The private prosecution brought by local resident David Penman against Hepburn Shire councillor Don Henderson and Chief Executive Officer Bradley Thomas has taken a further step, with a filing hearing held at the Ballarat Magistrates’ Court on March 26.
Mr Penman, who is acting on his own behalf, appeared at the hearing, which dealt with preliminary matters ahead of any substantive consideration of the charges. No findings were made.
The proceedings name multiple defendants, including Cr Henderson and Mr Thomas, as well as Hepburn Shire Council, the Municipal Association of Victoria, and Russell Kennedy lawyers.
Earlier this month, Mr Penman filed criminal charges alleging the misspending of ratepayer funds. Mr Thomas faces two counts of misconduct in public office, while Cr Henderson faces a charge of misuse of position under the Local Government Act.
At Thursday’s hearing, lawyers representing for Mr Thomas and Cr Henderson sought to have the charges struck out. Counsel for Cr Henderson argued that the allegation could not be substantiated on the available material, while counsel for Mr Thomas submitted there was no evidentiary basis to support the charges.
In the course of those submissions, the court heard references to social media posts made by Mr Penman, which the defence described as “bizarre,” including comparisons to fictional villains. Mr Penman rejected the relevance of those references, telling the court he was in a position to produce a substantial brief of evidence.
Magistrate Tara Hartnett reminded the court of the obligation of disclosure and directed Mr Penman to provide a hand-up brief of evidence to all parties by April 16. The matter has been listed for a committal case conference on May 29.
Magistrate Hartnett reserved any decisions on costs in the case.
As previously reported, Cr Henderson has been automatically stood down from Council under the provisions of the Local Government Act while the matter is before the courts but Mr Thomas continues in his role as Chief Executive Officer.
A private prosecution is a relatively uncommon legal process in which an individual initiates criminal proceedings directly through the courts. Neither the Victoria Police nor the Director of Public Prosecutions have had any involvement to date. The case remains at an early procedural stage and the court has not tested the merits of the allegations.
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