Civil case against councillor sensationally dismissed
THE civil court action against South Burnett councillor Scott Henschen has been dismissed, barely a month after it was first brought before the court.
Cr Henschen’s former campaign manager Judith Ann Schultz had brought an application for a peace and good behaviour order against the councillor and two associates – Laura and Jack Newbery.
Ms Schulz initial brought the application before the court on March 5, but then indicated she would be withdrawing the complaint.
This was after the dispute had played out for months on social media.
However, K & F Solicitors’ Andrew Kelly – acting for Cr Henschen and the Newberys – opposed the withdrawal and sought for the case to be dismissed and cost awarded against Ms Schulz.
Magistrate Sinclair sided with Mr Kelly and ordered Ms Schulz to pay costs of $500 for each of the complainants.
Ms Schulz brought the action earlier this year, alleging the respondents had targeted her in a number of serious ways.
Documents submitted to court in the matter were obtained by the South Burnett Times, and revealed Ms Schulz alleged the following as the facts of the complaint, that Scott Henschen allegedly: Assaulted the complainant at Hotel Cecil in Wondai, destroyed intellectual property, procured another person to harm at “the windfarm” on November 8, 2020, cut down business signs from Cleggs Fencing or procured another person to do so.
At the first hearing into the matter on March 5, Mr Kelly informed the court he would seek to have the matters struck out and costs awarded.
Magistrate Sinclair also raised concerns with the application, noting parts of Ms Schulz application appeared to lack grounds for an order to be issued.
“I must say just on the first blush, the complaints and summonses, in respect with the Newberys at the very least, seem entirely devoid of any grounds for issuing them,” Magistrate Sinclair said at the time.
Magistrate Sinclair also raised issue with a white folder which had been handed to the court in relation to the case.
“There is no capacity for any party to follow any material to the court whenever they feel like it. It should not have been handed to this court,” Magistrate Sinclair said.
“I will order a brief of evidence if we get that far, I will keep the material on file, but it hasn’t been read – it’s not part of the complaint, it’s not referred to in the complaint and whatever is in it won’t affect the validity of the complaint.
“The complaint and summons will have to rise and fall on their face.”
At the second hearing, Ian Dempster, from Wonderly and Hall Solicitors, represented Ms Schulz and informed the court she had decided to withdraw the complaints and had informed the court and Mr Kelly on March 16.
However, Mr Kelly opposed the withdrawal, noting his understanding of the law to be that parties could not withdraw complaints and that costs could not be awarded if the complaints were withdrawn.
“Your honour would be aware that a simple withdrawal of complaints, would mean that your honour does not have power to order costs and that‘s the reason why we’re seeking that the complaints be dismissed,” Mr Kelly said.
Arguments and deliberation then occurred over several hours, with some of the case law referenced dating back to the 1800s.
In handing down his findings, Magistrate Sinclair noted the unusual nature of the law surrounding peace and good behaviour orders.
“It has been commented by various judicial officers for many years that this is a rather odd situation,” he said.
“It’s a rather odd state of affairs … I don‘t understand but I don’t need to understand, all I need to know is that parliament has made that choice.”
He found that under the law, the complaint could only be withdrawn with consent of both parties and given the lack of consent from the respondents chose to dismiss the application.
“I‘ve decided not (to allow the application to be withdrawn) for the very simple reason that the courts are placed in society to enable people to resolve their disputes,” he said.
“But one of the obligations which bringing a matter to court places on a party is to ensure that they are on firm ground before they start, especially in a matter where the other party is likely to cause themselves to lawyer up and have costs and inconvenience.”
Magistrate Sinclair ordered Ms Schulz to pay each of the defendants $500 fixed in costs, with the costs “to be recoverable by execution against the goods and chattel of the complainant”.
He also made an order giving the defendants a certificate of dismissal, as each of the complaints were dismissed.