The extraordinary legal saga that left Hepburn Shire Council unable to function has come to an abrupt end, with the Director of Public Prosecutions (DPP) taking over and dismissing all charges laid against five councillors and the council’s chief executive.
The criminal charges, brought by Hepburn businessman David Penman through a rare private prosecution, alleged misuse of public office by Mayor Tony Clark, councillors Don Henderson, Shirley Cornish, Pat Hockey and Lesley Hewitt, along with Chief Executive Bradley Thomas.
Under Victoria’s Local Government Act, the charges automatically forced the five councillors to stand down, leaving the council without enough elected members to form a quorum. The situation prompted the Victorian Government to announce it would appoint an administrator to oversee the council.
Following a review of the evidence, the DPP intervened in the Ballarat Magistrates’ Court on Wednesday morning, and successfully applied to have all charges be stood down, determining there were no reasonable prospects for a conviction.
The decision cleared the way for the five councillors to immediately resume their roles. The five councillors returned to their roles at Hepburn Shire today (Friday, August 7) and met with interim CEO Janet Dore.
A spokesperson for the Victorian Government confirmed that there is no longer a need for the appointment of an administrator saying “the five councillors in question are free to return to their positions serving the ratepayers and residents of Hepburn Shire. An Administrator had not yet been appointed to Hepburn Shire Council.”
The spokesperson continued, “The decision in the Ballarat Magistrates Court is a win for democracy and the ratepayers, residents and businesses of the Hepburn community. Labor’s legislation is already before Parliament to ensure this cannot happen again to any council.”
In a statement released earlier today, Mayor Tony Clark said, “I am disappointed that the Local Government Act 2020 did not afford Councillors protection from such private prosecutions. The standing down of Councillors in this way was an attack on democracy and governance in the local government sector. We look forward to amendments that protect against this type of action in the future.”
Mr Penman was reported by the ABC to have said he accepted the DPP’s decision despite believing his case was strong.
Who Pays? The Next Legal Battle
Although the criminal proceedings have ended, the financial consequences remain unresolved.
Hepburn Shire Council, the five councillors, former Chief Executive Bradley Thomas, witnesses and other parties are all seeking orders that Mr Penman pay their legal costs. During the hearing, the court was told that the proceedings had generated significant legal expenses, with multiple legal teams appearing before the court.
Magistrate Patrick Southey indicated that determining costs would require a separate hearing, with each party expected to detail and justify the costs they are seeking. The matter was adjourned to a later date.
The pursuit of costs is likely to be substantial. Given the number of parties involved and the length of the proceedings, the combined legal bill could run into hundreds of thousands of dollars, although the final amount, if any, awarded against Mr Penman will ultimately be determined by the court.
The costs proceedings will also test an important principle surrounding private prosecutions. While Victorian law allows private citizens to initiate criminal proceedings, the courts also have discretion to order unsuccessful prosecutors to compensate defendants for the considerable legal expenses incurred where proceedings are dismissed. The outcome may influence how readily similar actions are brought in the future.
Law Reform Still Needed
The case has intensified calls for urgent reform of Victoria’s Local Government Act. The state government has confirmed legislation is being prepared to close the loophole that allowed privately initiated charges to automatically suspend elected councillors before the charges had been tested in court.
Rural Councils Victoria welcomed the DPP’s intervention, describing the episode as a significant disruption to local democracy and renewing its call for Parliament to amend the legislation so similar situations cannot occur again.
For Hepburn Shire, the dismissal of the charges restores an elected Council after weeks of uncertainty. However, the final chapter has yet to be written, with the potentially costly legal fallout still to be determined by the courts.
Editor’s note: This article was updated on Friday afternoon (August 7) to include recent statements from the Mayor of Hepburn Shire Council and from a Victorian Government spokesperson.
