Carol Altmann – The Terrier

If you think the Supreme Court battle between the Warrnambool City Council and dumped CEO Peter Schneider is just a local bunfight, think again.

The potential implications of this case for council’s right across Victoria was made clear by the presiding judge today.

The Honourable Justice Michael McDonald said if Mr Schneider loses his legal fight on the grounds argued by the WCC, every council CEO across Victoria was at risk of “figuratively (being) taken out the back and shot”.

“If you are successful, then any local government within Victoria would then have the power to terminate a contract for no reason at all,” Justice McDonald told counsel for the WCC, Ragu Appudurai.

Justice McDonald said, “looking at the very broad, non-legalistic picture”, the outcome of this case had wide-reaching implications for councils far beyond Warrnambool.

One is the “no reason” clause – like that used to dismiss Mr Schneider – left all council CEOs vulnerable to tribalism of councillors.

“A CEO could be caught in the cross-fire of factional warfare between councillors and figuratively get taken out the back and shot,” Justice McDonald said.

Justice McDonald said the CEO position was “an extremely important position” and if the WCC was found to be able to sack Mr Schneider without reason or fairness, the impact on good governance would be devastating.

“That would be an extraordinary outcome and extraordinarily destructive for good governance,” he said.

“(It would be) quite an extraordinary outcome …a council can simply employ someone on a contract which permits the council to (dismiss them) for no reason at all.”

The nub of the case is whether Mr Schneider’s individual contract holds more sway than section 94 (c) of the Local Government Act, which guarantees all council workers will be treated fairly.

Mr Appudurai today spent several hours outlining the council’s argument that Mr Schneider is not a regular council employee, but a senior employee on a specific contract.

As such, the council could sack him using the “no reason” clause in this contract and had no obligation to treat him “fairly”.

This lack of fairness included the four ex-councillors not giving Mr Schneider a chance to defend himself on the night of his sacking.

Lawyers for Mr Schneider, however, argue that no individual contract can over-ride the Act, which is the law.

They say that Mr Schneider was sacked unlawfully and so is – technically – still the CEO of the Warrnambool City Council.

This is part of what Justice McDonald will have to determine in his judgment that he hopes to hand down by 28 June.

In the meantime, an interesting question raised by the Justice today was, if Mr Schneider wins his case, what happens to the $200,000 payout he received last year?

Would it need to be repaid?

Not according to Mr Schneider’s lawyer David Grace QC, who argued that because Mr Schneider was sacked illegally, this money (after tax) was the wages he would be entitled to keep from the day he was sacked to the day he is reinstated.

In other words, Mr Schneider is still – technically – the CEO.

The WCC, however, saw this payout as “the price it had to pay” to sack Mr Schneider without reason.

To quote Justice McDonald: “there are plenty of curly questions being thrown up by this case”.

That might be the understatement of the year.

Final submissions will be heard in the Supreme Court tomorrow.

Carol Altmann – The Terrier

Lawyers for sacked Warrnambool City Council CEO Peter Schneider today argued in the Supreme Court that he was a victim of “subterfuge” and a “concerted plan” by four former councillors to get rid of him.

Today (23/3) was the opening of a two-day hearing into whether Mr Schneider was denied natural justice when he was sacked on 13 July last year on a 4/3 vote of the then-councillors.

The day started with a surprise move from the council’s lawyer, Ragu Appadurari (Russell Kennedy lawyers), suggesting witnesses could be called to give evidence and cross-examined, rather than the court relying solely on written affidavits already lodged.

This move would have potentially blown out the length of the hearing and delayed the delivery of a judgment until the end of the year: making it impossible for the WCC to appoint a CEO until late 2021.

The Honourable Justice Michael McDonald said, if witnesses were called, he could no longer aim to meet a 26 June deadline that he set after last week’s injunction hearing.

Perhaps not surprisingly, this move to call witnesses was dropped by the WCC after a short adjournment.

The rest of the day was spent by Mr Schneider’s counsel, David Grace QC, outlining the key points of his case, including the seeking of legal advice by then Councillors Kylie Gaston, Michael Neoh, David Owen and Sue Cassidy.

Mr Grace argued this legal advice from Maddocks lawyers was not approved by the full council, was not shared with the other three councillors and was used to map out “the easiest way” to get rid of Mr Schneider with less risk of court action, or public outrage.

That “easiest way” outlined by Maddocks was to sack Mr Schneider using the “no reason” clause in his contract, rather than sack him for poor performance, Mr Grace said.

The case hinges on whether this “no reason” clause holds more weight than the protections of the Local Government Act.

The court also heard that former Mayor Tony Herbert, having learned of the move to sack Mr Schneider on 13 July, prepared 31 questions to ask at the meeting.

These questions included whether the councillors would give Mr Schneider a chance to defend himself.

The four councillors, however, “stayed mute” to all 31 questions, having received legal advice not to respond.

If they did respond, they would then have to justify the “causes” for sacking the CEO, Mr Grace said.

Justice McDonald earlier in the day indicated he had had some taste of the dysfunctional relationships within the former WCC from the affidavits lodged by the four councillors, Mr Herbert, the acting CEO and Mr Schneider.

“I will not be having any regard to any of the material about so-and-so had an unprofessional relationship with so-and-so…for heaven’s sake,” Justice McDonald said.

“I don’t have any enthusiasm at all for hearing evidence on the inner workings of the WCC…(and) it is of no legal bearing on the legal questions which will determine the case.”

The hearing continues tomorrow with Mr Grace, followed by Mr Appadurari for the defence.

Carol Altmann – The Terrier

UPDATED: All seven of the new Warrnambool City councillors are poised to step up and ban racehorse training on beaches west of Thunder Point.

[I have updated this story to include Cr Max Taylor, who has replied tonight.]

With the recent release of the council’s draft Wild Coast Landscape Management plan, they are in the box seat to do it.

And based on answers to questions I sent to all seven councillors last week, they are ready to put this long-running and ugly fight to an end.

If they don’t, the WCC might as well set up a vegetarian burger bar outside 25 Liebig St and sell steak sandwiches, such would be the hypocrisy in a management plan that is packed – at long last – with ways to protect the wild coast from Levy’s Beach to Spooky’s Beach from further harm.

For some reason the Warrnambool Racing Club – apparently in defiance of the changed mood of many local trainers – can’t seem to let Levy’s and Spooky’s go.

This is despite the demise of king-pin trainer Darren Weir, sustained community anger, no racehorse training on the beach for more than four years, a loss of social licence, and the absolute privilege of training at Lady Bay.

Despite all of this, the WRC, according to a recent media report, just keeps picking the scab.

The WRC keeps waving a red rag….it might still come back in and use Spooky’s beach….maybe it will, maybe it won’t.

For this, we can thank the majority of former councillors who ignored the wishes of the wider community, agreed to the law change, split the place open, and left behind another shit show for the new council to clean up.

Given we now have fresh eyes on this old headache, last week I asked our new councillors two simple questions: the first was whether they supported commercial racehorse training in the wild coast area.

Six of those who responded said no, they did not, or as Mayor Vicki Jellie put it, “absolutely not”.

(Cr Taylor responded after the deadline but tonight said he was opposed).

Cr Angie Paspaliaris said she was a WRC member, sponsor, and a race goer, but she, too, was “hesitant” to support racehorse training in the area, given the strong community opposition.

Seven out of seven, even including a “hesitant”, is a whopping turnaround.

I also asked the councillors a second question, which was whether they would support an amendment to change the planning rules to once again ban racehorse training in this area.

Four of the six who responded said a firm yes, they would.

Mayor Jellie went further, saying not only did she support changing the planning rules, she was asking WCC staff how it could be done.

Cr Paspaliaris said she would consider it, and Cr Blain said he thought the council saying no to racehorse training would be enough.

[You can read the councillors’ answers in full here.]

All of this is a big vote of support not only for the community’s wishes, but for the draft management plan.

This draft plan really gets it.

It sets out plans for CCTV cameras to catch hoons, for unofficial tracks to be closed off, for ravaged areas to be revegetated, for the indigenous community to be intimately involved in future decision making and management, for better dog walking controls, and for the wildness of this area to be preserved for future generations who, like us, will wonder how motorbike rallies were ever allowed at Tower Hill.

Yet tucked in the middle of this plan is the steak sandwich – the racehorse training that would allow up to 100 racehorses a day.

The experts who put this management plan together are powerless to change the law, but our new councillors can.

That time is now.

[You can read more about the wild coast plan and have a say until 30 March here.]

Q: Do you support commercial racehorse training in the wild coast precinct? 

Would you support the removal of the planning amendment which currently allows this activity and, if so, will you put forward a motion to request that the Planning Minister remove this amendment?

Mayor Vicki Jellie:

I do not support racehorse training in the wild coast precinct – absolutely not.

Yes, I would support the removal of the planning amendment and have made inquiries with associated WCC staff as to how this can occur, and have received options of how this can happen.

Deputy Mayor Richard Ziegeler:

I do NOT support commercial racehorse training on any of the beaches.
I support the removal of the amendment and would so vote.

Cr Otha Akoch:This issue of racehorse training on the beaches is not popular as far as community is concerned. As a councillor, I will go with the community in supporting the removal of the amendment.

Cr Debbie Arnott:  I do not support race horse training in the wild coast and I would support an amendment.

Cr Angie Paspaliaris: I have a responsibility to acknowledge the community’s unrest and opposition that commercial horse training at Levy’s/Spooky’s provokes, which means I am hesitant to support commercial horse training in the wild coast precinct.

I am a WRC member and sponsor, a race goer; as a Councillor, my balanced view is that it is not unreasonable to expect that the Warrnambool Racing Club has the capacity to adjust and adapt its approach and operations in order to address and respect the environment, community concerns, and a changing society.

I would consider an amendment.

Cr Ben Blain: “With the information presented to us currently on this issue, I couldn’t support this proposal.

I believe there would need to be more work done with all stakeholders in relation to any proposed changes of use in this precinct. As far as I am aware there is no active interest from trainers to use this precinct at the moment. I think the current arrangements in relation to horse training in other areas meet the trainers needs.

“I don’t see removing the planning amendment as necessary, if council aren’t supportive of the the proposal it won’t happen…even if the amendment was removed, the planning minister can always reinstate it if there is support for the proposal in the future.

Cr Max Taylor: I am against the training of racehorses at Levy’s Beach and west of there, including Spooky’s.

JUST IN: Warrnambool City Council sacked CEO Peter Schneider has successfully stopped the WCC from hiring a replacement until a judgment is handed down in his Supreme Court challenge.

The Supreme Court hopes to hand down its decision by 1 June 2021, with the hearing scheduled for March 23 and 24.

Mr Schneider had applied for an injunction in the Supreme Court to stop the council going ahead with hiring a new CEO.

The injunction hearing was held in the Melbourne Supreme Court this morning before the Honourable Justice Michael McDonald.

The injunction application was dismissed, however, when the WCC agreed to suspend the hiring process.

It was revealed during the hearing that the WCC was due to meet next Monday, March 15, to make a decision on the new CEO.

Justice McDonald today expressed his concern several times about the recruitment process underway, saying it didn’t “sit very well with the administration of justice”, given Mr Schneider’s case is yet to be heard.

Justice McDonald also raised concerns several times about whether applicants for the CEO job had been told about Mr Schneider’s court action.

Justice McDonald said he doubted any applicant who was “fully appraised” of the situation would be likely to “relocate their family from interstate, resigning from their job or whatever, if Peter Schneider could walk back in the door and take up his position”.

“I can’t understand why anyone properly advised would do so,” he said.

Today’s hearing gave some fascinating insights into what we can expect from the full hearing.

One was that Mr Schneider, if successful, is seeking to be reinstated immediately or, as it was put today, “walk back into the door to take up his position”.

Based on what was said in the hearing today, this is entirely possible.

Justice McDonald indicated that the nub of the argument was whether the council was legally able to sack Mr Schneider for “no reason or any reason”, or whether this part of his contract is over-ridden by the Local Govt Act which says all employees must be treated fairly.

The March 23-24 hearing will also examine whether Mr Schneider, as a CEO, had protections under the council’s Enterprise Bargaining Agreement (EBA).

From the arguments put forward by lawyers for both sides this morning, Mr Schneider’s court action is shaping up as a test case on just how far a “no reason or any reason” clause can stretch.

It has also exposed the decision by four of the seven former city councillors to dump Mr Schneider is not as cut and dried as they hoped it would be.