Victorian Legal Services Board v Mericka
[2024] VSC 1
•12 January 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S ECI 2023 03928
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| PETER JOHN MERICKA | Defendant |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 December 2023 |
DATE OF JUDGMENT: | 12 January 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Mericka |
MEDIUM NEUTRAL CITATION: | [2024] VSC 1 |
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LEGAL PRACTITIONERS – Disciplinary proceedings – Professional misconduct – Fit and proper person – Application for removal of name from roll of persons admitted to legal profession – Application not contested by legal practitioner – Repeated publications of allegations of an unfounded, scandalous and vexatious nature – Legal Profession Uniform Law, s 23 – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Stoller | Victorian Legal Services Board |
| For the Defendant | No appearance |
HER HONOUR:
Mr Peter Mericka was admitted to practise as a lawyer and signed the Supreme Court roll (the Roll) in November 1992. He has until 2021 practiced as a legal practitioner. The Victorian Legal Services Board (VLSB) has applied for an order that his name be removed from the Roll.[1] The VLSB seeks this order pursuant to s 23(1) of the Legal Profession Uniform Law[2] (Uniform Law) on the basis that Mr Mericka is not a fit and proper person to be a lawyer and is likely to remain unfit indefinitely. The basis for this recommendation is a history of correspondence and publications by Mr Mericka making unfounded allegations against various people, including the former Director of Consumer Affairs Victoria (CAV), the Victorian Legal Services Commissioner (VLSC), and judges of this Court, to the effect that they are corrupt, guilty of criminal conduct or other improper conduct.
[1]By Originating Motion dated 29 August 2023.
[2]Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Uniform Law).
Mr Mericka has not contested the application made by the VLSB, and did not appear at the hearing.[3] Shortly after this proceeding was commenced by the VLSB in August 2023, Mr Mericka wrote to the Chief Justice of the Supreme Court, advising that he would not contest the VLSB’s application to have his name removed from the Roll, and requesting that his name be removed from the Roll.[4] Mr Mericka stated in the letter that he had previously sought the removal of his name from the Roll in protest against the ‘ongoing corruption [he had] experienced at the hands of various officers of the Victorian Justice System’. He referred to the documents produced by the VLSB in this proceeding and stated in the letter, ‘I stand by each and every complaint and allegation I have made in these documents.’
[3]Evidence in the form of affidavits of service was tendered by the VLSB demonstrating that the originating motion, affidavit in support and summons for directions had been served on Mr Mericka: Affidavit of Anita Scott sworn on 10 September 2023; Affidavit of Daryl John West sworn on 22 September 2022. It was also apparent from Mr Mericka’s correspondence to the Court dated 1 September 2023 that he had received the originating motion and the affidavit in support.
[4]Correspondence dated 1 September 2023.
The position taken by Mr Mericka in this letter reflected an earlier letter he had sent to the Court, dated 12 December 2022, in which he requested that his name be removed from the Roll, on the basis that he had ‘lost faith and confidence in the judicial system of Victoria’.[5]
[5]Affidavit of Aidan McCarthy affirmed on 9 November 2022 (Second McCarthy Affidavit), [12], Exhibit, 17. Mr Mericka was advised that it was not possible to remove his name from the roll based only on correspondence, and that an application was required: Second McCarthy Affidavit, [13]; Exhibit, 18.
During the hearing, counsel for the VLSB made appropriate submissions drawing my attention to any material on which Mr Mericka might have been expected to rely to explain his conduct, had he appeared.[6]
[6]Transcript 4/12/23, T9.05-.11, T10.27-11.05, T31.20-.29.
Although the VLSB’s application is not contested by Mr Mericka, the basis on which he now seeks removal of his name from the Roll does not reflect the basis on which the VLSB makes the application; nor is it an accurate description of the effect of the evidence before the Court. Further, while Mr Mericka’s consent to being removed from the Roll may be relevant,[7] it is not determinative of the proceeding. I am required to be satisfied that, as at the time of the hearing, Mr Mericka is not a fit and proper person to be a legal practitioner and is likely to remain so for the indefinite future.[8] It is appropriate that I give full reasons as to my consideration of that issue, and for the disposition of the application.
[7]See, albeit in circumstances of a genuine consent apparently appropriately directed to the factual basis on which the VLSB made an application for removal of a practitioner’s name from the Roll, Victorian Legal Services Board v Nicola Maree Gobbo [2020] VSC 692, [5], [51]-[53] (Forbes J).
[8]Uniform Law, s 23(1).
In considering whether I can be satisfied, based on the material before me, that Mr Mericka is not a fit and proper person, it is relevant that Mr Mericka has not appeared to make submissions or put forward his own evidence which may be relevant to the issue. His failure to challenge any of the evidence, or to provide any exculpatory statement or explanation, means that I can safely make conclusions from the evidence tendered on the application,[9] taking into account the entirety of the material and any potentially mitigating factors arising from it. Mr Mericka’s failure to appear and his apparent reasons for doing so are also relevant to my assessment of his appreciation, as an officer of the Court, of his obligations towards the Court.[10]
[9]See Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73, [25] and the cases there cited (Allsop P, McColl and Young JJA); see too Legal Services Board v McGrath (No 2) (2010) 29 VR 325, 339 [21], where Warren CJ endorsed the observations as to the relevance of a practitioner not appearing, although expressing some doubt about an observation as to how historical events may reflect on the practitioner at the time of the hearing.
[10]Legal Services Board v McGrath (No 2) (2010) 29 VR 325, 341 [27].
Relevant legal principles
This Court has the power, in its inherent jurisdiction, to order that a legal practitioner’s name be removed from the Roll.[11] This power is also conferred by s 23(1) of the Uniform Law, which provides:
[11]A Solicitor v Council of the Law Society (NSW) (2004) 216 CLR 253, 260-261 [2]-[3] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Victorian Legal Services Commissioner v Horak [2016] VSC 780, [5] (McMillan J).
23 Removal from Supreme Court roll
(1)The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll, on—
(a) its own motion; or
(b)the recommendation of the designated local regulatory authority; or
(c) the recommendation of the designated tribunal.
The VLSB is the designated local regulatory authority in Victoria for the purpose of s 23 of the Uniform Law.[12] While the VLSB’s recommendation must be given ‘appropriate weight’, the Court is not bound to accept it, and must independently exercise its power based on the material before it.[13]
[12]Legal Profession Uniform Law Application Act 2014, s 10.
[13]Victorian Legal Services Board v Gobbo [2020] VSC 692, [5] (Forbes J).
The power to remove a practitioner’s name from the Roll is, as with other disciplinary powers, a power of a protective rather than punitive nature.[14] It is directed to the protection of the public and also, importantly in this case, to the protection of the legal profession, the courts, the justice system and community confidence in that system.[15]
[14]Clyne v The New South Wales Bar Association (1960) 104 CLR 186, 201-202 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ).
[15]Legal Services Board v McGrath (No 2) (2010) 29 VR 325, 329 [10].
The signing of the roll of the Supreme Court by a legal practitioner reflects the relationship of trust and confidence that the Court must have in the practitioners, a relationship that is essential for the due administration of justice.[16] The power to remove a person’s name from the Roll is important because permitting a person who is not a fit and proper person to practise to remain on the Roll would have the potential to seriously undermine not only the Court’s relationship of trust and confidence with those who practise before it, but also the community’s confidence in the legal profession and the Court itself.
[16]Clyne v Bar Association of New South Wales (1960) 104 CLR 186, 198 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ).
The relevant principles as to the exercise of the power to remove a practitioner’s name from the Roll were summarised by Warren CJ in Legal Services Board v McGrath:[17]
An exercise of the court’s discretion to remove a practitioner from the roll is made by reference to a number of longstanding principles … Such a decision will only be made when the court is satisfied at the time of the hearing that the practitioner in question is shown “not to be a fit and proper person to be a legal practitioner” or is shown not to be a “fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor” and will likely remain so for the indefinite future. The person or entity bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities. As was set out in Briginshaw v Briginshaw, that standard is not a fixed or simple one, but depends upon the matters before the court. While the onus of proof is a civil one, the court approaches the making of such decisions with caution and “meticulous care”, and with a great appreciation for “the possibly disastrous consequences of disbarment to the individual concerned”.[18]
[17](2010) 29 VR 325, 328-9.
[18](2010) 29 VR 325, 328-9, [9] (citations omitted).
In Victorian Legal Services Board v Gobbo,[19] Forbes J elaborated on the meaning of ‘fit and proper’:
The phrase ‘fit and proper’ is a familiar one giving the widest scope for matters of judgment. It is not solely related to questions of conduct or character but is a holistic inquiry in light of the particular facts and circumstances. In Hughes & Vale Pty Ltd v NSW (No 2),[20] the Court considered the meaning of the phrase, in the context of fitness to hold a particular type of licence, noting:
Fit (or “idoneus”) with respect to an office is said to involve three things, honesty, knowledge and ability: ”honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and the ability … that he may intend and execute his office, when need is, diligently, and not for impotency or poverty, neglect it”.[21]
[19][2020] VSC 692.
[20](1955) 93 CLR 127, 156.
[21][2020] VSC 692, [9], citing (1955) 93 CLR 127, 156-7 (Dixon CJ, McTiernan and Webb JJ).
The inherent requirements for fitness and propriety of a lawyer were described by Davies J in MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales,[22] as including the following:
[22][2018] NSWSC 1410.
(a) the ability to perform the day-to-day tasks associated with providing legal services, including the ability to communicate in a professional manner with the courts, law-enforcement agencies and other legal practitioners;
(b) the ability to discharge the legal practitioner’s duties to the Court, including:
(i) the duty to be honest and courteous in all dealings in the course of legal practice;
(ii) the duty not to engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute;
(iii) the duty not to knowingly or recklessly mislead the court; and
(iv) an obligation to obey the law and to comply with court orders.[23]
[23][2018] NSWSC 1410, [47]-[48].
In relation to assessing whether any lack of fitness or propriety will likely extend indefinitely, the Court may have regard not only to the historical actions of the practitioner, but also to evidence as to the practitioner’s ‘insight and the capacity to overcome and eradicate behaviour’.[24]
[24]Victorian Legal Services Board v Gobbo [2020] VSC 692, [10] (Forbes J).
Facts giving rise to the application
Mr Mericka, having been admitted to practise on 2 November 1992, held a practising certificate between 2 November 1992 and 19 October 2021, and again between 16 December 2021 to 17 January 2023. He does not currently hold a practising certificate.[25]
[25]Affidavit of Aidan McCarthy affirmed 29 August 2023 (First McCarthy Affidavit), [11]; Exhibit, 60.
The conduct forming the basis for the VLSB’s view that Mr Mericka is not a fit and proper person, and its recommendation, made pursuant to s 23(1)(b) of the Uniform Law, that the Court make an order that his name and other particulars be removed from the Roll were set out in three affidavits of Mr Aidan McCarthy of the VLSB. In summary, Mr Mericka has repeatedly made and published allegations that judges of this Court and various individuals performing statutory roles are corrupt, have covered up corruption or have engaged in criminal conduct, and have engaged in other improper conduct, without any foundation for the making of those allegations. He has made these allegations about Justice Sifris and the former Chief Justice of this Court, Warren CJ; the former General Counsel of CAV; the former Director of CAV; the Law Institute of Victoria (LIV); the VLSC; the VLSB and several of its staff. The VLSB also relies on discourteous and unprofessional communications by Mr Mericka with Gadens lawyers (Gadens).
Mr Mericka’s conduct
The conduct of Mr Mericka on which the VLSB based its recommendation that he was not a fit and proper person to be a lawyer fell broadly into four categories:
(a) conduct, found to be unprofessional in a 2014 VCAT disciplinary proceeding, in writing letters alleging that judges of this Court were corrupt (2014 VCAT Proceeding);
(b) conduct in making online publications following the 2014 VCAT proceeding, between 2016 and 2021;
(c) conduct in making online publications in 2022–2023, after an undertaking had been given in a further VCAT proceeding not to post certain publications; and
(d) conduct found to be unprofessional conduct in a 2017 – 2018 VCAT proceeding relating email correspondence sent to Gadens (2018 VCAT proceeding).
The allegations regarding the Director of CAV and judges of the Supreme Court
A number of Mr Mericka’s allegations trace back to an application brought by the then Director of CAV, Dr Claire Noone, against Mr Mericka and his companies in the Supreme Court in 2011, alleging that they had carried on business as an estate agent without the licence required under the Estate Agents Act 1980. Mr Mericka had contended that the activities which had been identified by the Director of CAV as carrying on the business of a real estate agent were not in fact functions restricted to licensed real estate agents, and that he was exempt from the requirement to hold a licence as an Australian legal practitioner.[26] Prior to the 2011 application being heard, Mr Mericka had sent letters to the Minister for Consumer Affairs and the Victorian Ombudsman, alleging that the Director of CAV had been engaging in ‘corrupt conduct’ in connection with her investigation of whether Mr Mericka and his companies had breached the Estate Agents Act 1980.[27]
[26]Noone v Mericka & Ors [2012] VSC 101; [28]-[32].
[27]First McCarthy Affidavit; Exhibit, 98-114.
The application was heard by Sifris J who concluded that Mr Mericka and his companies were providing services for which a real estate agent’s licence was required, and that they were not exempt from the requirement to have an estate agent’s licence.[28] His Honour granted declarative and injunctive relief against Mr Mericka.[29]
[28]Noone v Mericka & Ors [2012] VSC 101, [38]-[48], [61]-[62].
[29]Noone v Mericka & Ors (No 2) [2012] VSC 2.
Following the judgment, Mr Mericka wrote a letter dated 29 May 2012 to the Chief Justice in which he stated:
I wish to lodge a formal complaint of bias and incompetence on the part of Sifris J, in his hearing and determining the matter of Dr. Claire Noone, Director of Consumer Affairs Victoria v Peter Mericka & Ors [2012] VSC 101.
The complaint is based on the judge’s allowing his court to be used for the purposes of ‘laundering’ corrupt conduct, and thereby giving this conduct a veneer of legitimacy.[30]
[30]First McCarthy Affidavit, [19]; Exhibit, 97.
Mr Mericka wrote two further letters to the Chief Justice referring to the Supreme Court having ‘laundered’ corrupt conduct and describing the trial before Sifris J as a ‘sham’.[31]
[31]Letters dated 19 August and 30 August 2012. First McCarthy Affidavit, [21]-[24]; Exhibit, 110-112.
Mr Mericka then wrote a letter dated 19 February 2013 to the Premier of Victoria, copied to other ministers of Parliament, advising that he had lodged a formal written complaint with the VLSC ‘regarding corruption and a possible perverting of the course of justice, perpetrated by The Hon. Marilyn Warren, Chief Justice of the Supreme Court of Victoria’, based on her Honour declining to take action on his complaints about Sifris J. He also repeated the allegations made against Sifris J ‘in allowing corrupt conduct to be laundered through his court’.[32]
[32]First McCarthy Affidavit, [25]; Exhibit, 113-115.
During 2014, Mr Mericka made a number of publications on a website he operated, petermericka.com.au (the Website).[33] These publications included, most relevantly:
[33]First McCarthy Affidavit, [32]-[34]; Exhibit, 157-179.
(a) An article published no later than 17 June 2014 titled ‘Why the Chief Justice Must Resign’. The article referred to the letters sent to the Chief Justice and alleged, among other things, that ‘the Chief Justice betrayed [him] in the most despicable manner’ (apparently on the basis that her Honour had not acted on his complaints about Sifris J and had directed that a copy of his letter to her be sent to the VLSC ). It stated that the Chief Justice had made ‘a deliberate attempt to have [him] wrongfully prosecuted and discredited’ and contended that ‘the Chief Justice, in collaboration with the Legal Services Commissioner is now attempting to further launder corrupt conduct through the judicial system of Victoria’. He concluded by asserting that the conduct of the Chief Justice was ‘corrupt conduct’ and that she must resign.[34]
(b) An article titled ‘Peter Mericka – How (and why) I Became a Corruption Whistleblower’, published on or before 1 July 2014. In that article he referred to his ‘Lawyers Real Estate’ business and the subsequent proceeding before Sifris J and alleged that it was an example of how ‘corrupt conduct … can be subsequently “laundered” thought the Supreme Court of Victoria’. He also alleged that the General Counsel of CAV had ‘attempted to blackmail me into making false admissions that could have been used to support charges of Contempt of Court’ (apparently a reference to being requested to undertake further corrective advertising following the orders made by Sifris J).[35] He also alleged that VCAT was being ‘used as a corruption laundry’ by reason of disciplinary charges based on the sending of the letters to the Chief Justice and the Premier, which were to be heard in VCAT (as set out in paragraphs [24] to [29] below).[36]
(c) An article titled ‘Legal Services Commissioner – Dilemma for a Junior Lawyer’, published on or before 1 July 2014, which discussed his communications with a solicitor employed by the VLSB and alleged that the former VLSC had engaged in corrupt conduct and had that there had been ‘a cover up perpetrated by the Legal Services Commissioner at the behest of the Chief Justice’.[37]
[34]First McCarthy Affidavit, [38]-[39]; Exhibit, 188-199.
[35]This followed Mr Mericka having published the corrective advertising as required, but then also arranging to have published on the same page an advertisement stating ‘To get the FULL story on this case, visit: wwwPeterMericka.com.au’. First McCarthy Affidavit, Exhibit, 666.
[36]First McCarthy Affidavit, [40]; Exhibit, 200-211.
[37]First McCarthy Affidavit, [42]; Exhibit, 203, 212-224.
In or about May 2014, the VLSC commenced disciplinary proceedings against Mr Mericka in VCAT, based on his correspondence to the Chief Justice dated 29 May 2012, 19 August 2012 and 30 August 2012, and his letter to the Premier of Victoria and others dated 19 February 2013.[38] In response to receiving a copy of the application from VCAT, Mr Mericka wrote a letter to VCAT dated 21 May 2014 in which he stated:
I wish to place on record, at the earliest opportunity, my complaint regarding the laundering of corrupt conduct through the Supreme Court of Victoria by the Director of Consumer Affairs Victoria, and what I submit is a further attempt by the Legal Services Commissioner to launder corrupt conduct through VCAT.[39]
[38]Legal Services Commissioner v Mericka [2014] VCAT 1576, [9]-[38].
[39]First McCarthy Affidavit, [29]; Exhibit, 136.
In the letter he alleged that the application to VCAT constituted ‘a corrupt collaboration between the Chief Justice of the Supreme Court of Victoria and the Legal Services Commissioner’ and stated:
I submit that the laying of this charge constitutes an attempt by both the Legal Services Commissioner and the Chief Justice of the Supreme Court of Victoria to launder corruption through VCAT.[40]
[40]First McCarthy Affidavit, [29]; Exhibit, 137.
At the hearing before VCAT on 2 October 2014, Mr Mericka ultimately pleaded guilty to two charges of professional misconduct at common law.[41] The VCAT member found him guilty of the two charges, and by orders made 18 December 2014, gave him a reprimand for each charge and ordered him to pay the costs of the VLSC.[42] In the course of the reasons for decision, Senior Member Butcher found that at the time of sending the letters, Mr Mericka ought to have known that he did not have any proper basis to make the allegations against the Chief Justice and Sifris J which had been made in the letters.[43] The Senior Member also found that he used ‘discourteous, intemperate and vituperative language’ in addressing the Chief Justice.[44]
[41]Legal Services Commissioner v Mericka [2014] VCAT 1576, [37].
[42]Legal Services Commissioner v Mericka [2014] VCAT 1576.
[43]Legal Services Commissioner v Mericka [2014] VCAT 1576, [21],[25]-[27], [30], [35].
[44]Legal Services Commissioner v Mericka [2014] VCAT 1576, [28].
Mr Mericka had, the day prior to the hearing of the disciplinary charges in VCAT on 2 October 2014, written letters of apology to Warren CJ and Sifris J, in which he accepted that his allegations ‘had no objective basis and should not have been made’.[45] Mr Mericka also, through his lawyers, advised VCAT that he had sought the support of a psychologist through an initiative of the LIV, and that he was ‘committed to at least two further sessions with a psychologist to address the issues which were the subject matter of the proceeding’.[46]
[45]First McCarthy Affidavit, [28]; Exhibit, 134-135. Legal Services Commissioner v Mericka [2014] VCAT 1576, [38], [39].
[46]Legal Services Commissioner v Mericka [2014] VCAT 1576, [46].
Senior Member Butcher noted in his reasons for decision in the 2014 VCAT proceeding, under the heading ‘Cessation of Crusade’ that:
It is clear that the correspondence which has given rise to these charges is part of a crusade undertaken by the respondent as a result of the proceedings commenced against him by the Director of Consumer Affairs. It is clear that the [sic] became obsessed. It was submitted to the Tribunal that both he and his wife want the crusade to end.[47]
[47]Legal Services Commissioner v Mericka [2014] VCAT 1576, [45].
It was apparent from Senior Member Butcher’s reasons that the apologies and the commitment to undertake psychological counselling were material factors in determining that it was unnecessary to order a fine or to interfere in any way with Mr Mericka’s practising certificate.[48] The Senior Member observed:
I am satisfied that the respondent has displayed insight into his actions, has appropriately displayed contrition, not only by apologising but by pleading guilty to the charges and has taken action by way of counselling to minimise the likelihood of repetition.[49]
[48]Legal Services Commissioner v Mericka [2014] VCAT 1576, [50], [53].
[49]Legal Services Commissioner v Mericka [2014] VCAT 1576, [51].
Publications following the 2014 VCAT proceeding
Notwithstanding the position he put to VCAT in the disciplinary proceeding, Mr Mericka continued in around 2017 to publish material on his website and on LinkedIn[50] making a range of allegations including that:
[50]First McCarthy Affidavit, [46]-[54].
(a) The LIV, the Real Estate Institute of Victoria and ‘Luddites’ within CAV had engaged in an ‘improper connivance’ and ‘deceptions’.[51]
(b) A ‘government lawyer threatened me with false charges of Contempt of Court unless I did as I was told’.[52]
(c) ‘I made the mistake of following the complaint procedure as set out on the website of the Supreme Court of Victoria, expecting a fair hearing and an investigation. Instead I have had the Legal Services Commissioner hounding and harassing me for the past 4 years without my complaint ever having been investigated.’[53]
[51]First McCarthy Affidavit, [47]; Exhibit, 269 (published in or about 2016).
[52]First McCarthy Affidavit, [49]; Exhibit, 248 (published in or about June 2017).
[53]First McCarthy Affidavit, [54]; Exhibit, 239 (published in or about October 2017).
In or before September 2020 Mr Mericka published on his Website articles which alleged:
(a) that the former and current VLSCs were corrupt and had engaged in criminal conduct;[54]
(b) that the General Counsel of CAV, Mr Blair Ussher, had engaged in blackmail;[55] and
(c) that another officer of the VLSB, was a criminal who had engaged in corruption, perjury and perverted the course of justice.[56]
[54]First McCarthy Affidavit, [57]-[60], [67], [69], [71]; Exhibit, 291-295, 309-318.
[55]First McCarthy Affidavit, [61]; Exhibit, 299-300.
[56]First McCarthy Affidavit, [65]; Exhibit, 307-308.
In or about May and June 2021, Mr Mericka published two articles on a website ‘insights.pecb.com’. The articles, which were accompanied by his name and the same photograph which featured on his Website and LinkedIn profile, were as follows:
(a) One titled ‘Blowing the Whistle on Civil Servants — Is It Worth the Risk?’ and dated 31 May 2021, in which he accused ‘Mr. U’ of being a ‘corrupt civil servant’; that he had a ‘full brief of evidence which clearly demonstrated Mr. U’s guilt’ and that the VLSC had engaged in ‘a campaign designed to force me to accept guilt for trumped-up disciplinary charges using various forms of bullying, harassment, gaslighting, and biased investigations’.[57]
(b) One titled ‘Blowing the Whistle on Civil Servants — Is It Worth the Risk? — Part 2’ dated 2 June 2021, in which he asserted that in his dealings with the VLSC, he ‘was able to expose [‘Mr U’] as corrupt and similarly expose others who had become tainted by his corrupt conduct’.[58]
[57]First McCarthy Affidavit, [73]-[75]; Exhibit, 319-323.
[58]First McCarthy Affidavit, [76]-[78]; Exhibit, 324-329.
On or before 2 August 2021, Mr Mericka published an article on his Website asserting that the General Counsel of CAV had engaged in blackmail, attempting to obtain financial advantage by deception, stalking and misconduct in public office.[59]
[59]First McCarthy Affidavit, [79]; Exhibit, 330-331.
Non-renewal of practising certificate in 2021
On 19 October 2021, the LIV, as VLSB’s delegate,[60] refused Mr Mericka’s application for renewal of his practising certificate for the 2021–22 practising certificate year. The decision was made on the basis of a report prepared by Judge Gray as an independent reviewer, who concluded that Mr Mericka would not be a fit and proper person to hold a practising certificate unless he removed the allegations of corruption against the VLSB and the VLSC from his website.[61]
[60]The delegation from the VLSB is referred to in the letter of 19 October 2021 from the LIV to Mr Mericka in which the LIV communicated the decision not to renew his certificate: First McCarthy Affidavit, [83]; Exhibit, 332.
[61]First McCarthy Affidavit, [83]; Exhibit, 332-337.
The Undertaking to VCAT, the VLSC and the VLSB and publications following that undertaking
Mr Mericka applied to VCAT for review of this decision (2021 VCAT Application for Review). On 16 December 2021, VCAT ordered, by consent, that the LIV’s decision to refuse renewal of his practising certificate be stayed, Mr Mericka having given an undertaking the day prior including the following terms (the Undertaking):
I, PETER JOHN MERICKA, the Applicant, undertake to the Victorian Legal Services Board, to the Victorian Legal Services Commissioner and to the Tribunal that until and unless the Tribunal otherwise orders or the Respondent otherwise agrees in writing:
1.I will not in my own name, anonymously or under any pseudonym publish or cause to be published or be knowingly concerned in the publication by any other person on the internet, in print media or in any form available to the general public any material whether in writing, audio-visual or any other format that makes allegations of corruption, bias or breach of duty (Allegations) regarding the conduct of the Relevant Individuals either naming the Relevant Individuals or where the identity of the Relevant Individuals can reasonably be deduced from the content of the publication; and
2. I will do all things reasonably necessary to remove or withdraw any such publications which have previously been caused or made by me.
3. I will do all things reasonably requested of me by the Respondent to remove, withdraw or request the removal or withdrawal of any such publications as are identified to me by the Victorian Legal Services Board as having been caused or made by me or on my behalf.
…
5. In this undertaking Relevant Individuals shall include:
a. Any current or former employee of the Victorian Legal Services Board and Victorian Legal Services Commissioner including but not limited to Fiona McLeay, Like [sic] Priday, Danielah Iaocono [sic], Caroline Ward, Daniel Deeks;
b. Any current or former employee of Consumer Affairs Victoria;
c.Any current or former employee of the Law Institute of Victoria or any independent investigator appointed by the Law Institute of Victoria;
d. Any solicitor, law firm or barrister who has acted for or who acts for or represents the Victorian Legal Services Board, the Victorian Legal Services Commissioner or the Law Institute of Victoria;
e. Any Victorian judicial officer or member of a Victorian Tribunal;
f. Any person who has initiated or been involved in a disciplinary complaint or investigation against me.[62]
[62]First McCarthy Affidavit, [86]; Exhibit, 338-40.
The effect of the stay was that, as from 16 December 2021, Mr Mericka was deemed to hold a practising certificate while the proceeding was on foot.[63]
[63]First McCarthy Affidavit, [11]; Exhibit, 60.
After the Undertaking was given and the consent orders were made, Mr Mericka removed publications from the Website and his LinkedIn profile.[64] However, some months later Mr Mericka posted further publications online making allegations directed at the VLSC, the VLSB, VCAT and the Supreme Court. These included:
(a) a comment on LinkedIn made on or about 24 July 2022 that ‘As a lawyer of 30 years’ standing I am appalled at the corrupt conduct of a number of senior public servants, and the way this corruption has metastasised into VCAT and even the Supreme Court of Victoria’;[65]
(b) an allegation that he had ‘caught out’ the VLSC and Legal Services Board in ‘lies and falsehoods’; and asserting that he ‘was a victim of blackmail, perpetrated by a senior public servant who used the threat of false Contempt of Court charges in an effort to cause me loss. When I reported the offence it was covered up, and the offender was later appointed as a VCAT member!’[66]
[64]First McCarthy Affidavit, [87].
[65]First McCarthy Affidavit, [91]; Exhibit, 343.
[66]First McCarthy Affidavit, [95]; Exhibit, 346, 349.
The Tribunal held a hearing of Mr Mericka’s application for review on 24 June 2022, and reserved its decision. The VLSB requested that the publications be removed, which he agreed to do on 19 September 2022, although on the basis that he advised that he did not accept that the material he had posted breached the Undertaking.[67]
[67]First McCarthy Affidavit, [100]; Exhibit, 357-358.
In January 2023, Mr Mericka sought leave to withdraw the 2021 VCAT Application for Review. Deputy President Proctor made orders by consent on 17 January 2023 granting leave to withdraw the review application, and lifting the stay of the decision under review. There was no reference to Mr Mericka’s Undertaking.[68] Mr Mericka subsequently wrote to Deputy President Proctor in January 2023 observing that
As this matter is now functus officio it is my understanding that my undertaking is discharged as of 17 January, 2022 [sic], as [it] does not remain effective in perpetuity.
Please confirm that I am no longer bound by my undertaking of 15 December, 2021.[69]
[68]First McCarthy Affidavit, [105]; Exhibit, 361.
[69]First McCarthy Affidavit, [106]; Exhibit, 362.
An officer of VCAT responded by email to Mr Mericka saying that Deputy President Proctor had asked her to respond as follows:
He made the order dated 17 January 2023 to the effect that the application is withdrawal on the basis of consent orders signed on behalf of both parties. The consent orders made no reference to the undertaking. As such, he is not in a position to make any comment as to the operation of the undertaking.[70]
[70]First McCarthy Affidavit, [106]; Exhibit, 362.
In 2023, Mr Mericka republished numerous articles containing allegations of corruption and criminal conduct directed at Dr Noone, Mr Ussher, employees or former employees of the VLSB, and the VLSC, which had been taken down after the Undertaking was given.[71] He also made further publications making allegations regarding these people.[72] He also published articles alleging again that Sifris J had engaged in ‘conduct in allowing his Court to be used to “launder” corrupt conduct’ and referring to the Chief Justice having responsibility for misconduct including ‘bullying and hounding of lawyers’ and to the ‘bent Chief Justice’.[73] A post on LinkedIn on 27 November 2023 referred to:
… a legal system that allows officers within the Justice Department, including regulators such as the VLSC, VCAT, the Judicial Commission of Victoria and even the Supreme Court to condone and cover up corrupt conduct.[74]
[71]First McCarthy Affidavit, [108]-[118]; Exhibit, 365-402.
[72]First McCarthy Affidavit, [119], [129]-[142]; Exhibit, 403-414, 419-429; Second McCarthy Affidavit, [15]-[17]; Exhibit, 20; Affidavit of Aidan McCarthy affirmed on 4 December 2023 (Third McCarthy Affidavit), [4]-[11]; Exhibit, 10-17.
[73]Second McCarthy Affidavit, [18]-[25]; Exhibit, 21-25 (Post of 27 October 2023); Third McCarthy Affidavit, [10]; Exhibit, 15-17 (post of 2 December 2023).
[74]Third McCarthy Affidavit, [8]; Exhibit, 13.
The evidence as at the time of the hearing on 4 December 2023 was that Mr Mericka’s online publications continued up to at least 2 December 2023, with a comment on LinkedIn on 2 December 2023, which stated, relevantly:
… it’s taken me well over a decade of fighting with Victorian Legal Service Commissioners and a bent Chief Justice, as well as a host of other corrupt individuals, just to prompt an investigation that was initiated by Dr Claire Noone when she was Director of Consumer Affairs, and I’m only now approaching the end game. It’s going to get very interesting now.[75]
[75]Third McCarthy Affidavit, [10],; Exhibit, 16; Transcript 04/12/23, T40.21-.27.
Complaint relating to Mr Mericka’s correspondence with Gadens
In October 2016, in the context of a property transaction in which Mr Mericka was acting for the purchaser, Mr Mericka engaged in a course of correspondence with representatives of Gadens and also representatives of the mortgage broker involved in the transaction, asserting that Gadens had engaged in misleading or deceptive conduct, improper conduct and a scam.[76] Gadens referred the correspondence to the VLSC who brought another disciplinary proceeding in VCAT against Mr Mericka, alleging that the conduct was unsatisfactory professional conduct or professional misconduct within the meaning of ss 296 to 298 of the Uniform Law.[77]
[76]First McCarthy Affidavit, [143]-[49]; Exhibit, 430-438.
[77]VCAT proceeding J22/2017.
In respect of these emails, VCAT, constituted by Judge Macnamara, Vice President, noted that the ‘intemperance, the intensity and the sheer volume of this correspondence in my view calls into question Mr Mericka’s fitness to practise’; and found Mr Mericka guilty of one charge of unprofessional conduct.[78] By orders made 12 December 2018, Judge Macnamara issued a reprimand, and made orders requiring him to undertake psychological counselling and pay the VLSC’s costs.[79]
[78]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [135], [137].
[79]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2019] VCAT 103; First McCarthy Affidavit, [143]–[154].
The VLSB’s submissions
The VLSB submits, on the basis of the conduct described above, that Mr Mericka has behaved in a way that is inconsistent with him being considered a fit and proper person to be a lawyer because:
(a) he has made serious allegations which are scandalous and vexatious and made without a proper basis, and which were also made in an improper manner and in an improper forum. This conduct demonstrates that he is ‘unable to judge the ethical standard that his conduct must meet’;[80]
[80]Plaintiff’s outline of submissions dated 13 November 2023 (Plaintiff’s Submissions), [51], quoting Victorian Legal Services Commissioner v Logan [2022] VSC 97, [11], [32] (John Dixon J).
(b) he has failed to act with courtesy in the course of legal practice in making the various online publications;
(c) he has engaged in conduct which is likely to be prejudicial to, or diminish the public confidence in, the administration of justice or to bring the profession into disrepute; and
(d) he has, by publishing allegations in breach of the Undertaking, failed to obey the law.
The VLSB submitted that Mr Mericka’s actions in making the various online publications should be considered as having occurred in the course of legal practice given that they had a ‘sufficiently close link’ to legal practice by reason of Mr Mericka having identified himself prominently as a lawyer in the publications, and the allegations in the publications were about participants in the legal system, other lawyers, judges, the legal regulator and its officers, and the Director and legal staff of CAV. Alternatively, even if it was not accepted that the publications were made in the course of or connected with legal practice, the requirements of courtesy should be regarded as extending to all publications relating to legal practice that are published to the public at large, as this would serve the purpose of the preservation of the integrity and reputation of the profession thereby supporting public confidence in the legal system.[81]
[81]Plaintiff’s Submissions, [54].
With respect to the submission that Mr Mericka had breached the Undertaking, the VLSB relied on material published by Mr Mericka both in the period while the proceeding remained on foot (16 December 2021 to 17 January 2023) and in the period after orders were made permitting him to withdraw the application on 17 January 2023. The VLSB submitted that:
Given the Undertaking is expressed to continue “until and unless the Tribunal otherwise orders or the Respondent otherwise agrees in writing”, it follows that the Undertaking remains in effect.[82]
[82]Plaintiff’s Submissions, [43].
Given the length of time over which Mr Mericka’s conduct has occurred, and the nature of his conduct in making publications having persisted despite numerous opportunities to desist, the VLSB submitted that the Court can conclude that Mr Mericka is likely to remain unfit for the indefinite future.
In respect of Mr Mericka’s indication of his desire to have his name removed from the Roll, the VLSB noted that this is not consent to the VLSB’s application in terms. The VLSB submitted that while I may not be minded to afford Mr Mericka’s position as much weight as where a practitioner consents to an application to have their name removed from the Roll, Mr Mericka’s position is a matter which can be taken into account.
Analysis
Whether Mr Mericka is a fit and proper person
Given the volume of material on which the VLSB relies in its application for the order that Mr Mericka’s name and particulars be removed from the Roll, it is useful to consider the application by reference to the specific aspects of the failures to meet the standards of fitness and propriety to practise as a lawyer which were identified by the VLSB.
The making of unfounded, and scandalous and vexatious, allegations and failure to meet the ethical standards required of a lawyer
Mr Mericka has, since 2012, and up to December 2023, repeatedly made extremely serious allegations against judges of this Court, and a range of individuals, which were completely unfounded.
The allegations made in the letters to the Chief Justice included allegations that Sifris J was biased and incompetent, had ‘laundered corrupt conduct’, and that the trial his Honour conducted was a ‘sham’, all very serious and quite scandalous allegations. None of the matters raised in the letters to the Chief Justice relating to the judgment of Sifris J had any proper foundation, as found by VCAT, and as Mr Mericka himself acknowledged in his letters of apology sent to both judges. It was scandalous to make the allegations to the Chief Justice, and also to then repeat them in correspondence to the Premier and others. It was scandalous and disgraceful also to accuse the Chief Justice of ‘corruption and a possible perverting the course of justice’ because of her Honour declining to take the action he sought in response to his unfounded and scandalous complaint.
The making of such allegations against a judge in the absence of any basis is a gross breach of ethical standards.
Further, and importantly, raising complaints about Sifris J’s judgment in correspondence to the Chief Justice was an entirely inappropriate way to challenge the judgment or raise allegations of bias. The appropriate method for any challenge, of which Mr Mericka as a lawyer would, or certainly should, have been aware, was an application for leave to appeal the decision; and to the extent that he alleged bias, by a properly made application, identifying the relevant basis for the application, to Sifris J in the course of the trial. As observed by VCAT in the disciplinary proceeding relating to the letters, Mr Mericka had not appealed from the judgment of Sifris J, nor had he at any time in the course of the proceeding raised any concern as to actual or apprehended bias.[83] There is nothing in the evidence to suggest that there was any basis for such an application and certainly nothing in the correspondence to the Chief Justice that identified anything that could conceivably have a proper basis. This indicates a lack of any appropriate judgement exercised by Mr Mericka. Even had he genuinely believed that there was any proper basis on which a submission of bias could be put, for Mr Mericka to fail to raise any perceived issue of bias in the appropriate manner also demonstrates the absence of proper judgement as to the ethical and professional standards required of him to be fit to practise as a lawyer.[84]
[83]Legal Services Commissioner v Mericka [2014] VCAT 1576, [8].
[84]See Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127, 156–7, cited in Victorian Legal Services Board v Gobbo [2020] VSC 692 (Forbes J) and Victorian Legal Services Commissioner v Logan [2022] VSC 97, [10(b)] (John Dixon J).
I agree with VCAT’s characterisation of the conduct in sending the letters, in the 2014 VCAT proceedings, as being ‘conduct that other lawyers of good repute and competency would regard as dishonourable and disgraceful’.[85]
[85]Legal Services Commissioner v Mericka (Legal Practice) [2014] VCAT 1576, 1-2.
All of the observations I have made with respect to the allegations made against Sifris J in the correspondence to the Chief Justice, and against him and the Chief Justice in the correspondence to the Premier and others, apply with even greater force to the public repetition of the allegations in online publications by Mr Mericka. Those allegations having been completely unfounded, it was disgraceful to repeat them and also to allege that the Chief Justice, by not taking action in response to his unfounded and scandalous complaints, was herself ‘attempting to further launder corrupt conduct through the judicial system of Victoria’.[86] The publication of such scandalous information demonstrates not only an ignorance of elementary ethical standards, but, as discussed further below, was foreseeably and likely deliberately calculated to diminish public confidence in the administration of justice.
[86]First McCarthy Affidavit [38]–[39]; Exhibit, 198.
The online publications alleging that the Director of CAV and Mr Ussher were corrupt, essentially on the basis of their role bringing the Supreme Court proceedings in relation to his unlicensed real estate agent practice, were scandalous and entirely inappropriate. The thorough judgment of Sifris J and the conclusions reached by his Honour demonstrate that the proceeding was justified and there is nothing that could support any suggestion that corruption or any kind of impropriety was involved in bringing it. The later allegations that Mr Ussher had engaged in blackmail because he raised the possibility of bringing contempt of court proceedings, and that he had engaged in obtaining financial advantage by deception and stalking were scandalous, were unjustified and should have been known by Mr Mericka to be so. Mr Mericka has not attempted to give any explanation or demonstrate any foundation for the allegations. A lengthy document in which Mr Mericka explained his grievances against Mr Ussher, which was in the evidence tendered by the VLSB,[87] disclosed no proper basis for the allegations and demonstrated the misconceived nature of his vindictive and unrelenting attacks on Mr Ussher’s character.
[87]Letter to Mr Howard Bowles, Acting Executive Director, Complaints and Intervention, Victorian Legal Services Commissioner, from Peter Mericka dated 27 May 2016, First McCarthy Affidavit, Exhibit, 785–829.
Allegations of corruption and criminal conduct on the part of the VLSC and officers of the VLSB were plainly also scandalous and without foundation. The conduct of the VLSC and the relevant officers referred to by Mr Mericka and characterised as corruption in his publications indicate nothing more than that they were taking actions in the ordinary course of their statutory or professional responsibilities. Again, he has not appeared in these proceedings to explain his allegations and has simply advised by correspondence that he stands by them.[88]
[88]Letter of 1 September 2023.
The VLSB tendered evidence of certain publications made by Mr Mericka from late June 2022 to September 2022,[89] while the Undertaking was on foot, contending that they (with the other publications referred to above) involved conduct which is inconsistent with Mr Mericka being a fit and proper person.[90] For example, Mr Mericka published a LinkedIn post on or about 30 June 2022 in which he said:
In my experience Section 57 of the IBAC Act is routinely ignored, with regulators covering up corruption rather than exposing it. This is probably the greatest deficiency rendering IBAC impotent — non-enforcement of current provisions.[91]
[89]First McCarthy Affidavit, [89]–[99].
[90]Plaintiff’s Submissions, [22]–[23].
[91]First McCarthy Affidavit, [89]; Exhibit, 341-2; See also at [98], Exhibit, 355-356, which was a publication on LinkedIn stating ‘Have any legal practitioners experienced the Victorian Legal Services Commissioner using “gaslighting” as a means of punishing lawyers who contest VLSC decisions?’
However, unlike the publications referred to in paragraph [37] above, I did not consider that this or other similar publications, which were published in general terms expressing opinions critical of regulators but not identifying specific individuals nor alleging corruption or criminal conduct, were of such a nature that I could be satisfied that they breached the undertaking. They were also, while imprudent, not in terms which were so discourteous or scandalous in their content that those publications alone would constitute conduct showing Mr Mericka to be an unfit or improper person.
With that minor exception, taking all of the allegations in the correspondence and the publications as a whole, I consider that they demonstrate that Mr Mericka has either consistently failed to appreciate and understand the elementary ethical standards that apply to a lawyer, or has deliberately contravened those ethical standards. The manner in which he raised the allegations demonstrates an absence of knowledge of fundamental aspects essential to legal practice as well as a lack of moral integrity.
Failure to act with courtesy in the course of legal practice
The VLSB also contends that the allegations made in the correspondence to the Chief Justice and Premier, and the online publications, demonstrate a failure to act with courtesy in the conduct of legal practice.
The making of the allegations against the Chief Justice and Sifris J in correspondence plainly involved the most serious and disrespectful discourtesy. Not only the content of the allegations but the manner of phrasing them (including allegations that the Chief Justice was ‘bent’, and Sifris J ‘incompetent’) was unquestionably discourteous and unprofessional. The correspondence, having been sent in connection with the proceedings before Sifris J in which Mr Mericka was representing himself, was also in connection with legal practice. Noting the seriousness of the allegations I consider that Mr Mericka breached the duty to be courteous in legal practice, one of the inherent requirements for fitness and propriety to practise as a lawyer.
As to the allegations published about the Chief Justice, Sifris, J the Director of CAV, the General Counsel of CAV, the VLSC, and staff of CAV and the VLSB, they were also, quite plainly, unprofessional and discourteous. I also accept that they were made in connection with Mr Mericka’s legal practice.
This is because they were made by him clearly identifying himself as a practising lawyer, and in the context of him promoting his legal practice on LinkedIn and by his own Website. The evidence demonstrated that:
(a) In the publications on the Website, Mr Mericka identified himself in the text accompanying his photograph as a ‘Peter Mericka Lawyer and real estate consumer advocate’,[92] and ‘Lawyer and corruption whistleblower’.[93] From at least 14 June 2023, Mr Mericka identified himself on the Website as ‘Peter Mericka B.A, LL.B Lawyer and Whistleblower – Exposing Corruption in the Victorian Legal System’.[94]
(b) On his LinkedIn profile, Mr Mericka identified himself as ‘Peter Mericka Property Lawyer & Consumer Advocate’.[95] Since no later than 16 December 2022, Mr Mericka has identified himself as ‘Peter Mericka B.A LL.B Lawyer — Corruption Whistle-blower’, and states that he ‘Talks about #conveyancing, #legalindustry, #legalpractice and #legalprofession’.[96]
[92]First McCarthy Affidavit, Exhibit, 188.
[93]First McCarthy Affidavit, Exhibit, 198; See Transcript 4/12/2023, T16.28-17.07.
[94]First McCarthy Affidavit, [111]; Exhibit, 367.
[95]First McCarthy Affidavit, [46]; Exhibit, 239.
[96]First McCarthy Affidavit, [101]-[102]; Exhibit, 358-9.
It is also relevant to my conclusion that the allegations were published in the course of legal practice that he made many of the allegations putting forward his legal experience and status as a lawyer as qualifying him to make them. He also made allegations in the context of his interactions with the regulator of the legal profession. For example:
(a) The comment on LinkedIn made on or about 24 July 2022 that ‘As a lawyer of 30 years’ standing I am appalled at the corrupt conduct of a number of senior public servants, and the way this corruption has metastasised into VCAT and even the Supreme Court of Victoria’;[97]
(b) The article titled ‘Legal Services Commissioner — Dilemma for a Junior Lawyer’, discussed his interactions with the VLSB and alleged that the former VLSC had engaged in corrupt conduct and had that there had been ‘a cover up perpetrated by the Legal Services Commissioner at the behest of the Chief Justice’;[98] and
(c) The articles on the website insights.pecb.com related to his interactions with the VLSC in the context of disciplinary proceedings against him.
[97]First McCarthy Affidavit, [91]; Exhibit, 343.
[98]First McCarthy Affidavit, [42]; Exhibit, 203, 212-222.
Publishing material to the public as a lawyer, asserting legal experience as a foundation of what is published, and discussing interactions with the legal regulator are sufficient, in my opinion, to demonstrate that the conduct of publication had a ‘sufficiently close link’ to legal practice that it attracts the duty to act with courtesy. I am satisfied that Mr Mericka’s publications involved a breach of that duty.
Gadens emails
I am also satisfied that Mr Mericka’s email correspondence with Gadens constituted a breach of the duty of courteous dealings in the course of legal practice. The emails were certainly sent in the context of legal practice, given that they were sent by Mr Mericka when representing a party in a property transaction.
The remaining question is whether the language used was discourteous or whether there was some defence to the use of that language. The emails contained allegations by Mr Mericka that Gadens had engaged in misleading and deceptive conduct and inferred that Gadens or its client had engaged in conduct akin to blackmail,[99] bullying, harassment, undue influence and professional misconduct.[100] He also asserted that Gadens had engaged in ‘improper conduct’ which he would be referring to as ‘The Gadens Scam’.[101]
[99]Email of 11 October 2016: First McCarthy Affidavit, [146]; Exhibit, 432.
[100]Email of 13 October 2016: First McCarthy Affidavit, [148]; Exhibit, 436-437.
[101]Email of 14 October 2016: First McCarthy Affidavit, [149]; Exhibit, 438.
In comprehensive reasons on the disciplinary charges based on the Gadens correspondence, Macnamara VP concluded that the allegations in the emails constituted breaches of r 32.1 of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (Conduct Rules), the rule prohibiting the making of unfounded allegations. The question arising, in Macnamara VP’s view, was whether Mr Mericka believed on reasonable grounds that available material provided a proper basis for the allegations.[102] Having carefully analysed the correspondence, the relevant transaction and the legal framework for it, as well as what matters were known to Mr Mericka, Macnamara VP concluded that Mr Mericka ‘had no proper basis, reasonably or otherwise, for the serious allegations that he made against Gadens’.[103] He also concluded that the correspondence was discourteous in breach of r 4.1.2 of the Conduct Rules.[104] Macnamara VP also was required to consider whether the conduct was professional misconduct within the meaning of s 297 of the Uniform Law, which is defined as including:
(a)unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
[102]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [107].
[103]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [114].
[104]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [126].
Vice President Macnamara concluded that the conduct did not reflect adversely on Mr Mericka’s competence and diligence as a practitioner, but that the second limb as to whether the conduct would justify a finding that he was not a fit and proper person to engage in legal practice:
… was more problematic in its application. The intemperance, the intensity and the sheer volume of this correspondence in my view calls into question Mr Mericka’s fitness to practise. The intemperate tone, the making of allegations based upon assumptions which he has not properly verified or verified at all and so forth. Whether these matters are sufficient to make out a breach of Rule 5.1, they are not in my view sufficient for the very grave finding of professional misconduct.[105]
[105]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [135].
Vice President Macnamara did not find that Mr Mericka had been guilty of professional misconduct, but did find him guilty of the charge of unsatisfactory professional conduct as defined by s 296 of the Uniform Law.[106] He dismissed the charge of unprofessional conduct (based on conduct which would be regarded by legal practitioners of good repute as disgraceful and dishonourable) on the basis that while Mr Mericka’s correspondence was ‘unedifying, regrettable, annoying and oppressive’, it did not ‘reach the seriousness of that which would be regarded as disgraceful or dishonourable’.[107]
[106]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [135]–[137].
[107]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [139].
Mr Mericka’s defence to the use of the language in the VCAT disciplinary proceedings, which I now consider as part of the current proceeding, was that the language was excused on the basis of the privilege in Clyne v The NSW Bar Association (Clyne).[108] The High Court in that case recognised that public policy recognises a duty and privilege on the part of counsel to put their client’s case robustly:
The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. [109]
[108]Clynev NSW Bar Association (1960) 104 CLR 186. He first put this argument in an application for summary dismissal of the disciplinary charges, which application was dismissed by Senior Member Smithers in Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 493, [24]–[31].
[109]Clyne v NSW Bar Association (1960) 104 CLR 186, 200-201 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ).
Vice President Macnamara’s careful analysis of the conveyancing transaction, the motivation for Mr Mericka’s criticism of Gadens’ position, and the legal framework led him to conclude that Mr Mericka’s allegations of improper conduct and a ‘scam’ were misconceived and did not have a proper foundation on the matters known to him. The freedom of expression recognised in Clyne did not extend to the communications because the views he was expressing were not directed at his client’s interests but furthering his own strong beliefs about banks and other mortgage lenders in the context of property transactions.[110]
[110]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [126].
This conclusion, with respect, appears to me to be entirely correct. Mr Mericka was free to express his own reasoned views about banking practice in the context of conveyancing, as he did in published articles and online fora.[111] However, in the context of the specific conveyancing transaction, the making of allegations going further in stating that Gadens was engaged in improper conduct was unrelated to any position he could justifiably advance for his client, as it was without a proper foundation. It exceeded the boundaries of what the privilege in Clyne was expressed to protect, and was a breach of the prohibition in r 32.1 on the making of unfounded allegations against another legal practitioner.
[111]Victorian Legal Services Commissioner v Mericka (Legal Practice) [2018] VCAT 1648, [76]–[85].
As to the relevance of the Gadens correspondence to the issue before me of whether Mr Mericka is a fit and proper person to practise law, I consider that if occurring in isolation, it would not be a sufficient basis for a conclusion that Mr Mericka is not a fit and proper person to remain on the Roll. I am conscious that Macnamara VP concluded that while the correspondence involved a breach of rr 4.1.2 and 32.1, and ‘calls into question Mr Mericka’s fitness to practise’ it fell short of constituting professional misconduct.
I do however consider it relevant to take Mr Mericka’s conduct into account in the context of all of the evidence as to his other conduct. The VLSB did not rely prominently on the conduct, rather characterising it as ‘another time when Mr Mericka could have taken the opportunity to sit back and think about the way that he communicates as a legal practitioner and did not’.[112] Occurring as it did after the 2014 disciplinary proceedings before VCAT arising from his correspondence to the Chief Justice and Premier it shows a lack of willingness on Mr Mericka’s part to consider carefully his communications and whether they are justified and appropriate. It is another factor which indicates a lack of fitness and propriety, when considered in the context of his conduct as a whole, and also an unwillingness to change his behaviour, which is relevant to the question of whether he will remain unfit indefinitely, as discussed further below.
Conduct likely to be prejudicial to or diminish the public confidence in the administration of justice, or bring the profession into disrepute
[112]Transcript 4/12/23, T37.9-.13.
Mr Mericka’s published allegations were targeted at elements of the legal system responsible for administration of justice, from judges of the Supreme Court to regulators and their staff. He made scandalous unfounded allegations against them in articles and online posts published broadly to the public, which expressly alleged that these individuals and entities were corrupt, and that Victoria’s judicial system was being used to ‘launder’ or cover up corrupt conduct. It is hard to imagine a clearer case of conduct intended to diminish public confidence in the administration of justice.
It is to be hoped that readers of the publications would understand that there was nothing of substance justifying any of the extraordinary allegations made by Mr Mericka, and that the conduct would not have had the effect of actually diminishing confidence in the administration of justice. However the possibility that it could well have that consequence is indicated by some of the comments responding to and endorsing Mr Mericka’s online posts.[113]
[113]See, for example, responses to some of Mr Mericka’s LinkedIn posts, First McCarthy Affidavit, Exhibit, 419-428.
More clearly, however, the publications making scandalous allegations, in disgraceful terms about members of the judiciary as well as about statutory officeholders and other entities with important regulatory roles within the justice system, when made by a lawyer who prominently identifies himself as holding that position, do tend to diminish public confidence in the legal profession, and bring it into disrepute.
I find that the online publications referred to in paragraphs [23], [30]–[33], [37] and [41]–[42] above did constitute conduct likely to be prejudicial to or diminish the public confidence in the administration of justice, or bring the profession into disrepute, and demonstrated for that reason that Mr Mericka is not a fit and proper person to practise as a lawyer.
Breach of the law
The making of the scandalous and unfounded allegations in the correspondence to the Chief Justice and Premier and in the publications discussed above is sufficient, in all the circumstances, without more, to demonstrate that Mr Mericka is not a fit and proper person to practise as a lawyer.
However the VLSB also contends that Mr Mericka has, by publishing allegations in breach of the Undertaking made in the context of the 2021 VCAT Application for Review, breached the law. Mr Mericka’s conduct in this respect is best considered in two phases — the first in the period between the making of the Undertaking and the withdrawal of the 2021 VCAT Application for Review; and the second after the withdrawal of that application on 17 January 2023.
Period between the making of the Undertaking and the withdrawal of the 2021 VCAT Application for Review
I am satisfied that, in the period after the Undertaking was made, on 21 December 2021, and the date on which VCAT gave leave to withdraw the application, the publications referred to in paragraph [37] above were in breach of the Undertakings. The publications referred specifically to the Supreme Court and VCAT as being responsible for corruption, and to a ‘senior public servant’ who was now a VCAT member having blackmailed him. This was in contravention of paragraph 1 of the Undertaking taken in conjunction with the definition of Relevant Persons in paragraph 5(e).[114] One publication also referred to Mr Mericka having caught out the VLSC and VLSB in ‘lies and falsehoods’, which was in breach of paragraph 1 of the Undertaking in conjunction with the definition of ‘Relevant Persons’ in paragraph 5(a) of the Undertaking.
[114]Which referred to ‘Any Victorian judicial officer or member of a Victorian Tribunal’. While the publication did not name specific judicial officers or tribunal members, in my view the allegation directed at the institutions necessarily encompassed the individual judicial officers and tribunal members, particularly in circumstances where the obligation in paragraph 1 of the Undertaking extended to refraining from publications which enabled the identification of Relevant Individuals to ‘reasonably be deduced from the content of the publication’.
These publications breached the Undertaking. This breach of the law is a very serious instance of conduct which makes Mr Mericka not a fit and proper person to practise law, particularly when taken in conjunction with the allegations made in the prior publications and the correspondence to the Chief Justice and the Premier.
Period after the withdrawal of the VCAT Application for Review
As noted above,[115] it was also contended by the VLSB that the Undertaking continued in effect after the proceeding was withdrawn, so that publications after the withdrawal of the 2021 VCAT Application for Review also contravened the Undertaking. This was said by the VLSB to arise from the fact that the Undertaking was expressed to continue ‘until and unless the Tribunal otherwise orders or the Respondent otherwise agrees in writing’, and there had never been a Tribunal order discharging the Undertaking, nor an agreement by the VLSB to release him. That position was never the subject of any formal confirmation by VCAT. While Mr Mericka asserted the view in email correspondence to VCAT that he was no longer bound by the undertaking by reason of the application having been withdrawn and the VCAT proceeding no longer being on foot, this assertion was not confirmed by VCAT. Deputy President Proctor advised, through the VCAT officer’s email, that the consent orders had no effect on the Undertaking.[116]
[115]Paragraph [47] above.
[116]First McCarthy Affidavit, Exhibit, 362.
It is therefore necessary, before reaching any conclusion that Mr Mericka was in breach of the Undertaking in the period after the VCAT application was withdrawn, that the status of the undertaking from that time is considered.
The Undertaking was given on 15 December 2021, to the VLSB and the VLSC, as well as to VCAT. VCAT has powers to receive undertakings in a range of circumstances, including s 50(5) and s 130(2) of the Victorian Civil and Administrative Tribunal Act1998) (VCAT Act) in the context of making an order for the stay of a decision.[117]
[117]See VCAT Act, s 123(5) (in the context of injunctions), s 130(2) (in the context of conditions on orders to be made by the Tribunal requiring the giving of an undertaking).
Although the Undertaking was given in the context of the VCAT proceeding, as noted by the VLSB it was expressed as an undertaking by Mr Mericka to take the identified steps ‘until and unless the Tribunal otherwise orders or the Respondent otherwise agrees in writing.’[118] The orders by which Mr Mericka was given leave to withdraw the application for review did not expressly discharge or otherwise alter the Undertaking.
[118]First McCarthy Affidavit, Exhibit, 339.
However, it does remain to be considered whether, following the discharge of the stay orders and the withdrawing of the application by the making of the consent orders on 17 January 2023, the undertaking ceased to have effect.[119] There are two possible bases on which it may be said that the Undertaking, at least insofar as it was made to VCAT, was not operative following the making of those orders:
(a) The making of the orders lifting the stay of the LIV’s decision, and resolving the VCAT review application by giving leave to withdraw it constituted the Tribunal making orders which had the effect of bringing the Undertaking to an end, by the terms of the Undertaking itself; or
(b) Insofar as the initial undertakings were made in the context of the Tribunal granting, by consent orders, a stay of the application for the review of the decision to refuse Mr Mericka’s practising certificate renewal, it was accepted by the Tribunal on the basis that it was ancillary to the stay order, or an integral part of the compromise pursuant to which the stay order was made. In these circumstances, and noting the terms of s 130(2) of the VCAT Act, which refers to the Tribunal’s powers to require an undertaking in the context of the making of orders, it is arguably the case that the undertaking was not intended to last beyond the duration of the effect of the specific orders in the context of which it was given.
[119]See, for example, Morgan v State of Victoria (2008) 22 VR 237, [81]–[87].
As to the first possibility, the issue turns on the following language in the Undertaking:
I Peter John Mericka, the Applicant, undertake to the Victorian Legal Services Board, to the Victorian Legal Services Commissioner and to the Tribunal that until and unless the Tribunal otherwise orders or the Respondent otherwise agrees in writing:
...
The evidence does not disclose any agreement by the VLSB to release Mr Mericka from the Undertaking. The question is, therefore, whether the consent orders made by the Tribunal on 17 January 2023 constitute orders which were intended to bring an end the Undertaking. The opening words and the reference to the Tribunal ‘otherwise’ ordering are intended to operate as identifying the time at which the undertaking not to publish certain matters and or take specific related actions would cease to operate. It is difficult to read the word ‘otherwise’, in context, as encompassing general orders that may bring an end to the proceeding, as opposed to orders which would specifically bring an end to the specific undertakings or would permit Mr Mericka to take the actions which he had, by the Undertaking, agreed not to take. I consider that the making of the order giving leave to withdraw, and lifting the stay, do not constitute the Tribunal ‘otherwise ordering’ within the meaning of the Undertaking.
The second possibility is that the Undertaking should be construed as only having been intended to be in force while the stay order was in force, given that it was granted in the context of the Tribunal staying the application for review. In considering this question it is necessary to consider the circumstances in which the Undertaking was given and the stay ordered. The stay was of the decision made by the LIV (acting as delegate of the VLSB) to refuse to renew Mr Mericka’s practising certificate. The effect of that stay was that Mr Mericka’s practising certificate was deemed to remain on foot.[120] Thus the Undertaking can be seen to be part of a compromise between Mr Mericka and the VLSB to stay its decision to refuse to renew his practising certificate, permitting Mr Mericka to continue to practise, in return for Mr Mericka undertaking not to make the offending publications. This compromise was given effect by the consent orders made by the Tribunal on 16 December 2021, which were, relevantly, in the following terms:
1.The Tribunal notes that the Applicant has given the undertakings attached to this order.
2.That operation of the decision of the Respondent made 19 October 2021 is stayed until further order of the Tribunal;
3.If the Applicant breaches the terms of the undertaking attached to this order, then the stay shall be lifted; …[121]
[120]Transcript 4/12/2023, T30.11-.24.
[121]First McCarthy Affidavit, [86]; Exhibit, 338.
Arguably, when the stay of the decision to refuse the practising certificate was lifted, and the application for review withdrawn, the foundation of the compromise between the parties came to an end and was replaced by a new state of affairs – that is, that the decision was no longer stayed, so that Mr Mericka no longer had a practising certificate. There is some basis for the view that the basis for the Undertaking, along with the compromise on which it was founded, was spent when the circumstances changed following the making of the 17 January 2023 orders.[122]
[122]See for example, Morgan v State of Victoria (2008) 22 VR 237, [81], [84].
Ultimately, I do not consider it appropriate to resolve the question of whether the Undertaking continued to have an operation beyond the lifting of the stay and the withdrawal of the 2021 VCAT Application for Review. In a situation where Mr Mericka did not appear and full argument was not addressed to the question, I am not prepared to make a finding that the Undertaking had continued operation, nor more significantly, to make the finding that after 17 January 2023, Mr Mericka was in breach of it, and was thereby in contempt of the Tribunal and committing a breach of the law. I do not take any possible breach of the Undertaking after 17 January 2023 into account in this decision.
In circumstances where I have already concluded that:
(a) Mr Mericka was in breach of the Undertaking until the 2021 VCAT Application for Review was withdrawn; and
(b) his conduct with respect to the correspondence to the Chief Justice and Premier and the publication of scandalous and unfounded allegations was a very serious example of failure to meet the professional and ethical standards required of a lawyer,
I am comfortably satisfied that he is not a fit and proper person to practise as a lawyer.
Whether Mr Mericka’s lack of fitness and propriety is likely to continue indefinitely
Mr Mericka has been sanctioned by the Tribunal in disciplinary proceedings in 2014 and 2018. This has not, apparently, had any material effect on his conduct, given his continuing publication of scandalous and unfounded allegations up to the time immediately preceding the hearing of this application.
A very significant part of the conduct which has in my view demonstrated that Mr Mericka is not a fit and proper person to practise as a solicitor is his correspondence to the Chief Justice and the Premier and the serious and unfounded allegations he made therein, which were repeated in subsequent publications to the public at large. Mr Mericka did, in the context of the VCAT disciplinary proceedings against him, accept that there was no foundation to the serious allegations he had made against the Chief Justice and Sifris J, and wrote letters of apology to them to that effect. In his submissions to VCAT at that time to the effect that the ‘crusade’ against the Director of CAV had ended, he was also representing that he would no longer pursue the scandalous allegations against the Director and the related allegations arising out of the proceeding that she had quite properly brought against him.[123] That submission was plainly material to the disposition of the matter by Senior Member Butcher in VCAT, when he declined to order a fine or to take action with respect to Mr Mericka’s practising certificate.[124] Notwithstanding the letters of apology and the submissions to VCAT, and the subsequent 2018 VCAT disciplinary proceedings, Mr Mericka has continued to publish his baseless and scandalous allegations.
[123]See paragraph [29] above.
[124]Legal Services Commissioner v Mericka [2014] VCAT 1576, [50], [53].
Mr Mericka’s most recent publications and the indication in a post on LinkedIn of 2 December 2023[125] indicate that he has no intention to cease making unfounded and serious allegations of the kind that he has been making since 2012, and in fact give rise to an inference that he intends to continue to make them. Mr Mericka’s correspondence to the Chief Justice of 1 September 2023 in which he advised that he would not be contesting the current application, and that he wished to be removed from the Roll ‘in protest against the ongoing corruption I have experienced at the hands of various officers of the Victorian Justice System, including your predecessor’ and that he ‘does not wish to share the Roll with corrupt public officials’ also demonstrates his continuing commitment to making unfounded allegations of corruption against the Court and others notwithstanding his previous acceptance that the allegations were without foundation.
[125]See above at paragraph [42].
I consider that the evidence establishes that Mr Mericka is likely to continue indefinitely to remain not a fit and proper person to practise as a lawyer.
Conclusion
For the above reasons, I consider that Mr Mericka is not a fit and proper person to be a lawyer and is likely to remain so indefinitely. I will order that Mr Mericka’s name and particulars be removed from the Roll.[126]
[126] The VLSB did not seek an order for costs.
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