied? Everything? And on what basis was the Chief Justice making her denial “emphatically”? Committing herself in this way was simply ludicrous, as there is no going back from such a position. The Chief Justice had not conducted any meaningful investigation (how could she possibly have conducted any investigation without first contacting me to get all of the facts), and yet she was “emphatically” denying the “serious allegations” contained in my letter.
Of course, it is quite possible that there was some form of cursory investigation undertaken, but this would certainly have led to numerous other avenues of enquiry, rather than to a conclusion that could support such an abrupt and final denial.
A further implication of the Chief Justice’s emphatic denial is that she had pre-judged the matter. In other words, she had sat in judgement of me and the concerns I had raised, and made a decision without conducting any meaningful investigation, without properly examining the facts, and without any consideration for the consequences of such a hasty and final decision. The pre-judging of the allegations impressed me as the behaviour of someone acting irrationally and in a state of panic, rather than someone carefully considering what she had before her and deliberating on an appropriate method of dealing with it.
Reference to avenues of appeal
The sentence, “Any concerns you may have with respect to your proceeding before the Supreme Court may be pursued by way of avenues of appeal” missed the point entirely. My letter to the Chief Justice was not some form of alternative means of appealing the decision of Justice Sifris. It was a warning to the Chief Justice that corrupt conduct had already been laundered through the Supreme Court, and it was about to happen again. I was even prepared to confront it head-on if necessary, but I knew that I could not succeed if the Contempt of Court charges were to be heard by Justice Sifris. I felt that I had made this quite clear, and that the author of the letter was deliberately misinterpreting the nature of my concerns.
The Chief Justice would have been aware that the appeal period for The Mericka Case had long passed, and that an appeal was not an option. And, in any case, why would someone who complains of corruption being laundered through the Supreme Court believe that the appeal process would be any better? (On the advice of my legal team I did seek an opinion from a QC regarding the likely success of an appeal, but the conclusion was that Justice Sifris, as a single Judge hearing the matter, was able to make findings of fact which, even if they were of dubious validity, could not be appealed – only issues of law could be appealed.)
No further correspondence
“Kindly note that no further correspondence will be entered into with respect to this matter.” This final sentence of the Chief Justice’s letter struck me as particularly odd – a slamming of the door by someone in denial about the enormity of what was before them perhaps? Surely such a serious matter required at least a preliminary investigation, if only to establish the bona fides of the person who had raised it. If an interview with the complainant indicated that they were not deranged or vexatious, then surely the Chief Justice would want to get to the bottom of the serious allegations that the complainant had made.
Cutting off all further communication was not the most sensible way to put serious allegations of Supreme Court corruption laundering to rest.
Once again, I wondered if the letter was possibly the work of Ms Macgillivray acting on her own and without the knowledge of the Chief Justice. So, how could I ensure that the Chief Justice would be made aware of what was going on? How could I force Ms Macgillivray to retreat from her role as “gate-keeper” and realise that this was not an issue she could simply dispose of by herself?
I needed to ensure that Ms Macgillivray was fully aware of the enormity of the problem, and make it clear to her that recent correspondence was fuelling the fire, rather than extinguishing it. I wanted ensure that Ms Macgillivray had no alternative other than to ensure that the Chief Justice was aware of my letters and that the Chief Justice would actually take charge of the matter. On 30 August, 2012 I wrote again to the Chief Justice in a final attempt to by-pass her gatekeeper. [View the letter to the Chief Justice dated 30 August, 2012]
A final attempt to by-pass the gatekeeper
By now I was certainly sensing a cover-up. I couldn’t be sure whether Ms McGillivray was determined to remain in control of the matter or whether the Chief Justice knew what had been going on all along. All I could be sure of was that the whole situation failed the “smell test“.
My QC confirms his view that The Mericka Case had been pre-determined
It was at this time that I received an unsolicited and unexpected email from my lawyer, reinforcing the view of my legal team, as expressed during the trial, that Justice Sifris had pre-judged The Mericka Case. [View the email from Mr Tim Dixon dated 28 August, 2012]
When I phoned my lawyer (Mr Tim Dixon) about his email, and asked what had prompted him to send it to me, he said that The Mericka Case was a stain on the Supreme Court and that he wanted me to know that he and my legal team were behind me. He had also sent the email to encourage me to persevere in having the conduct of Noone, Ussher and Sifris investigated and to achieve a just outcome. As it turned out, no-one ever made any contact with my legal team to seek their views on the conduct of The Mericka Case, including the Victorian Legal Services Commissioner. As I later stated to the Legal Services Commissioner in my email of 18 February, 2013 (at pp. 78-79):
“I had expected that, with an allegation of corruption now having been clearly made against Sifris J., the Chief Justice would have sought further information or commenced some form of investigation. I felt that an expert opinion, from eminent Senior Counsel (Mr. Nimal Wikramanayake can be regarded as an expert due to his seniority and his experience as a Judge of the Court of Appeal in Fiji) that Sifris J. had made his decision before the court hearing had commenced should have prompted some form of action on the part of the Chief Justice, but it did not. I do not believe that any of this material was brought to the attention of the Legal Services Commissioner.” [View my email to the Legal Services Commissioner dated 18 February, 2013]
While I had not previously disclosed my legal team’s view that The Mericka Case had been pre-determined, I felt that now was the time to deliver this information to the Chief Justice/Ms Macgillivray, on the basis that a pre-packaged or pre-determined Supreme Court decision is an example of corruption, and that the view of eminent Senior Counsel was sufficient to give rise to a reasonable suspicion that Justice Sifris may have, unwittingly or not, been involved in corruption. Surely someone would contact my legal team to confirm that I was not alone in my beliefs and concerns.
Other avenues of redress
Now that the door of the Supreme Court had been slammed shut, in circumstances that raised further questions of corruption and cover-up, I informed the Chief Justice/Ms Macgillivray that I would pursue other avenues of redress. Again, I stated that my letter should be placed on the record of the Supreme Court of Victoria. [View the letter to the Chief Justice dated 30 August, 2012].
No response
The Chief Justice did not reply to my letter of 30 August, 2012, and I remained somewhat uncertain as to whether or not she was at all aware of the communications passing between the Supreme Court and myself.
I wasn’t sure what I should do, what further avenues of complaint were available to me or when the process server from Consumer Affairs Victoria would arrive on my doorstep with the false charges of Contempt of Court.
The Chief Justice holds a “secret trial”
[I am calling Warren’s actions a “secret trial” to emphasise the fact that she secretly made decisions and took steps that would have serious professional and personal consequences for me, my family and my business. Warren’s actions were such that they should have formed part of an investigation, with the results of the investigation informing any decision-making process.]
Unbeknown to me, during the long period of silence between my writing to the Chief Justice and her eventually informing me in writing that no further action would be taken in relation to the matter, she had held what I would describe as a “secret trial”.
The “secret trial” was held in camera, required no evidence, and required no consideration at all of The Briginshaw principle. (Recall that the making of an unfounded allegation is extremely serious and can result in a lawyer’s being struck off the roll and losing his/her livelihood.)
At the end of the “secret trial” the Chief Justice had dismissed my complaint entirely. She later informed me of her “judgement”, that being, “The serious allegations contained in your letter are emphatically denied”, although I was never given the opportunity to contribute to the trial, and I remain unaware of any other party having contributed to it. Whatever “evidence” the Chief Justice accepted during her secret trial would have to have been overwhelming for her to have used the word “emphatically” to give added strength to her determination. Having dismissed my complaint the Chief Justice apparently went on to find that I was guilty of having lodged a complaint against a judge of the Supreme Court when I had no right to do so, and that the complaint was so serious that it made no difference as to whether or not it was valid (i.e. the validity or otherwise of the complaint was not the issue; it was the solely the fact that a complaint had been made that was being considered). Hence, no need for any form of investigation?
Having determined that I was guilty of professional misconduct, the Chief Justice decided that I would have to be dealt with. She didn’t see the need to inform me of her “secret trial” or its outcome, and so I was left completely in the dark about the quiet months between the lodging of my complaint and my follow-up phone call.
The ultimate betrayal
The letter from from the Legal Services Commissioner took me completely by surprise. It was dated 16 November, 2012 and attached to it was a a copy of the letter from the Chief Justice, together with a copy of my letter to the Chief Justice dated 29 May, 2012. [View the letter from the Legal Services Commissioner dated 16 November, 2012]
I was stunned, to say the least. The Chief Justice/Ms Macgillivray had apparently lied to me in her letter of 15 August, 2012. I had been told that the Chief Justice “does not propose that any further action be taken with respect to the matters you raise concerning the Hon. Justice Sifris”, and in her letter of 23 August, 2012 she had attempted to mislead me by suggesting that I should pursue “avenues of appeal”. Yet, the very next day, she wrote to her friend Michael McGarvie, the Legal Services Commissioner (note that the letter is personally addressed to “Mr McGarvie”) to set him onto me like an attack dog.
Why did the Chief Justice let the cat out of the bag?
The Chief Justice must have realised that a lawyer who has taken the extreme, indeed terrifying, step of blowing the whistle on corruption laundering to the Chief Justice of the Supreme Court must be motivated by real and genuinely held concerns. Even more so, when the whistleblower continues to press his case.
It is possible that the Chief Justice had hoped that by not responding to my first letter she would discourage me from pursuing my complaint, particularly if the false charges of Contempt of Court failed to materialise. In such circumstances it makes sense that the Chief Justice would not have written to the Legal Services Commissioner; after all what could be achieved by making more people aware of the corruption allegations?
My following up some two months later may have caused panic.
By following up I had confirmed that I was quite serious about the matter, and that I expected some form of action. I believe that my following up on my complaint forced the hand of the Chief Justice, and she was now put in a position where she had to formally respond to my complaint, and any form of response was bound to raise further questions. While writing to the Legal Services Commissioner was risky, insofar as it would give oxygen to my complaint by exposing it to people outside of the Chief Justice’s chambers, it may have been decided that the risk was worth taking if the corruption fire could be snuffed out by discrediting the whistleblower.
I submit that the Chief Justice wrote to the Legal Services Commissioner in panic, in response to my following up on my complaint, and as a deliberate attempt to have me wrongfully prosecuted and discredited.
Implications flowing from Warren’s letter to McGarvie
There are numerous possible implications that flow from the Chief Justice’s letter to the Legal Services Commissioner:
#1 – The Chief Justice was fully aware of the communications flowing between Ms Macgillivray and me
Any doubts I had about the Chief Justice’s being aware of my letters to her, and the replies signed by Ms Macgillivray were gone. It was now clear to me that the Chief Justice either knew about everything from the outset, or she had adopted the letters written by Ms Macgillivray as her own. It beggars belief that the Legal Services Commissioner would have written to me without first making personal contact with the Chief Justice (Mr McGarvie was the CEO of the Supreme Court before his appointment as Legal Services Commissioner, a friend and colleague of the Chief Justice). It is therefore safe to assume that the expectations of the Chief Justice would have been discussed in the two months that passed before the Legal Services Commissioner wrote to me.
#2 – The Chief Justice had lied to me about taking no further action
The Chief Justice had told me that she proposed no further action. Yet she did indeed take further action insofar as she made a decision to regard me as having done something wrong, and then acted upon that decision by writing to the Legal Services Commissioner. The latter occurred within 24 hours of the Chief Justice telling me in writing that she proposed no further action.
#3 Denial of Natural Justice
The Chief Justice gave me no opportunity to provide her with any explanation or additional material before she decided to write to the Legal Services Commissioner. Indeed, by her letter of 23 August, 2012 in which she stated “no further correspondence will be entered into with respect to this matter” the Chief Justice had made sure that I could not offer any further details or explanation. I submit that the Chief Justice’s secret letter to the Legal Services Commissioner was a deliberate denial of Natural Justice.
This denial of Natural Justice was later relied upon by the Legal Services Commissioner in his claim that there was no proper basis to my corruption complaint. It is submitted that had the Chief Justice felt that my complaint had no proper basis she would have sought further information, and she certainly would not have refused to receive any further correspondence.
The denial of Natural Justice could be seen as ensuring that the Legal Services Commissioner would later be in a position to advance his spurious “no proper basis” claim (See “McGarvie’s bogus investigation“ below).
#4 Some form of inadequate or improper investigation had taken place
Whether or not the term “investigation” should be used to describe the actions of the Chief Justice is a matter of interpretation, but I submit that the Chief Justice is likely to have undertaken a process by which she obtained information that led to her acting as per #2 above. The “investigation” can be said to have commenced at the moment when the Chief Justice read the first sentence of my letter to Chief Justice dated 29 May, 2012. But at what point did the investigation end?
It may be that the Chief Justice chose to remain wilfully ignorant of the matters I had complained about, and ended her investigation as soon as she had finished reading my letter. (There has been criticism of Victoria’s judicial complaints system, with one commentator expressing the view that “when it comes to the investigation of truly serious complaints the flaws are fatal” [See above Observations regarding the judicial complaints system in Victoria].
Perhaps the Chief Justice actually commenced an investigation, discovered things that made her feel uncomfortable, and decided that she didn’t want to know anything more.
It is also possible that the Chief Justice spoke to numerous parties during the two months or so between her receiving my letter and my following up on it, took advice about the questions that would arise, the answers that would have to be given and the trouble that could be caused for any number of high-ranking public servants, and decided that she had to protect those close to her, including herself (a culture that allows the laundering of corruption through the Supreme Court would not reflect well on the Chief Justice).
For the Chief Justice to have made a decision to take no further action she must have concluded, for whatever reason, that pursing the matter would be a bad idea.
#5 A need to do something about the false charges of Contempt of Court
The Chief Justice made no mention of the anticipated Contempt of Court charges that were the cause of my writing to her in the first place. Perhaps the Chief Justice had been given some form of assurance that the false charges would not proceed. Perhaps the Chief Justice had advised Consumer Affairs Victoria that the charges should not proceed.
It is also possible that the Chief Justice realised that the Supreme Court was to be used to launder false charges and took Mr Ussher and Dr Noone to task for implicating the Supreme Court in the blackmail attempt.
To my mind, the scenario that makes the most sense of the conduct of the Chief Justice and that of the Legal Services Commissioner is that the Chief Justice took steps to ensure that the false charges would not proceed, but then sought the assistance of the Legal Services Commissioner in dealing with me so that I would never pursue the matter again – but of course, this remains mere supposition.
#6 Pre-emptive strike?
Why did the Chief Justice feel that she had to write to the Legal Services Commissioner? After all, my letter to her was a complaint that could have been dealt with under the the the procedure set out by the Supreme Court, despite that procedure’s flaws and failings (referred to in #4 above). The Chief Justice could have discussed the matter with me, explained that despite my concerns she would be taking no further action, and left the matter at that. I would have had nowhere to go, such was the complaints procedure at that time.
On the other hand, had the Chief Justice conducted an investigation and found that I was a lying, vexatious brute seeking to cause damage to innocent parties as part of some malicious vendetta she, or her delegated investigator, could have placed a full brief of evidence before the Legal Services Commissioner and made a recommendation that disciplinary action be taken on the basis that such a person is clearly unfit to continue as a legal practitioner.
So why did the Chief Justice resort to a sneaky, surreptitious letter to the Legal Services Commissioner? I submit that the Chief Justice’s behaviour in telling me that there was to be no further action, but then writing to the Legal Services Commissioner to have me disciplined should be viewed as something of a pre-emptive strike. I believe that the Chief Justice wanted to have me discredited by the Legal Services Commissioner so that my complaints would evaporate along with my reputation and credibility.
It is possible that the purpose of the Chief Justice was not to have the disciplinary process go all the way to a hearing. It may well have been more convenient if I could be cornered by the Legal Services Commissioner and convinced, under the threat of financial ruin and the stress of disciplinary proceedings, to withdraw my complaint, apologise and promise never to revisit the matter in return for the withdrawal of whatever charges the Legal Services Commissioner might be able to come up with. Indeed, this is similar to what actually happened (see “McGarvie’s bogus investigation“ below).
#7 Cronyism and the improper use of disciplinary procedures
I had written to the Chief Justice in my capacity as a victim of corruption, and as an individual who had been threatened with false charges of Contempt of Court. The Chief Justice was well aware that I was not simply a legal practitioner who was making a frivolous complaint on behalf of a disgruntled client. It seems that the Chief Justice and the Legal Services Commissioner seized on my use of my law firm’s letterhead as a reason to ignore the foregoing, and to concentrate on the fact that a legal practitioner had complained about a judge (as though there is something inherently wrong in this – see the the procedure set out by the Supreme Court, which does not purport to limit the right of a person to write to the Chief Justice about the behaviour of a Judge).
On the issue of my being a legal practitioner and an officer of the Supreme Court, and blowing the whistle when I had reason to suspect corrupt conduct, I say that it is incumbent upon any officer of the Court to draw attention to corruption and to “blow the whistle” long and loud.
Of course, if the Chief Justice had any doubts about my veracity or bona fides, she had the wherewithal to investigate and to decide upon these. A telephone call, a meeting with an appointed investigator or a request for further information could have allayed any such concerns.
I submit that the brevity of the letter from the Chief Justice to the Legal Services Commissioner speaks volumes of the relationship between the two, and the tacit understanding both had as to the need for action and the required outcome. I draw attention to the following:
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- It appears that care was taken to ensure that the letter would not have to be interpreted as a complaint. A complaint implies a complainant, and any competent investigator (see “My Credentials” regarding my experience and expertise as a professional forensic investigator) would first interview the complainant to obtain all relevant facts, including an understanding of the complainants motives/reasons for having lodged the complaint and expected outcomes.
- My complaint of corruption has been trivialised as mere “remarks” when in fact it was a corruption complaint of the most serious kind. [Recall that in her letter dated 23 August, 2012] the Chief Justice described my complaint as “serious allegations“.]
- Reference is made to the “matter“, but the “matter” is not identified. It is apparent that the word “matter” refers to the content of my letter, being the allegations of corruption laundering and the need for Justice Sifris to be disqualified. It also carries the implication, through the words “it is proposed that no action be taken“, that some form of investigation or enquiry has been conducted and that it has been concluded that the allegations I had made were false, when in fact no true investigation had ever been undertaken.
- The words “the letter raises concerns“, carry within them a subtle assertion that the Chief Justice has found my complaints to be false, and that the making of false complaint of such a serious nature warrants disciplinary proceedings. (On this interpretation, if the Chief Justice had not conducted enquiries of her own, or if she had enquired and found that my complaints were well-founded, she could hardly be writing such a letter to the Legal Services Commissioner.) [See also “The Chief Justice holds a secret trial” above]
- It is submitted that the words “a matter for the consideration of the Commission” smack of cronyism, a wink and a nod, to be interpreted as a call to action on the basis of a favour sought, rather than an honest offering of information. The word “matter” in this phrase appears to change its meaning by the time it reaches this sentence. In the second sentence of the letter “matter” referred to my complaints, but in this sentence “matter” refers to the new matter invented and subtly identified by the Chief Justice in just a couple of sentences – my having made false allegations of the most serious kind.
- The letter did not call for a fair and independent investigation into my complaints (which would also have entailed an investigation into my motives and veracity); it seems more like a rhetorical call to action, similar to that of King Henry II: “Will no-one rid me of this turbulent priest?” when he wanted Thomas Becket murdered without being implicated himself.
- The letter is, in effect, the Chief Justice’s attempt to have her cake and eat it too. She has sought to avoid the potentially embarrassing ordeal of investigating the most serious type of complaint that could ever be made regarding the Supreme Court of Victoria, while simultaneously calling for the whistleblower who made the complaint to be disciplined without any investigation having been conducted and without the whistleblower having been given the opportunity to provide further details or explanation. [See also “The Chief Justice holds a secret trial” above]
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What happened to the Contempt of Court charge?
The false charge of Contempt of Court never eventuated. I suspect that Warren and McGarvie may have had something to do with this, as one of McGarvie’s investigators suggested to me in an email that I was too hasty in complaining to the Chief Justice and that I should have waited to see the the charge was eventually laid against me. While this was a ludicrous suggestion (one does what one can to prevent crime, rather that wait for a crime to be committed) it did indicate some knowledge or belief that the charge was a ruse and that it would never be anything more than a threat. If this was so, then it raised further questions about the failure of the Legal Services Commissioner to look into the conduct of Dr. Claire Noone and Mr. Blair Ussher in using the threat of Supreme Court contempt proceedings in their blackmail.
It seemed that Warren, McGarvie and everyone associated with the matter had assumed that it was safely tucked away under a corner of the carpet. However, it would be dragged out again later – see “Blair Ussher re-generates the “crusade”” below.
The Legal Service Commissioner’s lack of jurisdiction
The Chief Justice didn’t want to know
My letters to the Chief Justice made it quite clear that I had formed the view that something was seriously wrong at the Supreme Court, that a cover-up was under way, and that my beliefs were genuinely held. I felt that I had provided sufficient material to the Chief Justice to allow her to form a reasonable belief that my complaint warranted some form of investigation; an investigation that would necessitate my being asked further questions and perhaps providing sufficient material to satisfy the Chief Justice that a more comprehensive investigation might be warranted.
In short, if the Chief Justice had any doubts at all about the legitimacy of my complaint all she had to do was to request further information from me. The fact that she chose not to seek further information should not have been detrimental to me.
And precisely what did Chief Justice Warren expect the Victorian Legal Services Commissioner to do? She would have been aware that a complaint from her, direct to her former colleague would carry an immense amount of weight, and that the outcome could not be good for me. I submit that this alone indicates a cruel and malicious intent on the part of Warren, in wanting to have me punished merely for drawing to her attention something that she really did not want to know about.
The Chief Justice lodged a formal complaint
The Victorian Legal Services Commissioner, through his delegate Mr Russel Daly, went to great lengths to ensure that Chief Justice Marilyn Warren would not be regarded as a complainant. As a complainant, Warren would have required some form of evidence in support of her complaint. That is, she would have had to confirm to the Commissioner that she had investigated my complaint, found that it was unsubstantiated, and complained that a legal practitioner should not make unsubstantiated complaints against a Judge of the Supreme Court.
However, Warren had never conducted any genuine investigation, and she did not even bother to contact me to seek further elaboration on my complaint.
When Warren wrote to her former colleague in his capacity as the Victorian Legal Services Commissioner she was most definitely lodging a complaint. It was a complaint that I had dared to follow the procedure described in “Supreme Court of Victoria Complaints“, by writing a discreet letter direct to her – nothing more. There was no suggestion at all by Warren that my complaint was made in bad faith, or that it was untrue. Yet, Warren clearly expected her man in the office of Legal Services Commissioner to do something; some form of favour, by initiating an investigation when there was no basis for one.
A baseless ‘own-motion’ investigation
The opening paragraph of the letter sent to me by the Victorian Legal Services Commissioner dated 16 November, 2012 was an outright lie. The paragraph states,
“This letter is to let you know that I have decided to commence an investigation under Section 4.4.8 of the Legal Profession Act 2004 into the issues identified in the enclosed letter from Chief Justice’s Chambers, Supreme Court of Victoria, dated 16 August, 2012”
The truth is that the Legal Services Commissioner had decided to investigate a complaint for which there was no proper basis, and for which no evidence had been provided by the Chief Justice as complainant. It is also true that there was no legal basis for the Commissioner to commence an own-motion investigation. Let us examine in a little more detail the way Warren’s baseless complaint to the Victorian Legal Services Commissioner morphed into an ‘own-motion’ investigation:
Complaint to the Chief Justice
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- I was quite entitled (indeed, as a lawyer I had a duty) to complain to the Chief Justice about the conduct of a judge if there appeared to be reasonable grounds for doing so.
- The Chief Justice was under a duty to investigate a complaint that is, on the surface, fair and reasonable. If she needed further information on which to base a determination, then it was incumbent upon her to request it. Of course, if the further information was not forthcoming when requested then she would have been entitled to make an adverse decision.
- There was no set procedure for investigating complaints, and so the Chief Justice was entitled to determine as she wished, provided that she acted in a manner that was fair and reasonable.
- The central task in investigating a complaint involves ascertaining whether there are facts to support the complaint and the evidence to prove those facts.
- When I wrote to the Chief Justice I provided her with some background material to aid her investigation.
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The response from the Chief Justice
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- Once the Chief Justice turned her mind to considering my complaint she should have asked me to produce any facts and evidence and to indicate any other sources of facts and evidence of which I was aware.
- The Chief Justice did not ask me for any evidence; indeed, she did not question anything I had put to her in my complaint.
- The Chief Justice dismissed my complaint without even a hint of investigation or preliminary enquiry. At the same time she declared the matter to be closed, thus precluding any possibility of my submitting facts and evidence.
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Referral to the Victorian Legal Services Commissioner
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- The Chief Justice referred my conduct in making a complaint to the Victorian Legal Services Commissioner, despite its having been lodge in compliance with the procedure described in “Supreme Court of Victoria Complaints“.
- The Chief Justice lodged her complaint with the Victorian Legal Services Commissioner following her own failure to investigate my complaint or to make any further enquiries.
- Given the failure of the Chief Justice to investigate or enquire in relation to the complaint, her complaint to the Victorian Legal Services Commissioner was tainted by bad faith and bias. It was pure speculation that I had made the complaint without a proper basis for doing so. Thus, the failure of the Chief Justice to investigate the complaint meant that she had to rely on mere speculation when she lodged her complaint.
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Investigation by the Victorian Legal Services Commissioner
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- An office holder such as the Victorian Legal Services Commissioner must act reasonably when exercising their power to institute and conduct disciplinary proceedings.
- Section 4.4.8 of the Legal Profession Act 2004 (referred to in the letter sent to me by the Victorian Legal Services Commissioner dated 16 November, 2012) confers power on the Commissioner to ‘investigate the conduct of an Australian legal practitioner: “The Commissioner may investigate the conduct of an Australian legal practitioner if the Commissioner has reason to believe that the conduct may amount to unsatisfactory professional conduct or professional misconduct, even though no complaint has been made about the conduct or a complaint about the conduct has been withdrawn.” Note that the Commissioner is only empowered to conduct such an investigation, “if the Commissioner has reason to believe that the conduct may amount to unsatisfactory professional conduct or professional misconduct“.
- The letter of complaint from the Chief Justice to the Legal Services Commissioner included nothing on which the Commissioner could form a reasonable belief that I had engaged in conduct that “may amount to unsatisfactory professional conduct or professional misconduct“.
- The corollary to 3. above is that the Commissioner had no reason to believe that my conduct in writing to the Chief Justice in accordance with the procedure described in “Supreme Court of Victoria Complaints“ constituted unsatisfactory professional conduct or professional misconduct.
- Because the Chief Justice had failed to ask me to produce evidence or further information there was no indication whatsoever that I did not have good grounds, as I perceived the facts, for making my complaint in accordance with the procedure described in “Supreme Court of Victoria Complaints“.
- Thus, it was pure speculation that I lacked good grounds for lodging my complaint. Speculation does not amount to a “reasonable belief”.
- The corollary to 6. above is that the disciplinary proceedings commenced as described in the letter sent to me by the Victorian Legal Services Commissioner dated 16 November, 2012 were tainted by illegality (and prejudice) from the outset.
- The only course open to the Victorian Legal Services Commissioner in the circumstances was to refuse to act upon the Chief Justice’s complaint.
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Conclusion
The Victorian Legal Services Commissioner was not entitled to initiate any investigation purely on speculation and without grounds. Obviously, if the Chief Justice had investigated the complaint and found that there was no real justification for making it, then there may have been something on which the Commissioner could have based an investigation pursuant to Section 4.4.8 of the Legal Profession Act 2004, but the Chief Justice failed to investigate or enquire.
Nonetheless, the Victorian Legal Services Commissioner knew what the Chief Justice expected of him, and he would not disappoint her.
Legal Services Commissioner takes his cue
It seems that, upon reading the letter from the Chief Justice, the Legal Services Commissioner knew exactly what was expected of him; there appears to have been no hesitation in his adopting the fiction that the Chief Justice had determined that my complaints were without merit and made for reasons so improper at to give rise to the need for intervention on the part of the Legal Services Commissioner.
A whiff of hypocrisy
As stated above, there was nothing at all in the letter from the Chief Justice to the Legal Services Commissioner that could trigger an own-motion investigation pursuant to Section 4.4.8 of the Legal Profession Act 2004. On the face of it Warren’s letter was no more than a cryptic indication that she needed help from her former colleague who, as Legal Services Commissioner, was in a position to make my complaint go away (and me with it).
Recall the following facts:
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- I was entitled to lodge a formal complaint in circumstances where I genuinely believed that I had been the victim of corrupt conduct, and in order to prevent further corrupt conduct from occurring.
- I had lodged my complaint with the Chief Justice in accordance with the procedure described in “Supreme Court of Victoria Complaints“, and I had provided background material as a starting point for further enquiry.
- The Chief Justice had not told the Legal Services Commissioner that my complaints were unfounded (although her writing to him could be seen as a subliminal message to this effect).
- The Chief Justice’s complaint to the Legal Services Commissioner provided no evidence of misconduct on my part, and was therefore without any basis.
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What the Victorian Legal Services Commissioner had received from the Chief Justice was nothing more than a letter indicating that she had “concerns” about my having lodged a complaint against a judge of her court, and suggesting that this “may be a matter for the consideration of the Commission“.
In short, the Chief Justice was guilty of precisely the same conduct that she was accusing me of.
The Legal Services Commissioner exaggerates the “concerns”
In the letter sent to me by the Victorian Legal Services Commissioner dated 16 November, 2012 the Legal Services Commissioner immediately identifies the “concerns” mentioned in Warrens letter of complaint as “disciplinary concerns“. Of course, what else could the “concerns” be other than “disciplinary concerns” if the Chief Justice has gone to the trouble of writing to the Legal Services Commissioner.
The letter goes on to state that, “…the merits of the disciplinary concerns raised in the enclosed document (i.e. the Chief Justice’s letter to the Legal Services Commissioner) will be assessed impartially, and a decision will not be made until you have been given a reasonable amount of time to respond and any further investigations which appear necessary are undertaken.“
Surely, the first investigation to be undertaken at this point would have been for the Legal Services Commissioner to investigate the basis of the Chief Justice’s complaint in order to determine whether or not Section 4.4.8 of the Legal Profession Act 2004 had been triggered. At this point the only material before the Legal Services Commissioner was a cryptic letter from the Chief Justice, attached to which were letters by which I had lodged my complaints together with background material as a starting point for further enquiry/investigation. Clearly, the Legal Services Commissioner had decided that the mere fact that I had lodged a complaint was, in and of itself, “conduct (that) may amount to unsatisfactory professional conduct or professional misconduct” as required by Section 4.4.8 of the Legal Profession Act 2004.
Indeed, in his letter dated 13 March, 2013 the Legal Services Commissioner openly states:
“For the avoidance of doubt, whether or not the Chief Justice considered there to be merit in your complaint is not a matter that founds my jurisdiction. My concern is not whether or not the allegations made by you were untrue; rather, I am concerned with the manner in which you…put these most serious allegations to the Chief Justice.”
So there we have it, the only basis on which the Legal Services Commissioner claimed to have initiated his own-motion investigation was the fact that I had lodged a very serious complaint in accordance with the procedure described in “Supreme Court of Victoria Complaints“; hardly a trigger for Section 4.4.8 of the Legal Profession Act 2004.
No corruption investigation and nowhere to go
What can a lawyer/whistleblower do when he is told that regardless of whether or not his corruption allegations are true, what is really of concern is the fact that he has dared to complain?
Letter to the Premier of Victoria – request for investigation
It was now early in 2013 and, despite my best efforts, I could not get anyone to investigate my allegations. An investigation would have quickly put the matter to rest – if my allegations were confirmed, then consequences would flow and high-ranking public officials would be held accountable. Of course, if my allegations were found to be false or baseless, then there would be well-deserved consequences for me. At that stage I wasn’t aware of a third possibility; that by ensuring that no investigation would ever take place, those avoiding the consequences of their corrupt conduct could have their cake and eat it too. All they had to do was to consistently employ the following equation:
COMPLAINT SANS INVESTIGATION = COMPLAINT WITHOUT BASIS - ERGO = FALSE COMPLAINT
After exhausting normal channels, and with no-one prepared to investigate my corruption complaints, I decided to implore higher officers of the state to initiate an investigation. On 19 February, 2013 I sent a letter to the Premier of Victoria, with copies to The Hon. Robert Clark MP, The Hon. Daniel Andrews MP, The Hon. Martin Pakula MLC and the Legal Services Commissioner. The letter gave background material, and concluded with the following statement and request for investigation:
“It has been my experience in recent years that departments within the Department of Justice, Victoria have not complied with regulations and guidelines established to prevent misconduct and injustice (see Consumer Affairs Victoria – Prosecution & Enforcement Policy and Model Litigant Guidelines), and that senior public servants are able to rely on each other for protection when complaints of misconduct and misfeasance in public office are made.
I therefore request the above submission be accepted, and a truly independent investigator be appointed to deal with this complaint and the issues related to it.”
I received no response from any of the parties to whom I had written, and no investigation was ever commenced. The above equation remained the standard.
I did continue with attempts to reason with the Legal Services Commissioner, but as can be seen from his letter dated 13 March, 2013 the Legal Services Commissioner would simply use verbosity to trump cogency in response to anything I put to him.
As the bogus “investigation” progressed I was told that the most obvious avenues of enquiry (i.e. investigation of the blackmail attempt by Dr Noone and Blair Ussher), the laundering of corrupt conduct through the Justice Sifris’ Court and the conduct of the Chief Justice herself, were all either beyond the scope of the Legal Services Commissioner’s investigation or outside of his jurisdiction. Of course, there was no consideration at all of matters being transferred to other authorities for investigation.
It wasn’t long before I realised that I was up against very powerful organisations, headed by powerful and unscrupulous individuals and that they had much deeper pockets (funded by the taxpayer) than I did.
Apart from continuing to blow the whistle on corrupt conduct as it emerged, there was very little I could do in the circumstances.
Recap – some observations
The simple facts of this matter are:
1. I had written to the Chief Justice in good faith, in an effort to prevent false charges of Contempt of Court from being laundered through the Supreme Court. I was entitled to express my concerns in writing to the Chief Justice as per the the procedure described in “Supreme Court of Victoria Complaints“.
2. The Chief Justice waited for over two months, and in that time she did not complain that I had not provided sufficient information to her, nor did she request any further information from me.
3. When I followed up on my complaint the Chief Justice did not complain that I had not provided sufficient information to her, nor did she request any further information from me.
4. When the Chief Justice responded to my complaint she indicated that she would be taking no further action. She made no complaint about my having submitted a written complaint to her, she sought no further information, and she provided no reasons for her decision.
5. The day after informing me that she would be taking no further action regarding my letter, the Chief Justice wrote to the Legal Services Commissioner and complained about me. The Chief Justice did not inform me that she would be writing to the Legal Services Commissioner, nor did she offer me any opportunity to address whatever concerns had prompted her to write to the Legal Services Commissioner.
6. As a consequence of the Chief Justice’s writing to the Legal Services Commissioner, a bogus own-motion investigation was commenced, based on the false imputation that my conduct in writing to the Chief Justice was somehow improper. No disclosure was ever made by the Legal Services Commissioner as to why my complaint was never investigated, or the motives of the Chief Justice in writing to him.
McGarvie’s bogus investigation
It soon became apparent to me that Mr McGarvie, his delegate Russell Daly and their investigators had a formula for dealing with me. They would use the coercive powers provided by Section 4.4.11(1)(a) and (b) of the Legal Profession Act 2004 in order to direct their “investigation” as they pleased.
It is a basic principle of investigation that the investigation is followed, rather than directed. In other words, the investigator should go where the investigation leads rather than where the investigator, through his/her own biases/prejudices or pre-conceived ideas, might want it to go. (See the page regarding my credentials as a professional investigator at “Professional Investigator – Senior Detective” for an examination on correct investigative technique).
The modus operandi adopted by McGarvie and his team can be summarised as follows:
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- Determine the preferred outcome of the investigation.
- Formulate a scenario on which the investigation is to be based.
- Limit the scope of the investigation so as to confine the investigation to matters and things that will not conflict with the preferred outcome.
- Inform the person under investigation that he/she must respond to anything the investigator might put to him/her.
- Determine what information/responses will further the preferred outcome, and require the person under investigation to address them.
- Ignore exculpatory material or attack it by presenting alternative interpretations as fact.
- Revisit 2. to 6. above for the duration of the investigation until 1. above has been achieved.
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As as former professional investigator myself, I took McGarvie et al. to task on numerous occasions regarding the methodology of the investigation, believing that somehow I could convince them that the process was not only unfair, but also illegal; but to no avail.
Eventually (inevitably), I was charged with two false counts of Professional Misconduct. Now I had to prepare a defence to present to VCAT; but defending charges at VCAT assumes that the justice system is working properly and fairly, when clearly it was not.
VCAT warned of corruption laundering
When dealing with corrupt public servants and officials the normal processes and procedures for complaint and investigation are of little use, as they are easily ignored or circumvented by those who feel that they may be under threat. Thus, it becomes necessary to use alternative means in order to get the message to those who need to know – to blow the whistle. I had been charged by the Victorian Legal Services Commissioner with two false charges of Professional Misconduct; yet another attempt to launder the corruption that had already made its way through Consumer Affairs Victoria, the Supreme Court of Victoria, the office of the Victorian Legal Services Commissioner and was now about to move into VCAT.
On 21 May, 2014 I wrote to VCAT in order to warn of this further attempt to launder corrupt conduct through that court. [View my letter to VCAT of 21 May, 2014]
Unsurprisingly, my letter to VCAT was ignored.
I was spending many hours of otherwise productive professional time in my interminable dealings with various officers of the Victorian Legal Services Board and Commissioner, until a lawyer friend of mine contacted me and invited me to have a chat about the situation.
Ending the “crusade” and moving on
I had kept my lawyer friend updated on the Legal Services Commissioner’s investigation. Occasionally he would express concern about the investigation and the frustration and upset it was causing for me, my family and my staff. Then, quite unexpectedly, my friend called me and asked if he and a colleague could meet with me to discuss the matter over coffee.
My friend introduced me to a barrister of long-standing who had experience with the Victorian Legal Services Commissioner’s office and its modus operandi. Her advice to me was up-front and hard-hitting.
She said to me,
“Peter, you cannot win against these people. Once they have you in their sights they will not stop until they have ruined you. They will wear you down financially and emotionally until you are utterly exhausted. If you win at VCAT they will appeal, and if you win at appeal they will find something else to investigate. They’ll hound you out of the profession. You can’t beat them.”
My friend agreed with the barrister, and he added these words of advice:
“You need to think about where you want to be in 10 years’ time. Do you want to keep on fighting these people indefinitely? And what about your wife and family, how will it affect them? You might be strong enough, but it will affect them and what affects them will affect you.”
Initially, I felt that I had lost support of those I was relying on. But then I realised that they were right, and that I should just give up and move on. The problem with doing this, however, was that I would have to plead guilty to charges of Professional Misconduct that was so serious that I could be struck off and lose my livelihood.
My friend offered to approach the Victorian Legal Services Commissioner and see if some mutually acceptable outcome could be achieved.
The response from the investigators was quite surprising. According to my friend, they leapt at the opportunity to avoid a VCAT contest and readily agreed to his proposal. The agreement was on the following terms:
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- I was to plead guilty to Professional Misconduct.
- I would have to pay the Commissioner’s legal costs of $12,500.
- The Commissioner would seek no penalty and my Practising Certificate would not be affected.
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Thus, my only way forward was to plead guilty to something I had not done, just to be able to return to a relatively normal life with my livelihood intact.
I had thought that I could win against corruption and those who sought to cover it up, but I was wrong. As sickening as it was to have to do it, I decided to go ahead and plead guilty to the false charges, just to end the otherwise interminable battle with the Victorian Legal Services Commissioner.
False letter of apology
My guilty plea was prepared on the basis of advice from a QC, engaged for the purpose of delivering my plea of guilty to VCAT. After negotiations with the Victorian Legal Services Commissioner’s legal team the plea was prepared, consisting of the following:
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- A letter to the Chief Justice apologising for making false allegations.
- A letter to Justice Sifris apologising for making false allegations.
- Participating in a free-of-charge stress management program provided by the Law Institute of Victoria with a psychologist.
- Removing my website at www.petermericka.com.au from the internet.
- Declaring that my “crusade” against corrupt individuals was at an end.
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On 1 October, 2014 I held my nose and wrote a false letter of apology to the woman who had deliberately and corruptly caused me so much professional and personal damage.
Note that the Victorian Legal Services Commissioner required that my letter of apology had to state that my allegations were false. Compare this with the words of the Victorian Legal Services Commissioner (see under the heading “The Legal Services Commissioner exaggerates the “concerns” above) when he first wrote to me, “My concern is not whether or not the allegations made by you were untrue; rather, I am concerned with the manner in which you…put these most serious allegations to the Chief Justice.” Thus, I was required to apologise, not just for having written to the Chief Justice, but for making false allegations.
In other words, the charges against me had morphed from relating solely to my having dared to write to the Chief Justice, to the making of false allegations!
Let me confirm once again – my allegations were not false. They remain as true today as they were when I wrote my letter to the Chief Justice on 29 March 2012.
Warren accepts apology to which she was not entitled
One of the more disgraceful aspects of Warren’s conduct was her silent acceptance of an apology she knew she was not entitled to. Warren knew that her actions would have a devastating impact on my my standing in the community and the legal profession. I was “reprimanded” by VCAT for Professional Misconduct, and as observed by Senior Member Gerard Butcher:
“I reprimand the respondent in relation to each of the two charges and point out that a reprimand is not an insignificant disposition. It signifies disapproval of the respondent’s actions and is a stain carried by the respondent for the remainder of his professional life.”
What Senior Member Butcher left unsaid is that the “stain” percolates down into a person’s soul, affecting their self-esteem and self-worth, creating feelings of shame in dealings with friends and family, and damaging all kinds business relationships and future prospects.
Warren did not even acknowledge my apology letter.
I imagined Warren reading my letter of apology, possibly feeling pangs of guilt and self-loathing at her own dishonesty and cruelty, but with “eyes on the prize” of future appointments and promotions, overcoming these negative emotions and looking forward to what the future might bring.
In an amazing co-incidence my wife and I happened to be dining one afternoon at At The Heads, a restaurant in Barwon Heads, when a couple sat down at a table just near us. It was Marilyn Warren and a gentleman I assume was her partner. As she sat there enjoying her meal I couldn’t help but wonder if she ever gave me a second thought or regretted the damage she had done to me, my wife and family, my business and my professional standing. While I would go through a decade of stress and turmoil, she would continue to enjoy her awards and state appointments, having successfully covered up her own corruption, which she expected would remain forever hidden.
The VCAT hearing
The VCAT hearing was a lifetime low point. I had pleaded guilty to something I had not done, and the process and outcome were utterly humiliating. A further consequence of which I was unaware at the time was the way that the determination and comments of Senior Member Butcher would be used later by the Victorian Legal Services Commissioner in order to gaslight and harass me, as well as “padding” for further disciplinary matters.
Senior Member Butcher made reference to the “cessation of the crusade” as well as the psychological counselling suggested by my barrister. (The psychologist and I both had a laugh when she told me that her diagnosis was that I was suffering from what she called “pissedoffedness” at the corruption I had experienced, and that there was no cure. The next two sessions of the set of 3 were spent on my describing to her what had transpired over the past decade.)
So why did I embark on this “crusade” against Chief Justice Marilyn Warren? VCAT’s simplistic view of the matter was that I had simply become “obsessed” because I had lost my case in the Supreme Court against Consumer Affairs Victoria – nothing more; and now I had run out of puff and decided to end the “crusade”.
The final determination of Senior Member Butcher can be viewed at the following link: Legal Services Commissioner v Mericka (Legal Practice) [2014] VCAT 1576.
VCAT accepted the submissions of the Victorian Legal Services Commissioner, being:
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- That I ought to have known that the allegations I had made against the Chief Justice were allegations of the highest gravity and ought not have been published to the Premier, the Attorney General, the Leader of the Opposition and a further member of parliament without disclosing a proper basis for the making of such allegations. [View my letter to the Premier of Victoria at this link]
- My letter to the Chief Justice did not disclose any proper basis for the publication of such serious allegations against the conduct and character of the Chief Justice.
- I ought to have known that I did not in fact have any proper basis to publish allegations of outright corrupt and criminal conduct against the Chief Justice to the named parliamentary recipients in the manner and to the extent that I did.
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So actually, my big mistake was in blowing the whistle on corruption. Unless a whistleblower can find someone who will accept the initial complaint and actually look into it, he/she is cooked.
I draw attention to the following comments by Senior Member Butcher:
“It is necessary for the public to have confidence in the administration of justice. This requires members of the legal profession to conduct themselves in a manner which displays respect for the courts, judges and the system of administration of justice generally. (Unsubstantiated allegations) have the effect of eroding this confidence and also have a detrimental affect on the dignity and reputation of the legal profession.”
I believed then, as I do now, that this statement applied to Chief Justice Marilyn Warren when she received my letter of complaint and then sought to destroy me for having awakened her with a blast from my whistle.
Ussher’s complicity with Legal Services Commission
At this stage I must mention the close relationship of Mr. Blair Ussher with the Victorian Legal Services Commissioner and his officers. When I entered the courtroom on the day of The VCAT hearing I was surprised to see Mr. Ussher sitting at the back of the court. It seemed that someone must have tipped him off about my matter and he wanted to personally witness my humiliation. As it turned out, Mr. Ussher was actually part of the legal team representing the Victorian Legal Services Commissioner – or at least, that’s the impression I gained when I saw him rush down to the bar table to give them instructions.
The Victorian Legal Services Commissioner was well aware of my blackmail complaint against Mr Ussher, and the fact that this criminal offence was the catalyst for my letter of complaint to Chief Justice 29 May, 2012 and also my letter to the Premier of Victoria. And yet they were quite at ease, not only with Mr. Ussher’s presence in the courtroom, but also with his instructing them in my matter.
My website at www.PeterMericka.com.au had included a post that described the blackmail perpetrated by Mr. Ussher as well as an earlier version of this posting describing the corrupt conduct of Marilyn Warren. The website had been taken down (on the advice of my barrister), but Mr. Ussher was determined to ensure that VCAT Member Butcher would take into account my allegation of blackmail against him. As my barrister was addressing the court, Mr. Ussher scurried down the the Victorian Legal Services Commissioner’s legal team and instructed them to mention my posting titled “The Blair Ussher Blackmail”. The Commissioner’s team dutifully did as Mr. Ussher instructed, and their barrister mentioned this to Senior Member Butcher. I advised the court (through my barrister) that the posting had been removed and, in any case, it hadn’t received very many hits at all. Although that quickly disposed of the matter, Mr. Ussher was certainly not satisfied. An apoplectic Mr. Ussher later approached my lawyer and threatened defamation proceedings. I was advised to offer Mr. Ussher $1,000 as “go-away” money (which I was prepared to do at that stage) but he rejected this generous offer, and with it the opportunity to remain under the radar.
More defamation threats (using different law firms) were made, but as I recovered from the distress and upset of the VCAT matter I regained my composure and decided to stand up to Mr. Ussher’s bullying. As truth is an ultimate defence in defamation proceedings I simply ignored Mr. Ussher’s defamation nonsense.
Realising that his defamation threats were not working, Mr. Ussher now adopted a similar approach to that of Marilyn Warren; he appealed to his friends in the office of the Victorian Legal Services Commissioner.
Blair Ussher re-generates the “crusade”
As discussed above, my pursuit of justice in the wake of corrupt activity by officers of the Justice Department had been characterised as a “crusade”, and the VCAT matter was supposed to have ended that “crusade”. But Mr Ussher soon regenerated the “crusade” by lodging a formal complaint against me with his friends at the office of the Victorian Legal Services Commissioner.
(I have mentioned Mr. Ussher’s failed attempts to harass me with defamation threats. One of the letters I received is this one sent to my lawyers by Donaldson Whiting + Grindal dated 21 November, 2014. I mention this letter because I will make reference to it below when discussing the dismissal of Mr. Ussher’s complaint against me.)
In February, 2015 I received a letter from the Victorian Legal Services Commissioner dated 24 February, 2015 informing me that Mr. Ussher had lodged a formal complaint against me, alleging that I had falsely accused him of blackmail and misconduct, and that I was once again under investigation. I replied by email, telling the Victorian Legal Services Commissioner that the complaint had effectively re-opened the “crusade”. [See my email of 17 March, 2015 in reply to Mr. Ussher’s complaint]
My response to Mr. Ussher’s complaint against me was to lodge my own formal complaint against him for blackmail, stalking and related misconduct. [See my formal complaint regarding blackmail and stalking against Blair Ussher – 22 April, 2015]
Ultimately, Mr. Ussher’s complaint against me was dismissed, despite the efforts of the Victorian Legal Services Commissioner to avoid this outcome. (First they tried to convince me to engage in mediation, but when I told them that Mr. Ussher’s criminal conduct could not be “mediated away” they tried to convince me to plead guilty to a misconduct charge that they would deal with “in-house” instead of through VCAT. When I refused this, they had no option but to charge me or dismiss Mr. Ussher’s complaint.)
I will be publishing a full account of the blackmail perpetrated by Mr. Blair Ussher and Dr. Claire Noone in a future posting. For the time being, an account of how it all ended can be gleaned from this letter I wrote to Mr. Ussher’s lawyers as a late reply to the abovementioned letter from Donaldson Whiting + Grindal dated 21 November, 2014. [See my reply letter to Donalson Whiting + Grindal]
Conclusion and an open question
Chief Justice Marilyn Warren was touched by the corrupt conduct of others. She could have acted with grace and dignity in her role as Chief Justice, but instead she foolishly chose what she believed was an easy way out. It was one drop from her poison pen that started a chain reaction (to borrow from John Farnham’s song), affecting numerous parties and government departments.
I would like to hear from you
“Is there any lawyer in Australia who does not now accept that Marilyn Warren, as Chief Justice of Supreme Court of Victoria, acted corruptly in the handling of my formal complaint and report of corruption being laundered through the Supreme Court of Victoria?” If so, I would be pleased to hear from you. Just leave your comments below.
More to come
Future postings will include articles exposing the corrupting of more Judges, VCAT Members, a past President of the Law Institute of Victoria, and a host of others all of whom were touched by Marilyn Warren’s corrupt conduct.
