According to a report byThe ABC, a private prosecution brought by Daylesford businessman David Penman against Hepburn Shire Council CEO Bradley Thomas and Councillor Don Henderson has encountered procedural difficulties as it moves through the Ballarat Magistrates’ Court.
Penman, who operates the Clifftop at Hepburn accommodation business, filed charges earlier this year alleging misconduct by Thomas and Henderson. The charges relate primarily to the alleged use of council funds for legal services that Penman claims improperly benefited council officials in matters involving defamation-related legal work and a personal safety intervention order. Thomas faces two counts of misconduct in public office, while Henderson faces three charges under local government legislation.
Cr Henderson was required to step down from his council position while the proceedings continue because of a 2024 amendment to the Local Government Act which requires that a councillor charged with an offence carrying a maximum penalty of two years or more is immediately and automatically stood down. CEO Bradley Thomas, however, has remained in his role as chief executive officer pending the outcome of the legal proceedings.
At a hearing on March 26, Penman was ordered to provide a hand-up brief of evidence to the court by April 16. According to a statement by Mr Penman, he has provided a hand-up brief and a supplementary hand-up brief but is yet to provided a full brief because he is continuing to seek documents through contested subpoenas. The Wombat Post understands that Mr Penman has issued subpoenas to the Municipal Association of Victoria and to most current Shire Councillors.
At a recent court hearing (29th May), Reserve Magistrate Andrew Capell expressed concern about the readiness of the matter, noting that multiple issues remained unresolved, including subpoena disputes and an application for a compulsory examination.
Lawyers acting for Henderson and Thomas criticised the progress of the prosecution. Henderson’s lawyer, David Tamanika, told the court that his client was incurring substantial legal costs and alleged that Penman had not provided the necessary evidence. Penman, who is representing himself, denied refusing to make required disclosures.
The ABC also reports that a previous magistrate requested that Victoria’s Director of Public Prosecutions (DPP) take over the case. However, the DPP declined to do so. Counsel for Mr Thomas indicated that her client would welcome further efforts to have the DPP assume responsibility for the prosecution and questioned the clarity of the charges that had been filed.
The court was also attended by legal representatives from several parties, including the Municipal Association of Victoria, due to requests that they supply documents connected with the case.
The matter is scheduled to return to court in August for a two-day hearing. No findings have been made against Mr Thomas or Cr Henderson, and the allegations remain untested. As previously stated by Hepburn Shire Council, the charges were initiated through a private prosecution and were not the result of an investigation or assessment by Victoria Police or any public prosecutorial authority.
In the meantime, Hepburn Shire Council is without the services of Cr Henderson as it navigates another seriously constrained annual budget, highlighting the practical impact of the Act’s automatic stand-down provisions. And the remaining councillors must bear an even greater burden of the day-to-day responsibilities of public representatives.
Editorial Note: An earlier version of this story suggested that Mr Penman had not provided hand-up briefs of evidence as required by the court. Mr Penman has disputed this stating that partial evidence has been provided while he is awaiting the outcome of contested subpoenas.
