Who judges the judges when one of their own is involved in a legal stoush? That's the predicament facing injured worker Alex Mericka.
You may remember in 2011 we told how Alex, representing himself, won a 15 year battle over Workcover's unconscionable conduct in paying out his claim. Leaving he and wife Michelle with little to live on.
"The monetary amount was grossly inadequate that I didn’t get any financial advice, I didn't get any legal advice… at no time during the signing of one page of any of those pages of documents was my lawyer present and that's very disturbing," says Alex.
The fact that his then lawyer Stephen Lieschke had since become a judge on the Workcover Tribunal and was to be called as a Workcover witness raised real prospect of apprehended bias, so in 2006 Tribunal Judge Farrell ruled…
".... This is something that should not be dealt with by one of the judges or members who are currently serving".
The tribunal brought in an independent... Former Supreme Court Justice Trevor Olsson.
"I found Justice Olsson very firm, in fact at the time I found him very intimidating because he was very exact in what he wanted, he was very absolute with both sides, with me and the compensating authority (but was he fair?) He was very fair," says Alex.
After 5 years of David and Goliath courtroom conflict Judge Olsson found in Alex's favour… Workcover had erred and Lieschke's legal advice wasn't competent according to section 42 of the act.
“In other words what Judge Lieschke might understand to be advice might not be what a worker might understand if they are very unwell and unstable at the time of getting that advice," explains Alex.
But Olsson went further, also criticising Judge Lieschke over his conduct during the proceedings themselves.
“Judge Olsson pointed out that he was very disturbed about the fact that Judge Lieschke rang the Legal Practitioners Conduct Board using his position as a judge to acquire confidential information and complaint documents that I had put in about him in 1997," says Alex.
Lieschke passed these document on to Workcover to assist them in their battle against Alex but Judge Olsson went even further...
"The criticisms weren't just of Mr Lieschke as a lawyer but Justice Olsson made criticisms of the tribunal itself and its members and their processes in how they dealt with Workcover people," says Alex.
(And I imagine that wouldn't have sat comfortably with the tribunal?)
"Oh absolutely not," says Alex.
Predictably enough Workcover appealed, this time it went to the full bench of the tribunal and they found it was Judge Olsson who was wrong. The claim or redemption was kosher.
"Basically if there are documents which show that section 42 may have been complied it's irrelevant as to how those documents came into being, it's irrelevant how the person was at the time physically or mentally, all that matters is the end product," says Alex.
But the allegations about Workcover and Lieschke's conduct were left hanging… they are the issues Justice Olsson left unresolved.
(And now they are saying they should be resolved?)
“Correct, because to consider and appeal over the whole of my matters they must take into consideration what my whole trial was about,” says Alex.
And this is where things get really interesting... The tribunal effectively sacked Judge Olsson from the case. In a unanimous decision Judge McCooig said…
"an impression of pre-judgment is firmly imprinted on the learned trial judge's reasons… he might not be able to bring to the remaining issues an impartial and unprejudiced mind.."
("so they are saying he's biased?")
“That's right, they now want one of their own members to sit in judgement on the remaining issues and when you consider the original idea was to avoid any potential conflict because of Lieschke’s role you have to wonder how appropriate that is,” questions Alex.
(“So it's now going back to one of their own members and effectively what's happened will be expunged?”)
"Well that’s basically it," says Alex.
(“This is not your only concern is it?”)
"Well no, here are a whole range of things that raise concerns throughout the whole of the hearing and these things were just problems, they needed thorough investigation," says Alex.
Since November 2011 Alex has attempted to lodge a series of objections to the members hearing the case and to Judge Lieschke. All were either lost, removed or disregarded.
“When I objected to three members who are friends of Judge Lieschke, who is a witness for the compensation authority, from hearing this, those objections were just set aside without being addressed… on one occasion Judge Lieschke contact the compensation authority to pay me zip,” says Alex.
On advice Alex registered Olsson's judgment with the District Court so any appeal would be heard there rather than by the tribunal.
“The registrar, a Mr Haig pointed out that it was a good thing to do that because of the decision that was ultimately made at the beginning of these proceedings that no tribunal member should be hearing this anyway,” says Alex.
(“So it was consistent with what Judge Farrell has said back in 2006?”)
(“Okay so you did that, what happened?”)
“I'm unsure, but somehow the registration disappeared off the file… the registration never came up for mention they just carried on as if it had never been taken to the District Court at all,” says Alex.
(“So they lost that too?”)
“That's correct and the serious thing is, how can the tribunal from the Workers Compensation Tribunal hear a matter that belongs to the District Court of South Australia?" asks Alex.
Even when Alex put it under their noses...
(“So what happens now?”)
“We are appealing the whole matter to the Supreme Court of South Australia hoping we can find a legal court there that will deal with this in a lawful way,” says Alex.