… ☞☞☞ … Failed government legal regulator, Victorian Legal Services Commissioner Michael McGarvie and his team of a dozen in-house lawyers are doing their utmost to become the first government officials to be prosecuted and jailed (for up to 2 years on each count) under Victoria’s untested Whistleblowers Protection Act of 2001. This criminally malicious false prosecution reprisal against a constitutional human rights lawyer and whistleblower is the equivalent in medical terms, of a doctor going under the surgeons scalpel for an operation on his finger, only to wake up mid operation, to find that the surgeons have amputated both his legs … against all the odds, survives … only to find the relevant regulatory authorities (chuffed full of surgeon mates of the dodgy surgeons) refuse to investigate the dodgy surgeons and instead initiate malpractice proceedings against the injured patient, not once, not twice, but three times, four times .. and still counting … ☞☞☞ …

Lawyerocracy on Trial – The Very, Very Public, Last Will and Testament of a Failed, Criminal, Legal Regulator

… ☞☞☞ … Yesterday’s proceedings were delayed for 45 minutes while administrative staff scurried to move the hearing from a tiny upstairs room for 8 to the largest auditorium in the building … almost certainly a record crowd for any hearing of any lawyer disciplinary proceeding ever in Australia. These sorts of Tribunal hearings are always one way traffic. But the State government agencies that appear as ‘prosecutor’ and as ‘judge’ are used to things 100% their way. They have never before been subjected to one way traffic that,  like the overflowing public gallery was 100% against them … ☞☞☞ …

 

 

 

Lawyerocracy on Trial – The Very, Very Public, Last Will and Testament of a Failed, Criminal, Legal Regulator

On 21 May 12 nearly 100 members of the public came to 55 King Street, Melbourne to witness the first of these Lawyerocracy Hearings, and what surely must be the last will and testament of Victoria’s failed, and criminal, legal regulator, Legal Services Commissioner Michael McGarvie.

Lawyerocracy on Trial – They came by land, they came by sea, they came by air

The purpose of this report is to give recognition to the wonderfully determined and extraordinarily well-behaved 100 men and women who came to the hearing yesterday. Many, I had never met or had contact with previously. All were prepared to give up their time and to make the effort (some travelling for 4 or 5 hours, some from far interstate) – to quietly say “no more” to the kinds of injustices that they personally have suffered at the hands of corruption and misconduct within the legal profession and allied branches and agencies of government.

In my next three reports, over coming days:

  •  I will put the corruption on display at yesterday’s hearing in the context of the corruption, judicial, lawyer and in some cases police abuse they have suffered in their own lives, and in the context of the massive legacy of corruption and cronyism that the outgoing Bracks-Brumby-Hulls failed government administration has left as its legacy for the 18 month old Baillieu-Clark government to clean up – link to appear here.
  • I will describe some of the grossly disgusting (and grossly criminal) shenanigans that these two Victorian Government agencies (the Legal Services Commissioner and his in-house lawyers, principally, but the Victorian Civil and Administrative Appeals Tribunal, the supposed independent adjudicator, complicity and furtheratively) got up to in the hearing yesterday, and especially at a hastily convened secret hearing late last week (the second hearing in a row that was held without my knowledge until the injustices, unseen were well and truly, done) – link to appear here. 
  • I will provide a comparative head to head score card, recording the professional standards (education, skills, ethics, judgement) of failed legal regulator Michael McGarvie and his band of a dozen in-house lawyers, versus the one and only myself, yours truly – link to appear here.

Yesterday’s proceedings were delayed for 45 minutes while administrative staff scurried to move the hearing from a tiny upstairs room for 8 to the largest auditorium in the building.

Even the large ground floor auditorium was barely big enough to accommodate the growing crowd of determined concerned citizens who came to watch and demand accountability, service and respect, not arrogance, servitude and rule, from these public service agencies of lawyers, that owe their status and their livelihoods to the public taxes pay their salaries.

When these hearings resume on 6 July 2012, as news of these hearings spreads, it is fair to expect hundreds of members of the public, and a much bigger media contingent, will be in Melbourne.

Imagine the prospects of 300 plus concerned, engaged citizens, men and women of all ages and circumstances, filing peaceably into VCAT with the same demands for accountability, for service, for demand for respect for the principles of human rights and government responsibilities.

Imagine 300 plus concerned engaged citizens all demanding that these public service agencies of lawyers recognise (via words, performance and outcomes) the truths that their privileged stations and livelihoods in our society are created and given to them by elected representatives of the people (ie created via our elected Parliaments):

  • to discharge responsibilities and to have and to hold public powers (as long as they justly do their part) that we the people entrust to them (via our elected Parliamentarians)
  • not to use or abuse their positions of trust to extract governing class economic rents or other wastes, spoils, perks or privileges
  • not to rule over us as absolute, unaccountable tyrants, but to govern us as open and beneficial, trustees.

Why all the public interest? Why such massive outpouring of public goodwill and public protection for a lawyer facing false disciplinary charges illegally designed by foolish and corrupt government officials wanting to expel him from practising law for blowing the whistle on corruption within the legal profession and within government?

We live in an age where deliberate government outcomes put the costs of litigation way beyond the reach of most Australians.

But at the same time, litigation is a life-threatening condition both for those foolish enough to start it, but also for those unfortunate enough to be on the receiving end of it.

Litigants might initially think (buoyed by early encouraging advice from a litigation lawyer or two) that litigation is the yellow brick road to recovery or reward for some harm received or for some good not reciprocated. But under the rules and strategies of the game they will very quickly find themselves stripped of their money and assets first (downloaded into lawyers pockets) before they realise that they can’t afford to see it through to the end of the case (which happens at about the time that their lawyers dump them, leaving them unrepresented, to struggle on, well before they are half-way to any trial date).

Key government agencies and practices even go so far as to ensure, by tipping in public monies for the purpose that one side of a ‘civil’ legal battle will be stripped from having resources to afford legal representation, whilst using public monies to load up resources and exploit the barriers created by excessive court costs, to win the battle for the other side to the proceeding. Just where is the democracy, the truth, the justice, the equity, the law in such government funded one sided affairs?

Some with assets but very low incomes might think themselves lucky to be granted legal aid (government agency loans to pay lawyers fees), but only up to the point where the loan balance owing to the government legal aid agency is equal to the most (or less) that can be won from the litigation. Or worse, the loan balance owing to the government legal aid agency is equal to the value of their (mortgaged) home or other assets, at which point, invariably, legal aid will be withdrawn, the home and other assets are lost (have to be sold to pay back the loan to the government for the legal fees) and the legally aided litigant too becomes unrepresented and has to struggle on, well before they are half-way to any trial date.

“Justice is what you get when you run out of money” is how one high ranking former Judge once described the rules and strategies of the game.

It is as simple as the people have suffered so long enough under the tyranny of the lawyerocracy and have come out in force to support a man who shows all the knowledge and skill, and all the determination and promise to deliver on his political pledge to expose corruption within the legal industry, and to compel the Victorian (and Australian) Parliaments to do something about it – even if he has to be elected to Canberra to do it.

Red Carpet Recognition – Lawyerocracy on Trial

Every one of the 100 members of the public who attended the hearing yesterday will receive an autographed copy of the (Tribunal’s own, official) audio CD Recording of the day’s proceedings. They will also have their names up in lights in the credits to the documentary of these hearings, “LAWYEROCRACY ON TRIAL”. And they will be invited to walk down the red carpet to watch the world premier of the documentary, later this year.

That’s my way of paying respect to each and every one of you for travelling (some for as many as 6 hours) to be part of this humiliating (for corrupt government officials) tribunal – and for demanding to know how the government, the legal regulator, and the legal profession as a whole, can justify what they are doing to the what is the government not doing for you.

In my book, to have survived what each of you has endured, at the corrupt hands of unscrupulous and unethical lawyers, a crooked lawyer-favouring judicial system, and to be able to endure sitting in a place of such injustice and corruption as VCAT was yesterday (no doubt enduring waves of traumatic flash backs as you relived corresponding injustice and impropriety from the lawyers in your own personal litigation nightmare), in my book each and every one of you is a hero.

A Dickens of a Carroll

Every one of the 100 members of the public who attended were treated to an entertaining day’s entertainment. These sorts of Tribunal hearings are always one way traffic. But the State government agencies that appear as ‘prosecutor’ and as ‘judge’ have never before been subjected to one way traffic that, in harmony with the mood from the overflowing public gallery was 100% against them.

I will provide a separate report on the farce, the corruption and the blatant illegality of the actions of the government agencies and officials that were at play in the proceedings yesterday. As I have reported previously, neither the fertile imaginations of Dickens nor Carroll could have dreamed up the things that were said and done yesterday (let alone what must have transpired at the secret, government agents only, hearing late last week – which couldn’t possibly have waited another two days so that I and the people could know of and be present at what went down on what will be marked as a day of infamy last week).

Criminal Reprisals against a highly credentialled whistleblower

On 21 May 2012 the 100 member of the public were there to hear ridiculous, false charges brought against me, one of the best and brightest and one of the most original legal minds of my generation, by way of a blatant criminal vendetta, the latest in a series of reprisals against me for blowing the whistle on corrupt lawyer in legal practice, at the Victorian bar, and amongst senior Government officials and amongst the benches of the Victorian and Federal judiciaries.

It hardly bares repeating that the corruption and misconduct I have blown the whistle on during these past 4 years includes corruption and misconduct by Mr Michael McGarvie, as Legal Services Commissioner, and by his disgraced predecessor, former Legal Services Commissioner Victoria Marles.

It also includes several of his in-house lawyers, who remain actively involved in this malicious prosecution initiated by Michael McGarvie against me (as I predicted it would be, over 3 years ago). I have also blown the whistle on serious, criminal corruption and misconduct by the two informants that triggered Michael McGarvie to initiate this latest criminal reprisal by way of false prosecution against me. I named both those gentlemen in the proceedings yesterday – a notorious barrister and member of the Victorian Bar, and a notorious Federal Magistrate.

The Victorian Barrister, the Federal Magistrate and the Legal Regulator

Both the Victorian Barrister the Federal Magistrate and the Legal regulator are co-defendants in a $50 million Supreme Court damages counterclaim (for fraud, negligence, misconduct in professional / public office and criminal defamation), which might have something to do with why this malicious and absurd prosecution has been launched against me, without charges, without informants on the record and without evidence? All of which the far from modern major “model litigants” in the Legal Services Commissioner’s office are doing their best to kept secret from the Tribunal. Well that secret is well and truly out now.

But of course the any correspondence between the the $50 million law suit against them and this third rerun of twice dismissed false allegations against me is purely coincidental, right?

Isn’t it obvious on the facts why I am subjected to disciplinary proceedings, which the Victorian Barrister, the Federal Magistrate and the Legal Regulator (and I dare say several dozen other corrupt and unprofessional lawyers that I have blown the whistle on) hope that they will succeed in having me struck out of the legal profession, denied my rights to earn my livelihood?

The indisputable facts show that I have never stolen a penny of clients monies. Nor have I ever cheated on my taxes. Nor has the legal regulator ever, in over 20 years, received a single complaint against me from any of my many prestigious clients or former clients. Nor have I ever committed or been charged or been prosecuted for any serious (or even trivial) criminal offence. Nor am I accused of any such things by the legal regulator and his posse, today.

Yet if the Victorian Civil and Administrative Claims Tribunal rubber stamps the irrefutably corrupt and failed Legal Services Commissioner’s unauthorised and illegal reprisal prosecution against me, as it seems it clearly wants to and will, I will become the first lawyer from any Top 10 Australian international law firm ever to be struck out of the profession, let alone for doing no wrong but for doing plenty that is right.  

As I see it, if claiming my whistleblowing scalp is what it takes to be the last will and testament of this corrupt and failed legal regulator, if this is what it takes to finally trigger Spring Street to spring into action, well in the scheme of things that is a small (and repairable) personal and political sacrifice for these insipid government agencies to make of me

For all of my whistleblowing, a last gasp delusional and desperate Mr Michael McGarvie and his staff of a dozen in-house lawyers still pretend they “are not reasonably satisfied” that I am a “whistleblower.” Not only are they refusing to comply with Victoria’s decade old Whistleblowers Protection Act of 2001, but are actively breaking those untested laws, doing their utmost to become the first Government officials to be jailed (for up to 2 years) for engaging in criminal reprisals against whistleblower.

This is by far more blatant and more serious criminal misconduct, criminal whistleblowers reprisals against me than any of the dreadful things that the Legal Services Commissioner and his side-kicks have done, or even failed to do, before.

It is impossible to see how they will escape being suspended, prosecuted, convicted and jailed (for maximum periods of up to 2 years per each offence), once public news of these outrages gets out, and the Parliament and genuine law enforcement agencies are compelled to act.

Just how much of a failure, and a now clearly criminal, legal regulator are Michael McGarvie and his dozen in-house lawyers and side-kicks?

This is how the Legal Services Commissioner describes his one stop service self – via his two shop stop websites:

THE LEGAL SERVICES COMMISSIONER

The one stop service gateway for the fair, independent and efficient handling of complaints about lawyers.

 Welcome to the website of the Legal Services Commissioner.

 The Legal Services Commissioner is an independent agency responsible for handling complaints about lawyers in Victoria. The Legal Services Commissioner was established on 12 December 2005 under the Legal Profession Act 2004


The Legal Services Commissioner works with the legal profession and consumers of legal services to improve standards and increase awareness of lawyers’ obligations to their clients.

and:

THE LEGAL SERVICES BOARD The Legal Services Board is responsible for the regulation of the legal profession in Victoria. The Legal Services Board aims to ensure the effective regulation of the legal profession and the maintenance of professional standards.The Legal Services Board is an independent regulator that protects consumers and enhances the integrity of legal services in Victoria.

This is how the Legal Services Commissioner describes herself, on a one to one basis to her customers, in rote letters of the kind she used between December 2005 and March 2009, after they summon up the strength (after a long and arduous financial, emotional and often physical beating on account of their lawyer not being up to the job) to file a complaint:

I refer to the complaint that you have made recently against Mr Lawyer.After considering this matter carefully I must inform you that I have dismissed your complaint pursuant to section 4.2.10 of the Legal Profession Act 2004 (“the Act”).I have closed your file pursuant to section 4.3.20 of the Act because the concerns that you raise in your complaint can be said to be relevant to the Court proceedings on foot. It is not, therefore, appropriate for me to intervene.

You should note that you will need to raise those conduct issues in the Court. If you fail to do so, my office cannot then subsequently investigate your allegations. This results from a 1993 decision of the Supreme Court of Victoria in the case of Delahunty v Howell and Mann. In that case, the Court decided that the parties to the litigation must bring forward all disputes arising out of the same subject matter for determination in the same proceedings.

Yours sincerely,

VICTORIA MARLES

Legal Services Commissioner

per: ”

I twice took the thrice disgraced former Legal Services Commissioner Ms Victoria Marles to the Supreme Court, to have the Supreme Court of Victoria read to her (directly from the Legal Profession Act 2004) what her powers were.

On the first occasion, as then Legal Services Commissioner Victoria Marles sat cowardly in the corridoor inside the Supreme Court complex, wooden bench outside the door to Court Room 5, the Supreme Court Judge ruling confirming that her office did have the power to regulate, investigate and to prosecute lawyers who were not up to the job, saying words to the effect that he was conducting a trial between two (actually two plus two, at that stage) parties and did not have the policing powers, the budgetary resources or the staff to halt the trial, break off on a tangent and undertake an investigation of the professional standards of one of the lawyers who initiated and now was engaged (as one of the plus two parties) in the proceedings. At the time, that seemed like a pretty sensible ruling.

Never the less, after that Supreme Court ruling was issued, this is how the Legal Services Commissioner (by Victoria Marles and for the last year before she resigned in disgrace, and for the latest two years reign by her by all accounts equally or even more disgraceful successor Michael McGarvie) continues to describe himself to customers who summon up the strength etc to file a complaint:

I refer to the complaint that you have made recently against Mr Lawyer.After considering this matter carefully I must inform you that I have dismissed your complaint pursuant to section 4.2.10 of the Legal Profession Act 2004 (“the Act”).I have closed your file pursuant to section 4.3.20 of the Act because the concerns that you raise in your complaint can be said to be relevant to the Court proceedings on foot. It is not, therefore, appropriate for me to intervene.

You should note that you will need to raise those conduct issues in the Court. If you fail to do so, my office cannot then subsequently investigate your allegations. The parties to the litigation must bring forward all disputes arising out of the same subject matter for determination in the same proceedings.

Yours sincerely,

VICTORIA MARLES

Legal Services Commissioner

per: ”

Spot the difference?

The 1993 Supreme Court case of Delahunty v Howell and Mann * was a very curious situation, involving a two steps earlier regulatory regime to the one that exists today, created 11 years later (2004) with the creation of the role of the Legal Services Commissioner. Certainly it could have no ongoing legal relevance to the 2004 Legal Services Commissioner, on the basic High School legal points that new laws over-rule older, inconsistent laws and, above all, parliamentary laws (Acts of Parliament) over-rule inconsistent earlier judicial laws (Legal Case Precedents). Rote Letters such as this, issued by the hundreds and thousands, are another damning indictment that the 2008 Legal Services Commissioner, Ms Victoria Marles and her in-house legal team lacked the technical legal skills of a typical year 7 High School Student. *

Not only does the Legal Services Commissioner and his dozen in-house lawyers’ standard business practice involve chucking the complaints that it plays at investigating (as State Government Ombudsman Victoria blew the whistle on in his ‘case study’ of the Legal Services Commissioner described in his damning 2009 Annual Report to Parliament).

Even before the Legal Services Commissioner and staff pick a few complaints to pick over, the vast majority of complaints are rejected with an “evil, dumb … heartless … almost sociopathic” single rejection letter, spewed out by the hundreds and thousands ever year, year after year, to people who have lost much and often have lost everything, and are entitled to and deserve so much better.

It is all far too Nazi for my liking. These victims need counselling and support and protection. All the signs of post-traumatic stress, of continuing lawyer abuse distress syndrome (a medically and legally recognised psychological trauma – not the accompanying financial trauma – and capable of forming a claim for legal damages for compensation) are so obvious with many of them. Especially with many of them having ongoing legal / lawyer battles consuming much and even all of their day to day lives.

Small wonder that the Legal Services Commissioner is now the number one customer (failed regulatory agency), year in year out of the State’s regulators’ regulator, the State Government Ombudsman Victoria, Mr George Brouwer’s Office clocks up close to 2 complaints a week to the Mr Brouwer’s office – around 100 complaints a year. Only the prisons system (with a population of more than annual 2,500 complainers) generates more more “up the line” complaints to the State Government Ombudsman than are generated by unserviced clients of the Legal Services Commissioner.

Legal clients who are let down by their lawyers and then let down by the lawyers “co-regulator, no-regulator” which to all accounts (even contemporaneous accounts from 2004 and 2005) was schemed-built-owned-operated-dominated from the start by lawyers to run a publicly funded protection racket, protecting bad lawyers from the public (and whistleblowing lawyers such as myself) rather than doing as it says in its written statutory charter, propaganda and legislation.

Lawyerocracy on Trial – The Trail of Mis-Government Mass Destruction

Back to each of the 100 members of the public who came to the opening LAWYEROCRACY ON TRIAL HEARING, yesterday, 21 May 2012.

As I explained to the Tribunal (after talking with most of them during the 45 minute early morning delay), each of them is a disgruntled customer of the Legal Services Commissioner, let down by a legal regulator not being up to the job. Each of the 100 received one or more letters of the kind that I described above.

Personally, I received from the Legal Services Commissioner at least 4 of the first kind and more than a dozen of the second (and no different) kind. And with a certain predicable zero outcome, totally overwhelmed by other legal proceedings facing all manner of government and judicial obstruction, and having to confront serious realities such as being denied Police protection from violent crimes (like aggravated burglary, and car bombing), and having no where safe to live, and being left stranded with forced closure of my legal practice and no obvious source of income, another dozen complaints that should have been made to the non-engaging Legal Services Commissioner simply never got made.

Receiving letters from the Legal Services Commissioner telling me that I could not complain about group misconduct of 3 or 4 lawyers in the one complaint, but had to rewrite my complaint 4 times, referring to only one lawyer in each, this just added more government failure and more government cruelty to the process.

Receiving letters form the Legal Services Commissioner telling me that, in effect, I had to do the investigation and send them a Royal Commission Final Report standard of complaint, this just added more government failure and more government cruelty to the process.

And just about every one of the 100 members of the public, the concerned and engaged citizens that I met yesterday when they came to watch over me as I walked into the “lions’ den” of government injustice and corruption that these proceedings represent, just about every one of them has received one or more of these letters, from the Legal Services Commissioner,

I explained all this to the government lawyers, the Tribunal Member, the not so “independent adjudicator”, and the Legal Services Commissioner’s team of 4 in-house lawyers (two sitting away from the bar table, trying to appear “independent” and refusing to admit any connection with the Legal Services Commissioner’s legal team).


When the Tribunal Member gave them the “it’s a privilege [sic not a right] that you are allowed to sit here” ‘/ “the public should be seen and not heard”] sermon, shamefully from his elevated bench top for expressing their pain and grief and disgust at some of the things that the two Government agencies were saying and proposing, I explained to and for them, for the public record, that just about every member of the public sitting in the gallery had gone through or were still going through the same process of lawyer and judicial (and even VCAT) abuse. All have lost income and assets to lawyers. Many were fighting to extricate themselves and the remains of their former assets and income from the clutches of legal processes and administration. stripped of income, wealth.

Of the 100 members of the public who turned up at the hearing yesterday, there were some who were victims of debtocracy and bankruptcy legal abuse, there were some who were the victims of traffic infringement abuses. Some were survivors of Australia’s genocidal family court process. Some were victims of wills and estates fraud. Some were victims of nasty corporate frauds. Some were victims of improper police violence. All sorts of lawyer (solicitor, barrister, judge, bureaucrat, police officer) abuse and corruption that I have investigated, experienced, and sought to counsel and support similar victims.

Just about all of them were within the 2000 plus complaints rejected by the Legal Services Commissioner at least once in each of the past 8 years, giving a grand total of anything up to 16,000 complaints to the lawyers regulatory agency, of which perhaps as few as 1000 in 8 years may have been investigated, and perhaps as many as 15,000 may have gone totally unheard, regulatory protection wholesale denied, with the mocking words: “… after considering this matter carefully [sic] I must inform you that I have dismissed your complaint …”

No wonder the public turned out in force yesterday. A few short of the 30,000 who turned up in the 1880s to demand clemency for Ned Kelly (who had the distinction of having at least committed and been prosecuted on charges and evidence for a few crimes). But still almost certainly a record crowd for any hearing of any lawyer disciplinary proceeding in this State, perhaps ever in Australia.

Where to from here, for Affirmative Public Action

Having opened the door, having stood up and said “no more” to the oppression, the misconduct and corruption, it is important that the public interest in these proceedings continue to build, up to and beyond 6 July 2012.

It is important that the public take the time to tell relevant government officials (especially elected parliamentarians) that they need to take action to shut down the great wrongs that the Legal Services Commissioner has been doing, and the even greater rights that it has been refusing to do, for these past 8 years.

And it is important for the public to take the time to spread the word not just privately and through social media, but by agitating more in the mainstream media to tell the story.

Where to from here for “corruption busters” Baillieu-Clark government?

I call on the Victorian Premier and Attorney-General to reprioritise its program for cleaning up the corruption and cronyism that is Victoria after the 12 years of being run into the ground by the failures and the lost opportunities of the Bracks-Brumby-Hulls.

I ask that priority be given to cleaning out the corruption that has taken grip in the legal profession.

The problem is as an undeniable big black hole. But the solution is hardly rocket science.

The Baillieu-Clark government needs only to abolish the failed Hulls’ “co-regulation is no regulation” protection racket that is the Legal Services Commissioner (as it was designed and predicted to be) and restore the reforms that the Kennett-Wade government brought to Victoria in the mid 1990s, such as the reintroduction of the independent (of lawyers) Legal Ombudsman Scheme Victoria with, most importantly, a capable and incorruptible regulator of the calibre of Kate Hamond at the helm.

  • I call on the “regulators’ regulator”, State Government Ombudsman Victoria, Mr George Brouwer, to demonstrate his mettle once again by advocating to the Premier, the Attorney- General and to Parliament, the urgent necessity for these reforms.
  • I also call on George Brouwer to immediately auto-investigate (or is it, simply follow up on) not just my specific charges, but the 13000 complaints that will have been either brick-walled or chucked by Ms Victoria Marles or by Michael McGarvie and the team of lawyers at the Legal Services Commissioner since its inception in December 2005.
  • I call on Attorney-General Clark to review and to advise me what and how such charges under the Whistleblowers Protection Act of 2001 (and other corresponding public laws) should be investigated and brought against Mr Michael McGarvie, his predecessor Ms Victoria Marles, and those of hers / his in-house lawyers principally responsible for these criminal reprisals against me. This advice from Mr Clark should include firm commitments and descriptions of the protections and supports that will be given to me as required by law under the Whistleblowers Protection Act and as required by broader principles of truth, justice, equity and the law.
  • I call on Attorney-General Clark to take appropriate disciplinary actions (including criminal prosecutions) for the double-edge failings of the Legal Services Commissioner against me, not just for the abovementioned criminal reprisals, but also for the failings of their office for refusing to deal not with just my complaints regarding lawyers (including many of themselves) not up to the job, not just the complaints of the 100 who attended the illegal VCAT hearing yesterday, but the investigate not just my complaints.
  • I call on Premier Ted Baillieu and Attorney-General Robert Clark not to hurry to implement these reforms and investigations, and please not shirk or delay their responsibilities, as responsible Ministers for the operation of the Legal Profession Act 2004 and the Whistleblowers Protection Act 2001 .
  • And I call on Premier Ted Baillieu and Attorney-General Rob Clark not to shirk their responsibilities to the public to reintroduce, as a priority and without delay, the 1990s legal industry reforms and consumer protections that were put in place by their predecessors former Liberal Premier Jeff Kennett and former Liberal Attorney-General Jan Wade.

Surely even with all of the other corruption and cronyism throughout the benches and branches of Government, the legacy of more than a decade of Bracks-Brumby-Hulls running the once great State of Victoria into the ground, Premier Ted Baillieu and Attorney-General Rob Hulls must act decisively to abolish the Legal Services Commissioner, a government agency well recognised for years as a monumental failure and a public disaster.

And they must see that the disgraceful Legal Services Commissioner (both Michael McGarvie and his predecessor, disgrace, Ms Victoria Marles) and their relevant in-house lawyers are made examples of being suspended, charged and prosecuted as the first government officials to have be jailed for violations of the State’s still untested 2001 Whistleblowers Protection Act.

James Johnson

Independent Federal Candidate for Lalor

22 May 2012

* Footnote: Delahunty v Howell and Mann – putting an estoppel to disciplinary proceedings

The 1993 Supreme Court case of Delahunty v Howell and Mann was a very curious situation, involving a two steps earlier regulatory regime to the one that exists today, created 11 years later (2004) with the creation of the role of the Legal Services Commissioner Certainly it could have no ongoing legal relevance to the 2004 Legal Services Commissioner, on the basic High School legal points that new laws over-rule older, inconsistent laws and, above all, parliamentary laws (Acts of Parliament) over-rule inconsistent earlier judicial laws (Legal Case Precedents). Rote Letters such as this, issued by the hundreds and thousands, are another damning indictment that the 2008 Legal Services Commissioner, Ms Victoria Marles and her in-house legal team lacked the technical legal skills of a typical year 7 High School Student.

In that unreported Supreme Court decision of Delahunty v Howell and Mann way back in 1993 under that obviously inadequate solicitors’ regulatory regime (it has been radically overhauled 3 times since) Justice Gray of the Supreme Court protected a solicitor, Howell, from disciplinary proceedings for alleged professional negligence that were being brought against him by the then Registrar of the Solicitors Board, a Mr Delahunty, on the basis of information laid by a former client, a Mr Mann. Previously, Mr Mann had hired Mr Delahunty to take legal action to recover a modest debt. Mr Delahunty had done a bad job, allegedly, Mr Mann lost his case, and Mr Mann refused to pay him. Mr Delahunty then sued Mr Mann for his unpaid fees, and it appears he may have been successful. What is clear is that Mr Mann was not represented by a lawyer in those proceedings. Nor did Mr Mann raise a counterclaim citing negligent work by Mr Delahunty.

This was back in 1993, back when legal clients in Australia (and indeed everywhere else in the world) could sue their litigation solicitors if they were not up to the job. In the United Kingdom, legal clients got additional legal rights (I would say, constitutional and human rights) by a 15.0 decision of the English Law Lords of the House of Lords, allowing them to sue their negligent barristers (of which history proved there to be relatively few) as well as their negligent solicitors. Australia of course, in 2004 went 5,000% the other way, to every other country in the world, over the protests of Hon Justice Michael Kirby, ruling 6:1 in a $5,000,000 publicly funded lawyers picnic, whereby Australia became the only nation in the world where it is against the law for legal clients to sue their (possibly few) negligent barristers (still) and it became against the law for legal clients to sue their (statistically, perhaps 50 times more numerous, and anecdotally more common) negligent litigation lawyers.

But back in the days of 1993, Mr Mann could have issued legal proceedings against Mr Delahunty seeking compensation for damages from the negligent misconduct and loss of his legal case. It is against current Australian law for Mr Mann’s children to sue Mr Delahunty’s children (if any, they will be lawyers, probably family lawyers).  But even for Mr Mann in 1993 that was a difficult and expensive (and more than likely unaffordable) and risky exercise. Delahunty’s pay packet (and the steady redistribution of income and wealth from Mr Mann to Mr Delahunty) would perhaps quadruple in the event that the (probably unrepresented) Mr Mann was not more successful at suing Mr Delahunty (ie a better non-lawyer litigator) than Mr Delahunty (a litigation lawyer) had been at suing his debtor for him.

But the failure of the unrepresented Mr Mann to raise a negligence counterclaim when Mr Delahunty sued him for his fees was seized upon by Mr Delahunty, and grabbed at by Judge Gray, as a basis for saying to Mr Howell, the Registrar of the Solicitors Board (kind of a fusion of the bicephalous Legal Services Board – Legal Services Commissioner two-headed regulatory monster that the Bracks-Brumby-Hulls government gave to Victoria in 2004) that Mr Howell could not issue disciplinary proceedings against.

The irony should not be lost. No doubt public and parliamentary reactions to outcomes such as Justice Gray’s judgement protecting Lawyer Delahunty were a driving force for the 3 major overhauls, including the far superior Victorian Legal Ombudsman Scheme that preceded the Legal Services Board – Legal Services Commissioner scheme, in the first place.

Nor should the irony be lost that in a 2008 VCAT decision of Alaskashir v Lennon Mazzeo Lawyers (Legal Practice) (2008) VCAT 1792 (24 July 2008) where the principle in Delahunty v Howell and Mann was applied in almost identical circumstances to deny justice to an injured client and to protect from disciplinary investigation a possibly negligent performing solicitor, the VCAT Tribunal Member who presided over that hearing and applied the 1993 judgement (to 2004 enacted legislation) was a Senior Member Malcolm Howell.  

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4 thoughts on “Lawyerocracy on Trial – The Very, Very Public, Last Will and Testament of a Failed, Criminal, Legal Regulator

  1. The 3 eastern state legal services commissioners in NSW, QLlD and Victoria were all based on similar models; the protection of lawyers with no oversight of complaints. They are easily the worst performing states with respect to their official tribunal referrals of legal practitioners but most receive the most complaints per year. For example OLSC NSW receive on average 2055 written complaints per year but refer only 5 lawyers to tribunal each year….compare that with Tasmania who only receive an average of 104 written complaints per year but refer over 8 lawyers per year! OLSC NSW is the worst performing legal regulator then closely followed by Victoria OLSC. The legal regulators a criminal fraud on the Australian people

  2. Its quiet clear to me that the only people who can decide this issue is a jury of 12 who are informed of their rights and the matter is heard in a chapter 3 court as per our constitution.
    The rest is just a dog and pony show that plays into the hands of the criminal elements in our system. We need to adopt the healing approach not confrontational approach.

  3. The highest and most accepted Golden Rule of all Divine Law is that, “all are equal under the law and subject to the law”. Any law that attempts to abrogate this fact is null and void ad initio and is not a valid law.
    Ask any judge to deny the above. They will be damned if they do!

  4. Im no hero James. You’re the HERO. We are all so very blessed & honored to have met ye. You’ve been batting for us ALL for years behind the scenes. Your soul & mine will never be SOLD to the highest bidder. You are a WARRIOR. Every step of this corrupt process against you I’m right besides you… Youre not alone. Blowback is now their problem… A national record WOW, it’s something to tell my daughter Liberty, she’ll be proud of her DAD 1 day.. Jimmy, until we meet again, TIOEFAIDH AR LAR… OUR DAY WILL COME…. AdAm

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