Councillor sued by nursing home developer

Email edition in late November 2010

It came as a great surprise on the afternoon of Friday, November 19, when this strongly worded legal threat lobbed in the email box.

The Collins Street lawyers acting for Chinese Community Social Services Centre Inc (CCSSCI), an organisation which is described on its website as "the largest government-funded, non-profit welfare service provider for the Chinese-Australian community in the state of Victoria" is clearly hell-bent on initiating defamation proceedings.

CCSSCI is the organisation behind a controversial $15 million proposal to triple the size of the On Luck Chinese Nursing Home in Manningham's Green Wedge. Nursing homes are expressly prohibited in the Green Wedge yet Planning Minister Justin Madden intervened with remarkable speed this year and changed our planning scheme to give it the green light.

CCSSCI is chaired by Fred Chuah, who also doubles as Manningham's deputy mayor.

The threat from CCSSCI leaves little rooms for compromise. The letter states:

"We are instructed that unless you provide to us an apology and a retraction for your remarks which can be drafted by agreement with your solicitors (the gist of which will be that you acknowledge that the defamatory material published by you was without foundation and apologises to our client for the hurt and distress caused by your publication) and agree to pay out client's reasonable legal costs to date, then, and without further warning, we are instructed to issue defamation proceedings against you and vigorously prosecute the same at the earliest opportunity."

In terms of the defamatory material alleged to have been published, some of it is just quoting from reports by our professional officers. The legal threat says the following:

"In particular we note your comments as published in The Manningham Leader on 17 February 2010 to the effect that our client had 'attempted to bypass regular council planning processes', and that our client's conduct set an 'undesirable precedent', was 'an inappropriate use of the planning tools', was lacking in 'transparency' and was not engaging with 'regular council planning processes'."

How can it be defamatory to quote from an officer report that was unanimously passed by the council, albeit with the deputy mayor absent? This is the publication in question:

Text of letter from Stephen Mayne published in The Manningham Leader on February 17, 2010

Kim Au, CEO of the Chinese Community Social Services Centre which manages the On Luck Chinese Nursing Home in Donvale's Green Wedge, was last week quoted in The Leader describing the planning Minister as the “appropriate authority to deal with the request” to triple the facility to 180 beds in a $10 million-plus expansion.

This is a highly contestable claim. Councillors last week unanimously passed a report from our professional planning officers which said: “An issue of particular concern to officers is the planning process being used. For greater transparency it is considered that a consistent approach by DPCD (Department of Planning and Community Development) is preferable to assess and approve any proposals for the expansion of non-conforming uses in the green wedge.”

“The planning process being used for the nursing home sets an undesirable precedent and is considered an inappropriate use of the planning tools.”

In the interests of transparency, it should also be disclosed that Kim Au is married to Manningham's deputy mayor Fred Chuah, who was the visionary behind the original development of On Luck and still chairs the board to this day.

Whilst I'm a strong supporter of expanding residential care bed numbers across Manningham, this situation is most unfortunate and On Luck should withdraw its request to the Minister and re-engage with regular council planning processes.

Cr Stephen Mayne
Heidi Ward

This whole situation really is an astonishing attempt to chill free speech. Ministerial interventions on major projects that side-line councils and communities are highly controversial in Victoria yet here we have the beneficiary of one threatening to sue a councillor who criticised the process.

For a site developer to demand a large sum of money from a councillor in this way is also quite extraordinary. I've sought clarification on exactly how much CCSSCI want to cover their legal expenses given the whole saga of the On Luck Chinese Nursing Home in Manningham has been swirling around all year.

The legal letter makes highly contentious claims about CCSSCI's approach to this issue given that a Councillor Conduct Panel brought against deputy mayor and CCSSCI chairman Fred Chuah is yet to release its findings. It's as if the panel has already concluded CCSSCI did nothing wrong.

Manningham is also spending $38 million building a brand new civic precinct on Doncaster Hill which will provide subsidised rent for this very organisation which is now proposing to go the legal knuckle against someone who continuously supported the investment and their involvement.

Bizarrely, I was also the councillor who expressed the strongest support for an additional $20,000 to go to CCSSCI for new programs as part of the mid-year budget review. It seems we're making additional grants to a service partner which has decided to spend scarce funds suing a councillor.

And at the last council on October 26 I went out of my way to make conciliatory comments about the On Luck expansion whilst supporting an officer report raising a whole series of concerns about the proposal which the local community now has little influence over. See item 9.4 in the minutes and note the officer criticisms were passed by a 5-3 majority with Mayor Pick voting in favour.

Sensitive issues: On Luck, Eastern Golf and Matthews property sub-division proposal

This latest blow-up at Manningham will be a major issue at next week's November 30 council meeting when we've got some sensitive matters to deal with about how the state government handles development of the 48ha Eastern Golf Club site in Doncaster and whether we'll apply to the state government to allow a sub-division on some privately held undeveloped land in Donvale (just down Tindals Rd from On Luck) which falls just inside the Urban Growth Boundary.

The community is up in arms about the proposed Amendment C83 related to the Matthews family property and will no doubt be looking on at this On Luck saga with amazement. What would the community think if the Matthews family started demanding money from councillors and threatening litigation?

Over the past 30 years, there has arguably never been a major privately owned project in Manningham that has received a fast-track Spring Street rails run quite like On Luck, yet those who take issue with it are now seemingly set to put their personal assets on the line in court.

Watch this space for developments in the coming weeks and we'll endeavour to keep readers fully informed.

Letter responding to CCSSCI legal threat

Wednesday, December 8, 2010

Hi Jasper,

Sorry I've not formally got back to you within the 14 days stipulated in your letter of November 19, 2010.

I was waiting to see the final report of the Councillor Conduct Panel and now, additionally, will be interested to see if and how Manningham's deputy mayor and CCSSCI chairman Fred Chuah responds at the December 14 Manningham council meeting.

In the interests of everyone being able to move on, I hope the panel findings will be accepted.

In light of these findings, obviously I won't be apologising and contributing to CCSSCI's legal costs as requested in your letter.

However, my position is very much that all parties need to reconcile and put this matter behind us. I have made no public comments critical of CCSSCI or Fred Chuah since the panel findings were released. Indeed, I was an apology at the council meeting where it was tabled and encouraged my fellow councillors to make no public comments about it.

I strongly believe my public positions have been consistent with the role of an elected councillor to protect good governance and planning policies at Manningham.

In the future, I would be happy to work constructively with CCSSCI to try and rebuild community support for its activities. However, this would not be achieved through unnecessary litigation.

I accept the need for On Luck to expand. The Chinese Community needs more beds for its frail aged and planning approval from the Minister will be forthcoming.

In different circumstances, I would very much have been a supporter of the On Luck expansion from the outset. However, unfortunately we all ended up mired in disagreement over process.

Please confirm in writing that CCSSCI will not be initiating legal proceedings against me, after which I look forward to working co-operatively with CCSSCI as an important service provider in the Manningham community.

Yours Sincerely
Cr Stephen Mayne

Reconciling past differences in Manningham

The Manningham Leader has done a huge splash on the panel findings today and deputy mayor Fred Chuah has chosen not to respond given his poor health. It is certainly an unfortunate situation which can hopefully be resolved in the coming weeks.

Subsequent letter from CCSSCI regarding defamation threat

CCSSCI sent this letter on December 15 toning down the threats but also requesting a written apology.

December 22 editon - peace breaks out as deputy mayor resigns from Manningham council

The following statement was sent to the local Manningham media on Wednesday:

"Manningham Councillors Stephen Mayne, Charles Pick, Ivan Reid and David Ellis today announced they had reached an understanding to improve councillor relations in 2011."

etc etc

Meanwhile, in an unrelated development, our deputy mayor Fred Chuah has resigned for health reasons. This is how the Manningham Leader reported the story online. I've submitted a detailed letter to the Manningham Leader for publication in next week's edition which includes, amongst other comments, the following lines:

I'd like to wish former deputy mayor Fred Chuah JP a speedy recovery from his serious health challenges.

I'd like to place on record that Fred has contributed enormously over many years to the wellbeing of the Chinese community and elderly citizens more generally through positions such as his directorship at Manningham Community Health.

It's a real shame his two years on council didn't work out for the better as he had a lot to offer.

Statement to Manningham Leader on the question of legal costs after writ issued

"I'm yet to submit an expense claim of any sort to council, but am now being sued for my personal assets over comments which supported a council decision and quoted directly from an officer report. Therefore, I've asked the CEO to provide advice as to what would be the appropriate course of action. It is noteworthy that council is also exposed to the legal costs of all parties in the VCAT appeal lodged by Fred Chuah, but I'm very concerned to try and minimise costs incurred by ratepayers and would much prefer to try and settle all outstanding issues."

See the story which was published in The Manningham Leader. Extract from email edition in March 2011

Sued by developer in the Victorian Supreme Court

Before leaving local government matters, I should disclose that the developer of a nursing home in Manningham's Green Wedge zone has issued this Supreme Court writ against me and another councillor, David Ellis, alleging defamation.

The writ only runs to 8 pages but was drawn up by Simon Wilson QC, one of the top Victorian silks who costs about $8000 a day.

I've written previously about this issue when legal threats were first made last year and in terms of the reaction so far, The Manningham Leader produced this page five lead last Wednesday.

We've entered into discussions about how the matter will be defended but no final position has been reached. However, the most likely scenario would involve a curtailment of future public comment as the case proceeds.

There was certainly a curtailment of public comment ahead of the last Manningham council meeting.

I was served with the writ three hours before council was due to debate and vote on the official council position on the nursing home development plan before the state government was due to make its final decision.

The effect of the writ was to trigger a conflict of interest under the Local Government Act which meant I was removed from the debate and vote courtesy of being involved in so-called “civil action” related to the proposal.

Under this formula, any developer can slap a defamation writ on a councillor to silence them and knock them out of a vote.