In the first part of this article , we looked at some of the weaponry and tactics used by civil servants when confronted by a whistleblower, and I gave examples from my own experience in dealing with the Victorian Legal Services Commissioner (the legal profession regulator in the State of Victoria, Australia). I started with a complaint made by “Mr. U,” a corrupt civil servant who apparently became obsessed with thwarting my efforts to franchise a business innovation I had developed.
In this part, I will describe my experience in dealing with Mr. U and how, with patience, perseverance and a little luck, I was able to expose him as corrupt and similarly expose others who had become tainted by his corrupt conduct.
I heard a knock at the door, and when I opened it I met a smiling lady who handed me a Supreme Court Writ and told me that I had been formally “served.” I was to appear before the Supreme Court of Victoria so that a determination could be made as to whether or not my business concept (lawyers selling real estate on behalf of their vendor clients) was permissible in the State of Victoria.
The writ had been prepared by the Solicitor for the Director of Consumer Affairs Victoria, a Mr. U, with whom I had had no dealings previously. Mr. U had not attempted to discuss the matter with me, and I had never been informed that proceedings before the Supreme Court were contemplated; I was taken completely by surprise.
Some years earlier, I had been involved in discussions and negotiations with the Department of Consumer Affairs and they had conducted a number of investigations into my business model. The professional organization representing real estate agents in Victoria, the Real Estate Institute of Victoria (REIV), was concerned that my concept would severely impact their industry and they had been pressuring their regulator, Consumer Affairs Victoria, to do something to prevent my concept from gaining further popularity.
Something of a truce had been reached whereby I undertook to remain “compliant” (although this was never defined or explained) and Consumer Affairs Victoria would not pursue the matter any further. To confirm that all was in order, I actually asked Consumer Affairs Victoria to provide me with guidance regarding compliance and satisfying any requirements or guidelines they may wish to put to me. In response I was simply told that Consumer Affairs Victoria did not wish to tell me how to conduct my business.
Over the next few years I sold over 200 properties for my clients. But this all changed after a television broadcast which described my business concept as a consumer-friendly alternative to traditional estate agents.
The scene was now set. Although I was not being prosecuted (I had done nothing wrong), I was forced into extremely expensive litigation against an adversary with deep pockets and expensive Senior Counsel, driven by a man with something to prove to his superiors and perhaps to those who might be able to enhance his future career prospects.
Mr. U had left me with no alternatives; I had to close my business, or I had to go to Court.
A man with a plan
Mr. U was a man with a plan. It was clear to me that the plan was not an objective investigation, nor an attempt to protect consumers; instead, it was a plan to stop a suburban legal practitioner from “rocking the boat” for Consumer Affairs Victoria and the powerful real estate agent lobby.
Loss in the Supreme Court
The Supreme Court case was full of absurdities. One of the reasons I lost was a change in legislation of which I was unaware, but Mr. U knew about (but did not share with me as a “model litigant” should). As legal practitioners, both I and my incorporated law firm enjoyed an exemption under the Estate Agents Act that allowed lawyers to negotiate real estate transactions on behalf of their clients. However, due to a subtle change in the Legal Profession Act, an incorporated law firm was no longer regarded as a “person” and therefore no longer required to hold a Practicing Certificate. But this also meant that an incorporated law firm could no longer enjoy the exemption that allowed lawyers to sell real estate for their clients.
It was submitted to the Court that, although my law firm no longer enjoyed the exemption, I was still exempt, and so there was no breach of the Estate Agents Act. The Court favored Mr. U’s assertion that my law firm was the party selling the real estate, and although I might personally have an exemption, I was simply aiding and abetting my law firm in breaking the law!
This was just one absurdity, and it was subsequently commented upon by a leading property lawyer as being so. Interestingly, no other law firm in the State of Victoria has been taken to task over this, and I remain the only lawyer in Victoria who is required to hold an Estate Agent License simply to negotiate real estate transactions on behalf of my clients.
The loss in the Supreme Court was crippling. It cost me and my wife over $250,000 and we had to sell an investment property we had purchased as part of our retirement plan, just to meet the costs.
Mr. U’s conduct immediately after the Supreme Court decision was disgraceful. Suffice it to say that the Consumer Affairs Victoria website crowed about its great victory on behalf of consumers. Mr. U won an order that my website had to carry a notice to consumers that I had engaged in “misleading and deceptive” conduct, merely for stating that lawyers were entitled to sell property for their clients, and I was required to publish similar warnings in two major newspapers.
Mr. U was megalomaniacal in his pursuit of me from that point on, but then he over-played his hand.
I had been ordered to publish advertisements in two major newspapers regarding the decision of the Supreme Court, and I did as the Court ordered. However, I also published immediately below each advertisement and additional advertisement of my own. I invited readers to find out the full story on the matter by going to a page on my website.
This infuriated Mr. U, who then sent me a threatening letter. In this letter, Mr. U claimed that he had been instructed by the Director of Consumer Affairs to order me to re-publish the Court ordered advertisements, but without adding my own ad. The letter went on to say that if I did not do as I was told, “contempt of court proceedings would certainly be initiated.” I was also given a short deadline by which to accede to Mr. U’s demands.
As a former Victoria Police Detective, I could see that Mr. U’s demands fitted squarely within the definition of the criminal offence of blackmail, also known as extortion, and so I instructed my lawyer to respond to Mr. U accordingly.
After being told that his own conduct was questionable, Mr. U telephoned my lawyer in a fit of pique, telling him that he would “crush” me and ruin my business.
Qualities required of the whistleblower
I use the terms “qualities,” at the risk of sounding conceited, in the sense that there are certain skills and characteristics that a whistleblower must either possess or develop in order to maintain good mental health as well as control over the situation as it develops.
What follows is what I regard as the most important qualities required of any whistleblower who dares to challenge civil servants.
Quality #1: Tell the truth
One little falsehood can discredit even the most virtuous whistleblower.
I know this sounds obvious, but telling the truth is paramount. It also includes avoiding the temptation to embellish or to exaggerate. All it takes is just one little slip up in terms of accuracy, and the corrupt civil servant will hone in on it as though nothing else matters (including the civil servant’s own falsehoods).
The reason I have been able to publish the material I have is because it is all true, and no-one can claim otherwise.
Quality #2: Evidence is everything
The first question a whistleblower will be asked is, “Where’s the evidence?”
Telling the truth isn’t everything. One can tell the truth, but in the absence of firm evidence the listener’s default position will be one of reasonable doubt.
The skill here is knowing what is, and is not, good evidence. A simple example is the admission by conduct. When Mr. U telephoned my lawyer and told him that he would crush me and ruin my business, I immediately instructed my lawyer to make contemporaneous notes and send them to me so that I could personally put them back to Mr. U and ask him for his response.
My lawyer, already rattled by Mr. U’s aggressive and angry telephone call, was reluctant and claimed to have “forgotten” some of the telephone call. However, he did recall enough to tell me in an email about the threats to crush me and ruin my business. This was enough. I put this in an email, and sent it to Mr. U, requesting his response. Mr. U responded but discussed other matters, completely ignoring what I had put to him. By failing to respond to a serious allegation in circumstances where a reasonable person would immediately seek to deny or defend, Mr. U made an admission by his conduct. (Some years later, Mr. U would claim to have made a “file note” of his conversation with my lawyer, but he refused to divulge the content of the supposed file note unless he could be indemnified against any legal action; a further form of admission by conduct.)
Quality #3: Become a strategist
Learn to strategize your moves and to adapt to changing circumstances.
A single blast of the whistle may not be enough to turn heads. A second or third blast may help, but eventually the continuing sound of the whistle may simply become white noise. If this happens the civil servant may be able to declare the whistleblower as a mere nuisance or vexatious.
The whistleblower must observe, interpret, and respond to reactions after each whistle blast. If a groundswell of concern develops, there may be nothing further for the whistleblower to do. However, in many cases the whistleblower will see little immediate reaction other than a retaliatory strike from the subject of the whistle blast.
If initial blasts of the whistle fail to yield results, the methods and means set out in this series of articles should be considered. Do not give up!
Quality #4: The tactical retreat has its place
Sometimes it is necessary to allow the other party to win a battle so that you can win the war.
I have publicly named and shamed Mr. U and his government department on more than one occasion. The first time this happened, Mr. U threatened me with defamation action unless I withdrew my allegations. I did not have the wherewithal to contest Mr. U (who had the government’s deep pockets to draw upon), and so I withdrew.
I published an article about Mr. U having blackmailed me, and Mr. U again threatened defamation action. I made a token gesture of withdrawal, but noted that Mr. U did not appear to have the stomach for an investigation into his conduct. So I waited (see “Patience” below).
Instead of taking his own legal action against me, Mr. U lodged a formal complaint with the Victoria Legal Services Commissioner (VLSC), with whom he enjoyed a close relationship. I received a notice advising me that I was under disciplinary investigation for having made a serious allegation of criminal dishonesty against a fellow legal practitioner, and inviting my response.
I responded with a complaint against Mr. U, that he had indeed blackmailed me.
The VLSC then did something extraordinary. An attempt was made to “mediate” the matter. I refused on the basis that criminal matters are not something to be mediated away. The VLSC then dismissed my complaint against Mr. U without any investigation. However, the VLSC pursued Mr. U’s complaint against me. Eventually the VLSC told me that a finding would be made against me, and that I should make a final submission. My final submission was in the form of a full brief of evidence in support of a charge of criminal blackmail against Mr. U. The VLSC then dismissed Mr. U’s complaint, but refused to re-open my complaint against Mr. U.
There was nothing further I could do but wait. However, this experience did indicate that the VLSC had found, albeit in subtle terms, that Mr. U was truly guilty of criminal blackmail.
Quality #5: Remain patient
For any whistleblower patience is truly a virtue.
I have mentioned strategy (see above). An important component of strategy is patience. Sure, blowing the whistle is something that is done urgently, sometimes impulsively, and in the hope that something immediate will be done to rectify the situation identified by the whistleblower. But in the case of civil servants there are layers of protection that the civil servant will invoke to stay safe (legislation, inter-departmental influence, a presumption of independence and honesty, and control over the environment in which they operate to name a few).
Adopting the strategies I have put forward is easy enough to do, but realizing a meaningful outcome may take time – a lot of time.
Blowing the whistle on civil servants is particularly risky if the whistleblower lacks the time and the patience to see things through to the end.
Quality #6: Return fire whenever possible
In the military, they teach that coming under fire is dangerous, but failing to return fire is suicide.
At the very least, it is necessary to question what the other party has put. For example, I have described above where Mr. U was asked to respond to the allegation that he had told my lawyer that he would crush me and ruin my business. By failing to acknowledge, explain, or deny what was put to him, Mr. U effectively admitted the allegation by his conduct.
A further example is where the VLSC asked me for an explanation for my conduct in alleging that Mr. U had blackmailed me. When I explained that Mr. U had indeed blackmailed me, I was told that I lacked “insight” into my wrongdoing. Had I not responded, the VLSC would have relied on my reticence as an admission. Instead, I responded by complaining that the VLSC had improperly used its coercive power to demand an explanation, and then falsely characterized the extracted explanation as a lack of insight. The VLSC did not respond, and in this failure constructively accepted my assertion.
At every opportunity, when I discerned an impropriety on the part of the VLSC I would put it to them, ensuring that my allegation and their response was recorded in writing or by audio recording. This approach had the added benefit of confirming to the VLSC that their conduct was being monitored, recorded and, archived for future reference.
Quality #7: Single out individuals
Homing in on an individual alerts them to the fact that they are vulnerable.
Civil servants tend to rely on the collective responsibility of their department or organization for their conduct or decisions. By identifying the individual in a specific instance, the whistleblower can alert the civil servant that he or she is personally responsible.
When the VLSC approached me with yet another bogus “complaint,” they put a new investigator in charge, so as to give the appearance of an independent investigation. I responded with an immediate attack on the supervising officer (whom the new investigator had readily identified in response to a query from me).
I then published a post on social media identifying the investigator, and describing the investigation as bogus. As a direct result of the social media posting, I received a personal phone call from the domestic partner of the investigator, who told me that the investigator had no experience in conducting investigations, did not fully understand the situation or the matter being investigated and was most distressed about having become involved.
I was asked to remove the social media post because of the distress it was causing for the investigator. I removed the post, and never heard from the investigator again. The bogus complaint was disposed of. (This example is also applicable to the next heading.)
Quality #8: Send subliminal messages
Let the civil servant know their options and the consequences of a wrong choice.
In my experience, civil servants identified as corrupt were simply sidelined and replaced. I made sure that the incoming replacement was made aware of the wrong-doing of the previous incumbent, sometimes inviting the newcomer to become a whistleblower. This put both the sidelined party (who would invariably bring the newcomer up to speed with the status of the matter they were taking over) and the newcomer in the position of having to choose between perpetuating the wrong-doing or siding with me in calling it out.
In the abovementioned example (heading #7) of the new investigator and the bogus investigation, a subliminal message was sent to the investigator’s colleagues, supervisors, and others in the VLSC office. The message was that those who become involved in the VLSC’s anti-whistleblower campaign are vulnerable.
Quality #9: Access formal avenues of redress
It is helpful if a history of complaints or whistle blasts can be maintained.
There are numerous advantages in using existing procedures of redress, even if they are not trusted.
If the authority does nothing, they have still committed themselves. This failure can be placed on record and used later to prove that conventional methods of the complaint had been explored and exhausted.
I had complained to the VLSC about a Senior Investigator who had displayed extreme bias and incompetence in his investigations, and who then went on to commit the criminal offences of Perjury and Perverting the Course of Justice. The Senior Investigator was first sidelined, and then left the office of the VLSC to take up a comfortable position as a lawyer with Victoria Police.
I wrote to Victoria Police and suggested that they should initiate an investigation into their new employee’s criminal conduct. Victoria Police wrote to me, dismissing my complaint after no more than a “desktop investigation,” declaring that no investigation was warranted due to the allegations pre-dating the employee’s joining Victoria Police. I responded (see heading #6 above) by telling the author of the letter that as a former Senior Detective and Advisor in the Internal Investigations Department of Victoria Police, and as a Legal Practitioner I had some expertise in identifying criminal conduct. I was then invited to produce material to support my complaint so that an investigation could be undertaken.
Unfortunately, the trust deficit created by the initial response of Victoria Police deterred me from further use of this avenue of complaint. However, it does form part of the record of my attempts to see justice done.
Quality #10: Use social media to ensure that the whistle blast is heard by all
Social media has the whistleblower’s back.
I saved this heading for the end because it is so important – social media is everything!
When I realized the level and extent of the corruption I was dealing with, and the power of those I was up against, I did two things.
First, I created my own webpage so that I could record my experiences and upload copies of documents and audio recordings. I have been meticulous in ensuring that all statements and imputations appearing on my webpage are true and backed up by documentary evidence.
Second, I used LinkedIn to connect with as many legal professionals as possible, both in my own State of Victoria, but also throughout Australia and also overseas. I amassed over 6,000 contacts, the vast majority of whom are Victorian legal practitioners.
The VLSC has taken some extraordinary steps in an attempt to counter the material appearing on my webpage and other social media. These include:
- Writing to me to warn that the material I have posted is defamatory;
- Making false threats of legal action for defamation;
- Having a high-profile law firm write to the ISPs through which my webpage is hosted, claiming that their conduct in publishing audio material on my website exposes them to criminal prosecution.
Nothing has come of these attempts by the VLSC, and the failure to make good on these threats represents and admission (of the truth of the webpage content) by conduct (see heading #2 above).
NEXT TIME: In the third part article, I will set out the end-game and how the development of my own responses to the powers and strategies of corrupt civil servants has ultimately brought about their downfall.