March 5, 2021
A saga which has been played out for months across social media hit a Kingaroy courtroom for the first time on Friday morning.
Wondai-based web designer Judy Schulz has lodged an application for a peace and good behaviour order against South Burnett Regional councillor Scott Henschen (Division 6) and Kingaroy businesspeople John and Laura Newbery.
Ms Schulz ran Cr Henschen’s campaign for the March 2020 Council election but afterwards had a very public falling out with her client.
Ian Dempster, from Toowoomba-based solicitors Wonderley & Hall, appeared by phone link for the complainant, Ms Schulz, at the proceedings.
Mr Dempster told the court he had expected his client to be present in the courtroom but as he was fully instructed, he could deal with the matter in her absence.
Andrew Kelly, from Kingaroy-based KF Solicitors, represented Cr Henschen and the Newberys.
The appearance of the Newberys was excused because of their work commitments but Cr Henschen was present.
Crs Gavin Jones and Cr Roz Frohloff were also in the public gallery, along with a contingent of local media.
Mr Kelly sought an adjournment, saying it was his intention to make some preliminary applications prior to that date.
“At this stage we are contemplating an application to strike out the proceedings,” he said.
“Also, to make an application for security for costs, and there will be some disclosure orders sought as well.”
Magistrate Andrew Sinclair said “on first blush” the complaints and summonses in respect of the Newberys “at very least seem entirely devoid of any ground for issuing them”.
“We say the same in relation to Mr Henschen for various reasons,” Mr Kelly replied.
Mr Kelly said he proposed to have his applications filed before the next callover date on April 9.
Magistrate Sinclair reiterated he was perfectly prepared to hear the matter now and could probably strike them out now.
However, Mr Kelly said he was not in a position to argue it immediately and there was a possibility he would be engaging counsel in the matter.
He said they were serious proceedings for all his clients.
“We want to make sure we deal with the matter appropriately,” he said.
Magistrate Sinclair said that in relation to the Newberys, at least, there was no allegation of any threat, any activity or any fear.
“It seems to me on the face of it that these (applications) are defective,” he said.
However, if Mr Kelly wanted time to consider a previous court judgment and if Mr Dempster wanted to respond to Mr Kelly’s applications, he could hear it on April 9.
Mr Kelly asked the court to note all complaints had been sworn before a Justice Of The Peace, Mrs Jane Erkens, who was also referred to in an affidavit of Ms Schulz as a witness.
Magistrate Sinclair also noted for the record that a white folder of material had been handed over the counter (at the courthouse) but he said there was no capacity for any party to file any material “whenever they feel like it”.
“It should not have been tendered to this court. I will order a brief of evidence, if we get that far, but I note that I will keep the material on file but it hasn’t been read,” the magistrate said.
“It’s not part of the complaint, it’s not referred to in the complaint and whatever is in it won’t effect the validity of the complaint.
“The complaint and summons will have to rise and fall on their face.”
Mr Dempster said he was not aware of this happening and would note the Magistrate’s comments.
The proceedings were adjourned to noon on April 9.
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by Anne Miller
None of the allegations that have been posted widely – and inappropriately discussed – on social media were aired in open court on Friday.
However, these same social media posts have also referenced two recent General Meetings of the South Burnett Regional Council which are on the public record.
On January 20, Cr Danita Potter, Cr Gavin Jones and Cr Roz Frohloff made declarable conflict of interest statements in regards to Item 18.2 in the Confidential section of that meeting.
Item 18.2 stated: “Alleged Inappropriate Councillor Conduct Complaint Investigation and Recommendation. This matter is considered to be confidential under Section 254J-f of the Local Government Regulation, and the Council is satisfied that discussion of this matter in an open meeting would, on balance, be contrary to the public interest as it deals with matters that may directly affect the health and safety of an individual or a group of individuals.”
Cr Scott Henschen told the same meeting he had a declarable conflict of interest because he had been referred to the Office of the Independent Assessor, the body which hears complaints against councillors.
Cr Kathy Duff and Mayor Brett Otto also said they had declarable conflicts of interest due to previous complaints lodged against them.
This meant six of the seven councillors declared a conflict of interest and intended to stay away from the meeting.
CEO Mark Pitt said his recommended course of action, in accordance with the legislation, was to refer the decision in regards to Agenda Item 18.2 to the Local Government Minister for consideration.
A motion to this effect was moved and passed unanimously.
On February 24, Item 18.1 in the Confidential section replicated Item 18.2 from the January 20 meeting.
Again six of the seven councillors made declarations of conflict of interest.
Cr Potter said the complainant in relation to the investigation in Item 18.1 was a participant in a petition calling for her dismissal as well as the dismissal of Crs Jones, Frohloff and Henschen. The petition was now with the Office of the Independent Assessor.
Cr Henschen declared he was the councillor that was the subject of the investigation.
Cr Kathy Duff and Mayor Brett Otto also said they had declarable conflicts of interest due to previous complaints lodged against them to the OIA by the complainant.
Mr Pitt said that regrettably Council had received no formal response to its request from the January 20 meeting.
He suggested he re-submit the matter to the Local Government Minister seeking Ministerial approvals for Crs Otto, Jones, Frohloff, Potter and Duff to participate in deciding this matter.
A motion to this effect was moved and passed unanimously.
NB. An examination of the official register of Outcomes of Complaints Against Councillors, which by law the SBRC must publish, shows all complaints lodged with the the Office of the Independent Assessor since the 2020 election have been dismissed.