How has a single person managed to incapacitate a regional Victorian council with just a few pieces of paper?

Hepburn Shire businessman David Penman didn’t go through police or a lawyer, but has brought his local government to a standstill by serving criminal charges on a majority of its sitting representatives.

While the state government is working to amend the law to stop councillors being automatically stood down in such circumstances, for now, Hepburn Shire cannot hold meetings or make major decisions.

Five of its seven councillors, as well as its chief executive, have already or will face court, with Mr Penman acting as prosecutor.

He claims the CEO and one councillor misused ratepayers’ money by sending him a defamation concerns notice, and that the other four councillors passed a 2026/27 budget that was detrimental to the shire as parts of it were allegedly missing, misleading, or were substantially amended after the vote occurred.

Mr Penman has called private prosecutions the “last line of defence for private citizens” when institutions fail them.

But what are private prosecutions and how do they work?

The Office of Public Prosecutions manages most prosecutions in Victoria, with police often handling lower-level offending.

But media lawyer John-Paul Cashen said the law left a “little crack in the door” for any person to file a criminal charge against any other person.

They can do so at the registry of a magistrates’ court for a small fee and then must serve their accused with the charges.

“It’s an historical holdover,” Mr Cashen said.

“Our law dates back to old English laws from many hundreds of years ago.

“Before we had an Office of Public Prosecutions, before we even had a police service, it was really seen as the role of private individuals, really victims of crime, to bring a prosecution,” he said.

“It was only in the 1800s when we started getting a police force and a prosecution service that it shifted to the current model, which is, it’s the role of a public administration to bring the charges.”

The OPP may take over private prosecutions – which “almost always” happens, Mr Cashen said – and then decide whether to continue or withdraw the case.

In doing so, it considers the legitimacy and seriousness of the allegation and whether its involvement would be in the public interest.

“The main limitation on (private prosecutions) is that the OPP will usually take it out of the hands of the private citizen,” Mr Cashen said, adding that in every such case he had seen, the case had been dropped.

“ … But never say never: it’s possible that a private prosecution could be brought that continues.”

Barring changes to the law, there is little recourse for an accused person in any immediate sense, particularly if the OPP decides not to step in.

If a proceeding is found to be frivolous or vexatious, then the private prosecutor could find himself on the other side of the courtroom being sued for a malicious prosecution.

“It’s not something you see a lot in Australia – we see that on American TV shows all the time,” Mr Cashen said.

“But it is something that’s open to people in Victoria.

“If you improperly bring a charge because you don’t like someone and you want to get back at them or you want to hurt them, you can be sued for damages, for the legal costs incurred, for damage to reputation, even for hurt feelings and that type of thing.”

Rural Councils Victoria chair Robert Amos has said that “what is happening in Hepburn today could happen to any council tomorrow”.

Hepburn Shire itself said it was “bitterly disappointed with the impact that this individual’s actions are having on our community and its right to be represented by its democratically elected representatives”.

Amendments to the Local Government Act now before the state parliament would specify that councillors would only be stood down if charges against them came from a law enforcement agency.