Glen Eira Council cops costs in adjourned case against former councillor
- Andrea Kellett
- November 06, 2013 4:25PM
Former Glen Eira councillor Frank Penhalluriack outside the Melbourne Magistrate’s Court today. Picture: Janine Eastgate. Source: News Limited
GLEN Eira ratepayers have copped an $11,800 legal bill after a crucial omission by council lawyers on day one of a criminal court case against former councillor Frank Penhalluriack.
Magistrate Denise O’Reilly has ordered the council pay defence teams’ costs for today’s wasted appearance.
But total costs to Glen Eira ratepayers for today’s gaffe will be far more than $11,800 once the bill of the council’s legal team, including a barrister and instructing solicitor, is taken into account.
The Melbourne Magistrates Court also adjourned the case until March, to allow council lawyers to prepare and give “proper” notice of crucial witness evidence.
Mr Penhalluriack, his company K.I. Penhalluriack Nominees Pty Ltd and former tenant Tomer Rabba have been charged with breaching the Public Health and Wellbeing Act 2008.
The council alleges they operated an illegal rooming house from a rental property on Hawthorn Rd, Caulfield, between May and June last year.
All have pleaded not guilty.
Magistrate O’Reilly told council lawyers she wanted “proper” notice of their intention to present hearsay witness evidence.
“There wasn’t proper notice given,” she said.
“I think it’s the right thing that they give proper notice.”
The evidence relates to a conversation a Glen Eira Council building inspector is alleged to have had with a man at the property last year.
The court heard council’s legal team could not find that man, known only as ‘Brent’, and they wanted “hearsay” evidence of what he is alleged to have said, allowed in court.
David Grace, for Mr Penhalluriack, objected and urged Ms O’Reilly to let the hearing continue without that evidence.
The discussion relates to how many people were staying at the property and could be relied on in the prosecution’s case that the house was being used as a rooming house.
It has since been demolished and replaced with a car park.
Ms O’Reilly adjourned the case to March 3 for three days.
Speaking outside the court, Mr Penhalluriack said he was “disappointed” about the delay.
COMMENT
What the Leader article does not make clear is that Council had 3 lawyers (including a barrister), their own corporate counsel, the ‘policing officer’ (Katz) and 3 other officers sitting in court all day. Another 3 officers were waiting in the wings to be called as witnesses in the days ahead. That should, we estimate, come close to at least another $15,000 that’s gone down the drain for nothing and is just the beginning. The case is scheduled for 3 days. If Penhalluriack wins then the cost to ratepayers could be huge.
After 3 mentions, and continual delays, Council’s lawyers still seem incapable of getting their act together. Shades of the original VCAT hearing where council was ordered to go away and write up its case properly. Instead of providing clear ‘briefs of evidence’, as required by law, ‘hearsay’ introduced at the last moment became the bone of contention. The magistrate ordered that Council undertake proper process by giving ‘notice’. In other words, basically telling council, and their expensive lawyers, that they’ve stuffed up! Also worthy of mention is that the charge against Mrs Penhalluriack was withdrawn right at the start. Make of this what you will!
Glen Eira Debates 
November 7, 2013 at 12:05 PM
Where there is smoke there is fire
Why would the council decide to go to court without some some evidence
of a problem.
November 7, 2013 at 12:18 PM
Easy peasy – cos they’ll go to any lengths to get Penhalluriack. They don’t give a stuff about wasting our money. If he wins they should sack Newton.
November 7, 2013 at 12:25 PM
Why would they go after Penhalluriack ?
Maybe he has done something not quite right. Nobody can just take somebody to court without SOME SORT OF EVIDENCE
November 7, 2013 at 2:00 PM
Perhaps you should direct your why question to Councillors. They are always readily available and supposedly freely respond to ratepayers questions.
As for “some sort of evidence” that really is a matter of interpretation. Anyone can take anyone to court for any reason and it’s up to the courts, after hearing and assessing the evidence presented, to decide on the validity of the claim. Frequently, In cases like this, the decision to take someone to court has more to do with a willingness to delve into their pocket rather than an objective assessment of the evidence, merits and possible outcomes of the case.
November 7, 2013 at 2:01 PM
Smoke = Brent with no last name and no address
November 7, 2013 at 5:55 PM
And last seen about 12 months ago
November 7, 2013 at 1:05 PM
I can’t believe this. After well over a year of legal preparation and three mentions (evidenciary hearings) Council and their legal eagles expected “Brent said” to be enough.
End result – more delays and legal costs to be racked up by Council and Penhalluriack. Council (ie. ratepayers) has to fork out for Penhalluriack’s costs for the current “wasted” hearing as well as Council’s costs. No wonder Penhalluriack got awarded costs when faced with this sort of ineptitude both on part of Council (they brief their lawyers and gathered the evidence) and their lawyers (they didn’t question the quality of the evidence or look at the rules related to hearsay).
Even assuming Council’s costs are the same as Penhalluriack’s (which is a big assumption) in one day Council spent $24,000 on nothing and will continue to spend. Add the already held three mentions 3 x $24K and you get a conservative $72,000 out the door for what!!!! Over 12 months and a conservative total of just under $100K for “Brent said” just doesn’t cut it.
I’m no legal eagle, but I’d say it’s looking a “case dismissed for lack of evidence” decision with costs being awarded to Penhalluriack and another conservative $72K (3 days of hearing in March) being forked out by ratepayers.
What the heck are Councillors doing about this gross mismanagement
November 7, 2013 at 1:07 PM
It would be wonderful if the same determination that council exhibited in chasing Penhalluriack was applied equally across all facets of Glen Eira. I would certainly like to know how many developers have been taken to court for not adhering to the conditions of their permits or how many infringement notices that were not paid have been taken up with formal prosecutions. I’d go even further and ask how many penalty notices have been withdrawn, or allowed to lapse.
If a court case is mounted on hearsay evidence then there is a real problem with the case to begin with. The magistrate made this pretty clear according to the article. When top dollar is being paid for the external consultants then the least that should happen is that they are on top of what they are legally required to do. Not that they would necessarily care, since they are being paid regardless.
November 7, 2013 at 3:14 PM
Frank is a ratepayers as well he funding both sides
November 7, 2013 at 3:40 PM
Yet another of life’s ironies – the poor sod
November 7, 2013 at 3:33 PM
You have to concede that Newton and his followers are persistent if nothing else. Instead of spending our dough on supporting residents at vcat for example they are prepared to throw money away on what is probably a wild goose chase. I wouldn’t be surprised if hundreds of thousands of dollars have already been spent and a heap more is going the same way. For what! But once you start a witchhunt you keep it going no matter what. Watch out Oscar, you’ve next in line. I reckon you should watch your back because your old friends have knives sticking in it, or call their bluff if you’ve got the dirt on them all.
November 7, 2013 at 3:59 PM
Lobo will be ok. But he will need to stay close to his ALP mates Delahunty and Magee
November 7, 2013 at 7:51 PM
If Lobo has dirt then he should divulge it or he’ll be painted with the same brush as those other slippery Councillors. What does he owe them to be so protective of them?
November 7, 2013 at 8:40 PM
What a waste of time and money by our council staff and their media representatives, our councillors. As Part 6 [Regulatory Provisions Administered By Councils] Division 1 [Nuisances] of Public Health and Wellbeing Act makes clear, it applies to “nuisances which are, or are liable to be, dangerous to health or offensive”. The alleged rooming house no longer exists. Whatever the health risks said building once posed, it poses no risk now.
Clearly the decision by Council to continue to pursue Frank Penhalluriack is politically-motivated and an act of bastardry. The further delay is a sad admission that without hearsay evidence there is no case, no means of establishing whether the place ever really was an unregistered rooming house. On top of that Council would still need to establish that Frank was the “proprietor”.
And then there’s the “minor” matter of the principle of proportionality under s.9: “Decisions made and actions taken in the administration of this Act— (a) should be proportionate to the public health risk sought to be prevented, minimised or controlled; and (b) should not be made or taken in an arbitrary manner.” It will be fascinating to hear what Council thinks the current risk to public health is.
November 7, 2013 at 10:03 PM
Reprobate, again you make perfectly good sense. I agree. This is bastardry in the extreme and total indifference to what this bastardry will cost. I honestly wish that the full story of the continuing vendetta against Penhalluriack would be made public and the reasons behind it. He may not have been the greatest politician on council but he was certainly the only one who bothered to ask all the difficult and embarrassing questions and was not intimidated into silence. He was the only councillor I think to vote against spending ten million on Duncan Mackinnon pavilion and also had plenty to say about reducing costs. That would not have gone down too well with our dictatorial CEO. Imagine having to actually answer questions on budgets, financing, governance and all those other important aspects of local government that are now under control thanks to a group of councillors who are nothing more than mouthpieces for an incompetent administration. That, I think is behind this ongoing vendetta.
November 7, 2013 at 11:50 PM
The fine is close to $10,000, it’s already cost ratepayers $11,800 excluding the Councils legal bills. The Councils interests have been hijacked by faceless individuals within, who wish to redistribute rate payer’s funds to legal professionals acting on behalf of the Council.
If the legal team were acting in the best interests of the Council, they would advise the Council to drop the case immediately, as the costs they have incurred far exceed the initial fine.
November 8, 2013 at 9:36 AM
The original infringement notice was $1200!
November 8, 2013 at 9:55 AM
The ongoing mess is a manifestation of the weaknesses of the Local Government Act. Despite platitudes like “transparency” and “accountability”, the Act permits (but does not encourage) meetings to be closed to the public in order to discuss a shopping-list of stuff. The CEO when preparing the Minutes interprets this freedom to mean that he doesn’t have to include details of all resolutions made and the reports or summary of reports considered in making those resolutions. The system is wide open to abuse when transparency and accountability can so easily be dodged. Ultimately Council is responsible as they condone the abuses, or more charitably, have failed to improve governance.
November 8, 2013 at 11:00 PM
Great post.
My reflex response was to unfairly lay the blame on individuals who make these decisions when the system is wide open to abuse.
November 8, 2013 at 11:17 AM
Typical. You pay a bib time defense Lawyer big bucks and he gets you off on a technicality. Let’s wait for the full facts to emerge. Frank has deep pockets and a belief he can do no wrong.He is not beyond the reach of the Law.
November 8, 2013 at 11:47 AM
No but Newton is. He musta been shitting himself at the thought of being cross examined at vcat until his buddy Liphsutz got the case adjourned cos he was a mate of the member.