The lunacy continued at VCAT last week with a Council entourage of 7 individuals showing up to defend the Penhalluriack application for FOI release of documents pertaining to the mulch facility. Apart from the council barrister presenting council’s case, plus his instructing barrister or solicitor, present were also Mr. Hayes (barrister) from Maddocks, Mr Peter Jones, Mr Mark Saunders,(as witnesses); Ms Rachel Kenyon and another council officer. In all, 7 very highly paid people, sitting around all day. How much this has cost ratepayers is anyone’s guess. Penhalluriack had his barrister presenting his case and the instructing barrister.
Council’s arguments focused on two facets of the Information Privacy Act – the 6 requested documents were ‘exempt’ since they constituted ‘working documents’, were ‘opinion’, ‘advice’ and that the public interest would not be served via their release. They were also labelled ‘personal affairs’ and if released would create public ‘speculation’. The following words arguing against the FOI application featured frequently in Council’s arguments – ‘misinformation’, ‘confusion’, ‘mischief’ etc. In other words, if the documents were to be released then the poor old public would be confused and ‘harmed’! Council’s barrister also highlighted that fact that it was only Penhalluriack who wasn’t ‘satisfied’ with the consultant’s ‘advice’. Case law supporting these contentions were cited.
When discussion focused on the actual documents the room was cleared – since these were ‘confidential’ documents. However, the gallery did get the opportunity to witness the early part of Peter Jones in the witness stand. Asked by council’s barrister if he would like to change anything in his written statement, Jones asked for one sentence in a paragraph to be deleted. The barrister then had to remind him about several other paragraphs that contained identical sentences! Mr Jones also appeared very confused as to the YEAR of audit committee meetings, first stating 2010 and then (with prompting) from the barrister, changing this to 2011. Coaching of the witness was clearly evident, but it did not prevent Mr Jones from blushing bright red at his errors and apologising! When cross examination was about to begin, the gallery was cleared and during this time (over one hour) Mr Saunders was also cross examined.
Upon returning to the ‘chamber’ Penhalluriack was called to testify. Neither his, nor Council’s lawyer asked any questions!
Throughout this morning session it was made clear that the scientific consultant’s report had contained many more recommendations that did not make it into the public version of the report. The requested documents, we presume, pertain to these sections.
Following the lunch break, Penhalluriack’s lawyer presented the arguments for document release stating that this was a special case and earlier precedents of ‘working documents’ did not apply since (a) health and therefore the public interest was at stake and (b) since council had asked for ‘independent’ advice one should expect that consultants are in fact ‘independent’ and not regarded as council officers.
The decision will probably be handed down in a few weeks. A most expensive way to haggle over six pieces of paper!
IT SHOULD ALSO BE NOTED THAT THE MUNICIPAL INSPECTOR HAS DETERMINED THAT CR PENHALLURIACK HAS NO ‘CONFLICT OF INTEREST’ REGARDING THE CLOSURE OF THE GLEN HUNTLY MULCH FACILITY. The 64 dollar question is: Will the Leader publish this latest news?!!!!!
Glen Eira Debates 
March 18, 2012 at 9:39 PM
Congratulations go to Penhalluriack. Looks very much like he’s won the first battle against the dirty tricks campaign that’s been waged against him. A good question at the end about the leader but the age should also be added in there. Whoever complained should be really proud of themselves. They’ve cost tax payers stacks and fallen flat on their faces.
March 18, 2012 at 9:54 PM
The Leader would be very reluctant to publish any story that puts the Council in a bad light. They will publish articles that make Councillors appear to have acted poorly but never will they allow the staff to appear in a bad light. The Glen Eira Council is one of the Caulfield Leader’s top ten customers.
March 18, 2012 at 10:26 PM
Dead right. Newton and Burke need to make councillors look bad to cover up lousy decision making in putting the dam thing next to a playground to begin with. You find yourself a scapegoat like Penhalluriack even though 6 other councillors voted with him on this and then you probably contact the Age and the Leader and get them to run article after article even though the whole thing is now a year old and not news anymore. If the Leader was a real paper and concerned about local issues then they’d run stories about the community plan consultations that have gone on and start asking decent questions about what’s happening with gesac and how much money is being lost or how much money all of these bloody lawyers are costing.
March 18, 2012 at 10:59 PM
Spot-on, the Leader is not going to bite the hand that feeds it
Any pretence of being local and of journalistic interest or quality has vanished with mass syndication
Last weeks Head Story “WORKING TOGETHER” ran from Hooper Crossing in the West, to Lilydale- Yarra Valley in the North to Mornington Peninsula in the South, and almost every suburb in between. I found only two editions that had special festival cover pages, but the “WORKING TOGETHER” followed soon after
So what are we are talking about here, millions of people being treated as sheep, possibly.
This isn’t a local newspaper with local interest stories any-more, it is part of a conservative (Business Plan) to keep you ignorant and in the dark, whilst getting its hands on council money YOUR MONEY through council advertising
Of coarse The Leader plays ball, “you scratch my back and I will scratch your”
The Leader isn’t going to rock the gravy boat one little bit
I would suggest that you contact the Leader Group and tell them you do not want their paper to be delivered to your properly, TELL THEM WHY and if they do not comply, bin it without opening it, and lodge a complaint
Do not except councils view that the Leader Newspaper is a legitimated way of communicating with you as a resident
If you want true change abandon the construct that’s dangled in front of your eyes. its not serving your interests, so why play ball. Build your own communications network, and boycott business that use the Leader for advertising
If you truly want change, use the power you have
Hit them were it hurts
March 18, 2012 at 10:59 PM
I think it would be particularly courageous of the VCAT member to overturn the long held principle of “working document” as an exempt document. A friend of mine a few years ago tried to get some official files from a government agency and failed on this count. The intention of the legislation is sound but it can be abused and manipulated as any set of regulations permit. If everything is deemed to be a working document then the public has no means of evaluating how ethical and proper the processes involved were. In a place like Glen Eira I would be quite willing to believe that version 1 of an “independent” report is entirely different to what emerges by Version 2 or 3. I would also believe that certain pressures could be applied to ensure that any final version vindicates the actions of certain people or presents a scenario that is favourable to such people. Unless all versions, and their changes, are documented and available, then abuses will continue and the “guilty” remain undetected and undisclosed.
March 18, 2012 at 11:16 PM
FYI – Solicitor and Barrister Prices
The prices that a solicitor will charge for various prices vary between regions of Australia such as city, suburban and country based solicitors or between the big firms, small firms and mid-tier firms. This may not reflect the quality of the service being provided by the firm, it may simply be a function of where they sit in the market. The charge out rates of particular solicitors and barristers will also vary on the basis of the seniority of the person doing the legal work. Please not that these figures are only general estimates and not indicative of the specific amounts that a lawyer in a particular instance might charge, but, as a basic guide, in Sydney for a small firm you might expect the following charge out rates:
Senior Solicitor –$300.00 per hour
Junior Solicitor – $200.00 per hour
Law Clerk – $120.00 per hour
In a large firm, you would expect much higher charge out rates such as:
Partner: $800.00 per hour
Special Counsel: $600.00 per hour
Senior Associate: $500.00 per hour
Junior Lawyer: $300.00 per hour
Law Clerk: $180.00 per hour
The medium sized firms would most likely have charge out rates somewhere between these rates. Barristers are on a different system of rankings within the profession and often charge in a different manner to solicitors. Some will charge on an hourly basis and others an appearance fee, or a specific fee for a given type of hearing. Some barristers also charge an amount for each day of work which is conducted on a case. Barristers rarely do work on a contingency basis and mainly charge an hourly rate for their work which may be advisory in nature or related to court appearance. As a very basic guide, barristers may charge the following amounts:
QC/SC: 1,000.00 per hour
Senior Barrister: 600.00 per hour
Junior Barrister: 400.00 per hour
For daily court fees, this would relate to the following amounts:
QC/SC: 8,000.00 per day
Senior Barrister: 5,000 per day
Junior Barrister: 3,000 per day
For some types of matters like legal aid, motor vehicle accident insurance and workers compensation there are rates which proscribed by statute or in the case of legal aid by the agency procuring the work such as legal aid New South Wales. Also, in relation to appearances by counsel, there are often systems of suggested fees which are given by the courts as a guide to what solicitors should charge in relation to their work. An example of this is the system of fees given by the Federal Court:
Fee on Brief
Junior Counsel $1200-4,800
Senior Counsel $1,950-7,200
Appearance at hearing (daily rate including conference)
Junior Counsel $850-3,950
Senior Counsel $1,950-6,000
Interlocutory Applications
Motion/Interlocutory hearing
– short (up to 2 hours)
Junior Counsel $350-2,000
Senior Counsel $650-3,900
– long (2 hrs plus)
Junior Counsel $400-3,000
Senior Counsel $800-6,000
Hourly rate for: Directions hearing, Preparation time, Conferences (not occurring on day of hearing), Settling applications, statements of claim, affidavits, defence, other documents, Opinions, advice on evidence, Written submissions (where not allowed above), Attending to receive judgment (where appropriate), Not otherwise provided for:
Junior Counsel $250-500
Senior Counsel $400-700
SOURCE: http://www.legallawyers.com.au/legal-topics/law-firm-sydney/solicitor-prices/
March 18, 2012 at 11:23 PM
Tang works for Maddocks. Any conflict of interest here? Did he vote to send Penhalluriack to the code of conduct panel and is Maddocks prosecuting this? What’s good for the goose should be good for the gander don’t yas reckon?
March 19, 2012 at 8:46 AM
Abandon SS Glen Eira it’s a sinking ship, even your life-boat will be more organised and more honest.
Any news of alternative candidates coming forward after GERA’s meeting last week.
March 19, 2012 at 8:56 AM
The requested document is *not* a working document and not an exempt document. Council can argue otherwise, but they should reread FOIA(30)(1) first. The document was prepared by allegedly an independent consultant. It was not prepared by an officer, Minister, or council. Nor has it been alleged that it discloses consultation or deliberation that has taken place between officers, Ministers (council) or an officer and a Minister (council). The report was written by an external consultant.
There is still the second requirement to be an “exempt” document, which is that release would be contrary to the public interest. On this criteria alone the document should be released. There is substantial public interest. It is at the heart of highly defamatory articles published in newspapers. It has triggered an inernal witch-hunt. It may well reveal undue influence from council officers to have key recommendations to have the report changed. The very little information that Andrew Newton was prepared to release has been used to make a significant financial decision.
On top of all this, the report went to the Audit committee plus a cast of others who are non-members. The Audit comittee is only an advisory committee, whose job it is to provide advice to Council. They provided no advice to Council concerning the mulch heap, a clear abrogation of their responsibilities. This mess starts with the failure of the Audit committee, whose members are about to be reconfirmed.
The information has been carelessly and ineptly categorized as confidential. The Audit committee routinely closes its meetings, in their entirety, to the public “in discussion of broad issues facing Council and the risk elements thereof”. Notice that it makes no attempt to identify the matters that Council or a special committee *may* use to close a meeting [and document in their Minutes as the reasons for doing so]. Its *only* an advisory committee, with the really odd addition that they have to abide by LGA S76D and S79, covering misuse of information and disclosure of conflict of interest [to that extent, they are a special committee].
Curiously while councillors and special committee members have to respect confidentiality, that doesn’t apply to the council officers who are invited to the secret sessions. Information presented to the Audit committee at a closed meeting is automatically confidential unless the committee resolves otherwise. And they never resolve otherwise–even for matters involving public health. It simply doesn’t occur to them. Arguing at VCAT that information is confidential is to lose sight of the spirit of the law concerning misuse of information–why that section is in the legislation in the first place. Its about gaining advantage or causing detriment. Instead the Audit committee should be *very* closely scrutinized to assess the extent to which they have abused their power.
Two things we can learn from the whole debacle is that nobody should go near the Audit committee on matters of public interest, and that the members need to be chosen with much greater care than has been taken in the past.
March 19, 2012 at 9:39 AM
In fairness we need to state that Council’s lawyer did make the point that ‘consultants’ are considered ‘council officers’ under the legislation. The sticking point is whether an ‘independent’ consultant should be placed in this category.
We again point out that the Audit Committee’s Annual Report (and self appraisal – which would be ‘confidential’) has not been tabled at an ordinary council meeting. This does nothing but again fuel suspicion as to what is going on and why this is being kept hidden. Of course, we simply assume that if and when it does materialise, it will be overflowing with praise, cliches, and gobbledygook – revealing absolutely nothing. But, it MUST be tabled. Councillors, where are you? Aren’t you concerned about accountability and transparency?
March 19, 2012 at 10:35 AM
Did Council’s lawyer identify the legislation that specifies ‘consultants’ are considered ‘council officers’? There is only one reference to ‘consultant’ in FOIA, and that’s in S11(1)(f), which doesn’t apply to councils. LGA doesn’t consider consultants to be council officers. Did the CEO disseminate the code of conduct for council staff to the consultant–not that I could see how it could be binding.
March 19, 2012 at 10:02 AM
You people analyse down to a mirco level, which maybe a interesting academic pursuit, but it goes know where in the real world.
How about some positive thoughts on how to save this sinking ship
March 19, 2012 at 11:19 AM
Money is leaking like a bloody sieve on useless vendettas and witch hunts. It would be much much cheaper to just sack Newton and pay him out than keep going with this rubbish. Once he goes you can bet your bottom dollar that the other mob will leave and that’ll save us heaps once all these fat cats get the chop.
March 19, 2012 at 11:55 AM
Newt isn’t going anywhere, there is no place for him to go, that why here is here in GE in the fist place, its the end of the line.
March 19, 2012 at 4:59 PM
So the poor old ratepayers are not clever enough to differentiate fact from fiction. According to our Council we’re a pretty dumb lot who can’t be trusted with too much information. What a disgrace!
So much for the Pilling “openness, transparency and accountability” mantra before the last municipal election.
As for Glen Eira Leader, it’s a shocker. Psuedo journalism. I’m very close to drawing attention to their superiors how reluctant they are to present stories critical of Council. Not only present, but censor. Might even draw it to the attention of the Press Council. Paul Burke must chuckle at the contol he has over what’s published in that excuse for a newspaper.
March 19, 2012 at 5:49 PM
Pilling’s mantra continues to this day. His blog had stuff about secrecy and confidentiality only a few months back. Words are always cheap. If he and others were fair dinkum then they should get up tomorrow evening and say that the in camera item on the membership of the audit committee be removed from in camera and placed on the agenda to be discussed in open. It would be hilarious to hear Lipshutz and Hyams arguments as to why G & McL deserve to be permanent fixtures.
March 20, 2012 at 12:03 AM
What on earth do you all think replacing the two auditor will do.
The next morning the sun is shining the birds are singing and Glen Eira has become the beacon of the hill of community democracy, Somehow I don’t think so
Hyams and Lipshutz don’t have to explain anything to anyone that’s the rules, if they tried and got one word wrong, you would crucify them on that technicality
You guys spend your life hoping for a miraculous collapse of the system, and now its all Cr Pilling fault because he doesn’t do what you want him to do
Glen Eira needs a change of culture from top to bottom I agree on that
Pilling is on record more than several times, saying that there is far to much business conducted in-camera, and he would like to see that changed.
He can keep saying it till he is blue in the face, but he needs 4 other councillors to agree and more importantly support him, otherwise he is just flogging a dead horse, and to his credit he’s far to cleaver to do that tiresome exercise of futility, no matter how theatrical it may look or sound
I like Cr Pilling idea of getting the council meetings out of the 1920’s and into the 2000’s with a new style chamber. Getting the bureaucrats onto the same level as everyone else, including the folk in public gallery is a great idea. Changes like this and a host of others will change or modernize Glen Eira for the better, Cr Pilling is pointing in the right direction, you guys are just not looking
The message here is Cr. Pilling needs four other councillors to support him right now. So whose’s up for running in October election, and once elected will push a progressive agenda of openness and honesty and democracy, its not such a tall order. Image Glen Eira with nine good community minded councillors. You me we all could stop complaining and go to bed and read
PS. Mumbles gave up chuckling years ago, he laughs out loud these days, I live near the Town Hall it keeps me awakes some nights
March 20, 2012 at 11:30 AM
Anon
Are you going to stand for council? Sounds like you think somebody else should do it but you are wanting that to happen but not putting your hand up
March 20, 2012 at 11:46 AM
yes, I am there
March 20, 2012 at 11:37 AM
How much has Frank cost the citizens of Glen Eira by introducing the requirement to use Lawyers? Our legal costs will exceed the cost of the mulch facility.Frank needs to quit Council so that they can Govern us and not worry about a certain ego.As for the Inspectorate they have been replaced and not without reason.
March 20, 2012 at 11:48 AM
You win the prize for the dumbest comment that’s ever been put up here. Newton and the gang initiated all the lawyers, not Penhalluriack. He’s simply defending himself against the witch doctors as he’s perfectly entitled to do. If this ends up costing you and me several hundreds of thousands of dollars then make damn sure you blame Newton, Lipshutz, Hyams, Esakoff, Tang and a few others.
March 20, 2012 at 11:56 AM
I agree Colin
The witch hunt has been under way against Penhalluriack. It does trouble me that any candidate standing in October may face the same barrage from the administration
March 20, 2012 at 12:33 PM
Come on Frank was special case, Bull at the gate, Frank. I am on Franks side but he is no angel. He also has trouble getting people onside because he is do dammed obtuse.
March 20, 2012 at 1:12 PM
another dumb comment. Since when is obtuseness a reason to call out the national guard of lawyers? If we’re talking about obtuse have you ever listened to the verbal diarrhea that comes out of Tang’s mouth and Lobo is away with elephants and other wildlife.
March 20, 2012 at 3:32 PM
Why can’t all the complainers stand for election in October 2012. I suppose once you are in you will do all the right thing and this forum will speak good of you.
What is all this Tang’s diarrhea you are talking about?