Cutbush v Scenic Rim Regional Council
[2019] QCAT 80
•28 March 2019
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Cutbush v Scenic Rim Regional Council [2019] QCAT 80
PARTIES:
PAUL CUTBUSH
(applicant)v SCENIC RIM REGIONAL COUNCIL
(respondent)
APPLICATION NO/S:
GAR325-17
MATTER TYPE:
General administrative review matters
DELIVERED ON:
28 March 2019
HEARING DATE:
8 October 2018
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
1. All outstanding applications of a procedural nature are refused.
2. In the application for a review of the decision about the dog, the decision made by Scenic Rim Regional Council on internal review on 27 November 2017 to confirm the concurrent regulated dog declaration and destruction order and combined information notice made on 6 November 2017, is confirmed.
3. There shall be a stay of the destruction order for 28 days from the date of this final decision. The stay is conditional upon the owner of the dog and a responsible person for the dog ensuring that the requirements under schedule 1, section 3, of the Animal Management (Cats and Dogs) Act 2008 (Qld) are complied with for the dog the subject of the declaration.
4. The non-publication order made by the tribunal on 11 May 2018 as varied by the order of
10 September 2018 is continued for a period of 3 years from the date of this final decision except that the non-publication order is varied to permit the publication of details of documents and evidence before the tribunal and identification of persons in so far as recited in the published reasons for the decision, and* information which enables the identification of Paul Cutbush and Scenic Rim Regional Council.* corrected on 27 May 2019 pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009
5.
CATCHWORDS:
ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – concurrent regulated dog declaration and destruction order following seizure of the dog – where dog attacked and bit people on three different occasions – where owner shows no acceptance of the events, remorse or insight – where owner shows disrespect for the processes of animal management – whether further risk of noncompliance identified – whether ‘last resort’ test is the correct one to apply – whether right to confirm destruction order
ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – concurrent regulated dog declaration and destruction order following seizure of the dog – where entry to premises not by warrant or with consent but using additional powers of entry under section 112 of the Animal Management (Cats and Dogs) Act 2008 (Qld) and in compliance with section 122 of that Act – meaning of ‘place’ in those sections – whether entry and seizure was lawful
ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – provision of evidence to parties and to the tribunal – whether such evidence needs to be ‘sealed’
Animal Management (Cats and Dogs) Act 2008 (Qld) s 3, s 4, s 59, s 89, s 94, s 95, s 107, s 112, s 122, s 125,
s 127A, s 188
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 33, s 73, s 85, s 86, s 143
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 31, r 32, r 35Bradshaw v Moreton Bay Regional Council [2018] QCATA 139
Cutbush v Scenic Rim Regional Council (No.2) [2018] QCAT 315
Cutbush v Scenic Rim Regional Council (No. 3) [2018] QCAT 350
Furnell v Ipswich City Council [2018] QCAT 369
Naidu v Brisbane City Council [2014] QCAT 420
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
Perryman v The Commissioner of State Revenue [2016] QCAT 26
Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1
Thomas v Ipswich City Council [2015] QCATA 97APPEARANCES & REPRESENTATION:
Applicant:
Represented by solicitors from time to time but no appearance at hearing
Respondent:
James Dillon (counsel) instructed by King and Company
REASONS FOR DECISION
This is a review of a decision made by Scenic Rim Regional Council to declare a dog a dangerous dog and to issue a destruction order in respect of it. The dog is a red cattle dog named ‘Bandit’ and Paul Cutbush is its registered owner.
After a series of interlocutory orders and directions, the matter was listed before me for a two day hearing starting on Monday 8 October 2018. The hearing followed an unusual course. When considering the likelihood of compliance with the requirements of the dangerous dog provisions (as an alternative to the destruction order) I will need to explain this in more detail. For the moment, I need only to explain that despite being ordered by the tribunal to attend the hearing, Mr Cutbush did not do so. Instead, during the hearing he sent a number of emails to the tribunal containing his arguments and material. This largely duplicated material already before the tribunal but some of it was new. Since the hearing he has submitted more material. I confirm that I have accepted in evidence all the material given to the tribunal by Mr Cutbush at any time and in any form, and have taken it and all his submissions into account.
Other matters before me for this final decision
Quite apart from the central issue before me about the future of the dog, there are a number of other matters which I will be dealing with in this final decision. These have come about because Mr Cutbush made numerous applications throughout the proceedings both before and after the hearing – some formal (on approved forms) and some informal (in emails). The option of ignoring any application which is not on an approved form may not always be open to the tribunal. This is because the tribunal should ensure that proceedings are conducted in an informal way[1] and because the tribunal must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act or the rules and a proper consideration of the matters before the tribunal permit.[2] In addition to these requirements, the tribunal may waive compliance with the procedural requirements of the QCAT Act or the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (Rules).[3] And in a case like this one, where a party has caused damage to his own case by not attending a hearing when he was ordered to do so, any way in which that damage can be reduced should as a matter of procedural fairness be considered.
[1]Section 4(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
[2]Section 28(3)(d) of the QCAT Act.
[3]Section 61(1)(c) of the QCAT Act.
Although in the usual case the tribunal’s aims and rules referred to above generally work well, in the case of Mr Cutbush, due to the volume and frequency of correspondence from him, managing this matter in an efficient way became a problem for the tribunal. The tribunal’s resources were being used well beyond the norm for cases of this sort.
In an attempt to minimise these difficulties, many matters have been reserved to this final decision. Only applications which warranted attention prior to this final decision about the dog have been dealt with.
The applications from Mr Cutbush formally decided prior to this final decision can be divided into three categories: those dealt with before the hearing, those dealt with at the hearing, and those dealt with after the hearing.
Applications dealt with before the hearing listed for 8 and 9 October 2018
(a)Application dated 25 September 2018 to attend the hearing on 8 October 2018 by telephone. After receiving submissions from the parties on 4 October 2018 about this, on Friday 5 October 2018 (in the ‘first 5 October 2018 order’) Member Kanowski refused this application and required Mr Cutbush to attend in person. The directions did however, permit his witness Mrs Cutbush, and possibly another witness to give evidence at the hearing by telephone.
(b)Application dated 27 September 2018 for the hearing to be postponed for 6 months. The grounds were relied on were various, but the main suggestion was that this would allow the dog in question to be assessed by an independent animal behavioural specialist. After receiving submissions from the parties on 4 October 2018 about this, in the first 5 October 2018 order Member Kanowski refused this application and directed that the hearing was to proceed as scheduled.
(c)Application dated 2 October 2018 for the hearing to proceed as a hearing on the papers. After receiving submissions from the parties on 4 October 2018 about this, in the first 5 October 2018 order Member Kanowski refused this application and directed that the hearing was to proceed as scheduled.
(d)In the first 5 October 2018 order, four applications made by Mr Cutbush were postponed to be dealt with at the hearing. They were an application that the hearing be conducted as a closed hearing, an application concerning non-publication, an order seeking production of certain items from the Council’s witnesses, and for the exclusion of the evidence of the Council’s expert Dr Day.
(e)Mr Cutbush had made other formal and informal applications prior to 5 October 2018. All these were referred to Member Kanowski but none were successful and they were refused in the first 5 October 2018 order.
(f)The tribunal emailed the first 5 October 2018 order to Mr Cutbush at 11.43am on Friday 5 October 2018.
(g)
After receiving the first 5 October 2018 order, in an email sent to the tribunal at 3.40pm Mr Cutbush sought again to get the hearing postponed. The grounds relied on appeared to be the same as before, with the possible addition that he wished to seek legal representation. That email was referred to Member Kanowski who made an order later that day confirming that the hearing on the following Monday would proceed (the ‘second 5 October 2018 order’). This order was sent to Mr Cutbush that day and received by him. The order also said that the applications made by Mr Cutbush in his email sent at 3.40pm on
5 October 2018 would be considered at the commencement of the hearing on
8 October 2018.
(h)
Mr Cutbush requested written reasons for the second 5 October 2018 order and these were provided by Member Kanowski and published at Cutbush v Scenic Rim Regional Council (No. 3) [2018] QCAT 350. In doing so, Member Kanowski also provided some reasoning for his order made earlier on
5 October 2018 in applications covering the same ground.
Applications dealt with at the hearing
(a)On the morning of 8 October 2018 when the hearing commenced before me, Mr Cutbush did not appear. Bearing in mind his applications to postpone the hearing, for the hearing to be conducted ‘on the papers’, and to attend by telephone had been refused, and that he had been directed to attend the hearing in person, it was inappropriate for the tribunal to telephone him. Instead, for reasons given orally at the hearing, I made a decision to proceed in his absence.
(b)I also dealt with the matters listed in the first 5 October 2018 as reserved to me to be dealt with at the hearing, and various other matters arising from the emails from Mr Cutbush, giving oral reasons for my decision on those matters.
The oral reasons given on that day are available to Mr Cutbush.
Applications dealt with since the hearing
(a)
Applications for extension of time to provide written final submissions in the review of the decision about the dog, granted on 9 November 2018,
20 November 2018 and 11 February 2019.
(b)
Application to reopen the proceedings filed on 13 November 2018. This application was given file number RE019-18. Directions were given on
21 November 2018. Both parties filed submissions in respect of this application and a final decision refusing this application was made on 11 February 2019.
(c)Application for an interim order seeking an order for daily family and pet visitation and exercise rights to the dog pursuant to ‘section 129 of the Animal Management Act 2008’ and ‘Chapter 3 p 1 s 17 of the Animal Protection Act 2001’. A final decision refusing this application was made on 11 February 2019. This was made on the grounds that the tribunal has no jurisdiction to make such an order.
(d)Applications from both sides for contempt. These applications have been referred to the President.
Other applications which could fairly be dealt with at the same time as this final decision have been left over to save on the tribunal’s resources. This also had the benefit of limiting work and expense for the Council in needing to understand and making submissions about these matters.
Applications and requests dealt with in this final decision
These are most efficiently dealt with in two parts. In the first part are those applications and requests which can be dealt with in a summary manner, and in the second part are those which require more consideration.
Applications which are appropriately dealt with in a summary manner are:-
(a)A request in the email sent at 3.40pm on 5 October 2018 that the tribunal order the Council not to give to the tribunal (a) any more ‘irrelevant and inadmissible material’; and (b) misleading information about whether it carried out an investigation about the incident of 11 September 2017. This is refused because even if there was any such material the tribunal would not be misled by it because the tribunal is able itself to identify the evidence of value in its decision in the review about the dog.
(b)Requests in the email sent at 3.40pm on 5 October 2018 that the tribunal (a) exclude the evidence of Dr Day as being ‘out of time’ having regard to section 94(2) of the ‘Animal Protection Act’; and (b) deal with non-publication issues. These issues were dealt with at the hearing of the 8 October 2018 and reasons given for the decisions made on that day (which reasons are available to Mr Cutbush). This point is also made in Mr Cutbush’s first final submissions. However, it is right for me not to disallow Dr Day’s evidence.
(c)On 16 December 2018 Mr Cutbush asked that a minor civil dispute claim in the tribunal which he has brought against the neighbours involved in the incident on 11 September 2017 should be joined to GAR325-17 because it involves the damage to the fence. This is inappropriate and cannot be done under the Rules. This is refused.
(d)At 3.38pm on 8 February 2019 Mr Cutbush applied for GAR325-17 to be heard in private. In so far as this refers to the review of the decision about the dog and not to other matters, this is a repeat of the application which was before me and refused by me on 8 October 2018 for reasons given then. I refuse to deal with this again. In any case there is no public hearing upon which any such direction could impact and it would need to be refused on that basis.
(e)
On 13 February 2019 Mr Cutbush asked for reasons for my decision of
11 February 2019 in GAR325-17 in which I refused his application for an interim order seeking an order for daily family and pet visitation and exercise rights to the dog. The reasons for my decision however, appear in the decision of 11 February 2019 itself. They were stated to be: ‘because the tribunal has no jurisdiction to make the orders requested, on the grounds given by Scenic Rim Regional Council in its submissions of 10 December 2018’. Hence no further reasons need to be given.
(f)On 15 February 2019 Mr Cutbush requested that the review about the decision about the dog be heard before the contempt proceedings to avoid delays. The application for the review the decision about the dog is separate from the contempt proceedings. The timing of one does not, or should not, affect the other. This request is refused.
Other applications made in application for interim order of 22 November 2018
On 22 November 2018 Mr Cutbush made an application for a number of interim orders. Applications 5 and 6 concerned access to the dog and were dealt with by the tribunal separately [item (c) under ‘Applications dealt with since the hearing’ above]. The other applications were reserved to be dealt with by me in this final decision. They were:-
(a)For the Council to serve Mr Cutbush with ‘all QCAT sealed evidence in relation to GAR325-17’. This application is refused because evidence does not have to be sealed as explained under ‘Allegation about not having received any of the evidence’ below.
(b)GAR325-17 hearing on 8 and 9 October 2018 be ‘struck out’ as Mr Cutbush was ‘not served prior to commencement or as at 1000am 22 November 2018’. This seems to be a repeat of (a) and is refused for the same reason.
(c)
‘The Tribunal will recommence a Hearing timeline “on papers” commencing from when the Applicant is served’. This is a repeat of the application of
2 October 2018 in which Mr Cutbush sought an on the papers hearing of his application to review the decision about the dog. This was refused by Member Kanowski on 5 October 2018. The only circumstances which have changed have been that Mr Cutbush did not attend the hearing on 8 October 2018. The difficulties arising from this have been reduced by giving him an opportunity to make final submissions, which he has done. So there is no need for an on the papers hearing. This application is refused.
(d)The on the papers hearing will be expedited as the pet has now been held for over 14 months in close confinement ‘and it will be conducted by a Member not involved in the 8/9 October 2018 Hearing’. In so far as this application seeks an early resolution of this matter the tribunal has done its utmost to achieve that, to the extent consistent with providing Mr Cutbush with procedural fairness bearing in mind he did not attend the 8 October 2018 hearing. There is no need for any order for an expedited hearing. As for the suggestion that a new member of the tribunal should decide this matter who was not involved in the hearing on 8 October 2018, there are no grounds provided in the application. Such an application would be considered on the grounds of actual or perceived bias or some other reason for disqualification, but such grounds do not seem to be alleged. This application is refused.
(e)‘Scenic Rim Regional Council are to pay the legal costs for the Applicant for the preparation of the re-opening Application due to their non-service of evidence’. As referred to in (a) above, this application is misconceived because it is based on an assumption that such evidence should be ‘filed’ in the tribunal and therefore sealed, which is not the case. This application is refused.
(f)QCAT of their own initiative will investigate any contempt action due to the SRRC misleading the Tribunal that the Applicant had in fact been served. This is misconceived for the reason given in (e). This application is refused.
On 12 February 2019 Mr Cutbush made an application for interim orders for the Council:-
(a)to supply an affidavit from a ranger explaining why the ranger has provided ‘no evidence, no affidavit, no file notes and not attending the hearing in October 2018’;
(b)to allow daily access to the dog for exercise and washing;
(c)to advise what measures are being taken to ensure the dog is ‘not tortured any further with heat in his kennel at over 40 degrees’.
As for (a), the tribunal is able to call for adequate statement of reasons or additional documents and things in the possession of a respondent to an application for review,[4] may inform itself in a way it considers appropriate, and must ensure as far as is practicable that all relevant material is disclosed to the tribunal.[5] Having considered the reasons for requesting this order however, I am not convinced it would help at all. The fact is that the ranger concerned could not give any evidence going directly to the issue about the behaviour of the dog – that is given by the lay witnesses from whom I have heard and it is that evidence, together with Mr Cutbush’s own behaviour, which has been crucial in this review.
[4]Section 21 QCAT Act.
[5]Section 28 QCAT Act.
As for (b), I dealt with the same application in my decision on the interim application made on 22 November 2018 just one day before this second interim application was made. I could only hear this application if circumstances had changed. It does not appear any factual circumstances have changed. The legal circumstances have however, changed. Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1 has now been published. In that decision the President sitting with Member Traves explained that if a person is not entitled to make an application for particular relief under the relevant enabling Act the tribunal has no such jurisdiction.[6] The relevant enabling Act does not provide for an application for an order of the type sought by Mr Cutbush in this renewed application for an interim order. The tribunal has no jurisdiction to make an order of the type sought.
[6]Paragraphs [33] and [39].
As for (c), this is of no relevance to the review of the decision about the dog otherwise as a reminder that it is best for the dog for the tribunal to reach a decision as quickly as it can. This application is refused because the tribunal has no jurisdiction to make such an order on the same grounds as for application (b).
Dealing with some points made in Mr Cutbush’s final submissions
On 4 March 2019 Mr Cutbush made his final submissions. These refer back to the points made in the application to reopen filed on 13 November 2018 and also make some additional points. Although not provided for in the final directions order, Mr Cutbush has made some further submissions in an email of 22 March 2019 and yet further submissions on 26 March 2019. I confirm that I have taken those submissions into account.
Some of the points made by Mr Cutbush go to the merits of the decision on review about the dog. Those points are dealt with at a later stage in these reasons when considering that review.
Some of the points made are about procedural matters including whether Mr Cutbush has had a fair hearing, which if valid could affect the way I should deal with this final decision. I ought to deal with those points now.
Allegation about not having received any of the evidence
This was one of the points made by Mr Cutbush in his email of 5 October 2018 and it has since been repeated in numerous emails, applications and submissions.
What happened was that at some point Mr Cutbush discovered that under the QCAT Rules, applications and documents are filed in the tribunal when they are sealed. From that time he has complained that the Council’s evidential material submitted to him had not been sealed. Hence he says, they were not given to him at all.
On 4 December 2018 Mr Cutbush brought contempt proceedings in the tribunal against the Council and its Mayor and against two of the solicitors who had been handling the case for the Council and also the barrister instructed in the review of the decision about the dog.[7] Those proceedings are still current. In those proceedings he claims (amongst other things) that they are in contempt by failing to serve him with the material as ordered by the tribunal and in proceeding to a hearing on
8 October 2018.
[7]These contempt proceedings were also brought against two of the Council’s witnesses who gave evidence in the review of the decision about the dog and against two other lawyers.
The truth of this matter is that none of the evidentiary material in this case needed to be sealed by the tribunal.
The rules governing filing of documents in the tribunal are in Part 4 of the QCAT Rules.[8] It is clear from these rules and from the QCAT Act itself that the act of ‘filing’ is required only for applications and certain other formal documents. Section 33 requires that applications for the tribunal to deal with a matter are ‘filed’. Section 73 requires that objections to a person who has presided over a compulsory conference hearing the matter are filed. Sections 85 and 86 permit the filing of written terms of settlement in the tribunal. Section 143 requires filing of appeals and applications for leave to appeal. There is no provision requiring evidentiary material to be ‘filed’. It is clear from the Rules that filing in the tribunal is a formal act which entails the principal registrar recording the document and stamping it with the tribunal’s seal.[9] Since the principal registrar may refuse to do this on various grounds,[10] it has been held that it requires some consideration and processing of the document which is to be filed, rather than simply receiving it and placing it on the tribunal file.[11]
[8]Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
[9]Rule 31.
[10]As for which, see rule 32 and also section 35 of the Act.
[11]Perryman v The Commissioner of State Revenue [2016] QCAT 26.
In reviews of a reviewable decision like this matter, the decision-maker is required by section 21 of the QCAT Act to provide to the tribunal within a reasonable period of not more than 28 days after being given a copy of the application for the review, a written statement of the reasons for the decision and any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision.[12] Section 21 does not require that material to be ‘filed’ in the registry. Instead, section 21 requires such material to be ‘provided to’ the tribunal. There is nothing in the tribunal rules which requires section 21 material to be given to the applicant for a review, but as a matter of procedural fairness this of course should happen.[13]
[12]Section 21(2).
[13]Rule 35 of the QCAT rules requires copies of filed documents to be given to the other parties but as explained above this does not apply to section 21 documents.
During the currency of proceedings, the tribunal may give directions that evidentiary material should be ‘filed’ in the tribunal and also given to the other parties. Such directions do not use the word ‘filed’ in the formal sense that it is used in the QCAT rules.[14]
[14]That is, in Part 4 of the Rules.
It is clear from the above analysis that evidentiary material does not have to be sealed before it is given to a party.
A matter of concern which appears from the above, and which has some relevance with respect to Mr Cutbush’s credibility, is that Mr Cutbush is willing to state quite forcefully and frequently that he has not been served with the Council’s evidentiary material. Sometimes this is qualified by adding the word ‘sealed’, but often it is not, and when that happens he is claiming that he has not been served with the Council’s material at all.
For example, in his email of 5 October 2018 on the Friday before the hearing where he sought ‘an urgent QCAT President injunction’, he stated that he had not received the evidence which had been filed in the tribunal. In passing however, I note that he did refer to the veterinary reports and the report of Dr Day in the same email.
Mr Cutbush also relied on this point in his application to re-open GAR325-17. He filed an affidavit sworn on 13 November 2018 explaining in some detail the technical difficulties he faced downloading, reading and digesting the material served on him.[15] The application to reopen stated:-
The Applicant has not had proper regard to the Respondent’s evidence, due to the inability to open the electronic link to evidence until just before the matter hearing; the volume of the Respondent’s evidence; and additional evidence being filed.
[15]This affidavit is in the tribunal file RE0016-18.
In an email sent at 9.18pm on 10 December 2018 Mr Cutbush complains of not having been provided with ‘filed applications/documents/evidence’ for (of relevance) the evidence in GAR325-17 including the Cam Day video. He had made a similar point about the evidence in GAR325-17 in an email of 1 December 2018 at 11.51am.
In the submissions of 18 December 2018 made in support of the application to reopen Mr Cutbush claimed:-
No provision of evidence to the Applicant.[16]
I received the Dr Day video for the first time yesterday. No “filed/served evidence” was provided before the Hearing or to date. As at 18 December 2018 I have not been served with the GAR325-17 evidence.[17] This is contempt of QCAT Directions in December 2017.
[16]Page 1 first bullet point.
[17]Page 2 paragraph 1.
It is to be noted however, that in the same document Mr Cutbush refers to the submitted evidence in detail.
Because Mr Cutbush said in his email of 5 October 2018 that he had not received the Council’s evidentiary material, the Council came to the hearing ready to show that he had. At the hearing on 8 October 2018 I was given an affidavit sworn by the solicitor conducting the case for the Council which exhibited recent correspondence between the solicitor and Mr Cutbush in the days leading up to the hearing.[18] Mr Cutbush confirmed in an email of 26 September 2018 that he had been provided with the witness evidence relied on by the Council.[19] In none of his emails in the exhibit did Mr Cutbush complain that he had not been provided with the Council’s material. I was also given a sequence of emails between the Council’s solicitors and Mr Cutbush’s then solicitors which demonstrated that service had been effected.[20]
[18]This was marked Exhibit 5.
[19]Page 18 of the exhibit to that affidavit.
[20]Exhibit 4.
Since after the hearing of 8 October 2018 Mr Cutbush continued to claim non-service, in particular in his application of 13 November 2018 to re-open, on 10 December 2018 the Council’s solicitors made an affidavit dealing specifically with this issue.
This showed that until Mr Cutbush ceased to be legally represented on
28 September 2018 the Council’s solicitors rightly corresponded with his solicitors. The evidence shows that the section 21 of the QCAT Act documents[21] were served in three batches. The first on 15 January 2018 and the second on 21 May 2018 were served by providing an email with a dropbox link. The evidence shows that this was an agreed method of service. This material included the videos attached to Dr Day’s report. The videos were downloaded by Mr Cutbush’s solicitors on 21 May 2018. The remainder of the documents were processed by Mr Cutbush’s solicitors and forwarded to Mr Cutbush in the form they saw fit. There was a third batch of disclosure material from the Council which was served in the same way between
19 July 2018 and 25 July 2018. This contained five further statements of evidence and one from Dr Day exhibiting his report and curriculum vitae. These were acknowledged by Mr Cutbush’s solicitors.
[21]That is to say those documents served pursuant to the Respondent’s obligation to provide any document or thing in the decision maker’s possession or control that may be relevant to the review.
In the evidence, the Council’s solicitors point out that on 19 September 2018 and
20 September 2018 Mr Cutbush himself sent a dropbox links to videos which he wished to serve on the Council. This shows that he was not only content to use dropbox but that he was able technically to use it.
After Mr Cutbush ceased to be legally represented from 28 September 2018, the Council’s solicitors corresponded with him directly by email and Mr Cutbush used email to correspond with them.
Whilst the fact that the Council’s material was served on Mr Cutbush is proved from the solicitor’s evidence alone, it is also shown conclusively in other ways.
Firstly there are several instances where Mr Cutbush has commented on the Council’s evidence in detail. For example in an email of 28 August 2018 Mr Cutbush referred to the affidavits and he commented that they omit certain details.[22]
[22]Page 85 of the exhibit to the solicitor’s affidavit.
On 18 December 2018 Mr Cutbush sent an email to the tribunal with an affidavit made by him and sworn on 21 June 2018 attached to the email. This affidavit was seemingly about alleged breaches of a non-publication order made on 11 May 2018. In the affidavit of 21 June 2018, Mr Cutbush expressly states that he had received material filed by the Council. It was in these terms:-
1. I received advice in relation to the Order on 25 May 2018 from my Lawyer via email as I had been asking for a status update.
2. I received the Order of 11 May 2018 on 28 May 2018 via Australia Post.
3. I received the material filed by the SRRC on the same day from my Lawyer.
4. I did not review the paperwork or CD till 29 or 30 May 2018.
5. On reading the order I ensured no information has been published that was supplied.
6. I did not read the Order as having to backdate redaction.
7. My lawyer advised the restrictions are on the Applicant and Respondent in this matter.
8. I am the sole Applicant in this matter.
9. No material provided by the SRRC to me on 28 May 2018 has been distributed or published by me.
10. The material has not been viewed by any of my witnesses or distributed by them to the best of my knowledge.
11. On or about 28 May 2018 a campaign was commenced for blankets as Bandit has no bedding.
12. The SRRC PO Box 25 was the mailing address and this is on the SRRC website and I do not believe this is a breach of the non-publication order.
13. I have now taken steps to remove any posts or comments that may breach the non-publication order.
It is notable that there is nothing in this affidavit suggesting that some of the material provided by the Council by that date could not in fact be accessed as he has said in his affidavit sworn on 13 November 2018.[23]
[23]Paragraph 16.
Despite sending in this affidavit on 18 December 2018, the very next day Mr Cutbush sent an email saying that the Council had still not filed and served him with the evidence which was required in January 2018.
It is also relevant that although the tribunal made a number of on the papers orders, it also held directions hearings. There were three such hearings before Senior Members of the tribunal. The first was on 29 March 2018. At that hearing Mr Cutbush was represented by his solicitor who attended by telephone, and the Council was represented by counsel in person.
The second was on 21 June 2018. I have listened to the recording of the hearing on that day. Mr Cutbush was represented by his solicitor who appeared on the telephone, and Mr Cutbush was also linked in during the hearing. What Mr Cutbush’s solicitor said was that the Council had served statements of evidence from eight witnesses and the Council had indicated there was more material to come. Counsel for the respondent explained that the statements from the main witnesses had been served and also Dr Day’s report, and the new material was to be from witnesses about the seizure process. There was no dispute about this and there was certainly no suggestion that the material already provided by the Council had not been received or was not accessible.
The third directions hearing was on 16 August 2018. Mr Cutbush was again represented by his solicitor on the telephone and Mr Cutbush was also linked in and participated in the hearing. I have listened to the recording of that hearing. It was said that the parties had served all their material and they were ready to proceed to a hearing. Mr Cutbush’s solicitor explained that Mr Cutbush had some more material to file in relation to a recent house move. There was no suggestion made at the hearing on Mr Cutbush’s behalf or by Mr Cutbush himself that there was any material from the Council that was missing or which was inaccessible.
In his email of 11 March
2019 at 4.56am Mr Cutbush referred to what happened on
8 October 2018. He said:-
And to date I have not been provided with the purported evidence presented at the Hearing which went ahead without us.
This is also likely to be incorrect. He has had access to the audio recording, and may have a transcript,[24] and he has asked for and been given access to the file itself although it appears that despite making an appointment to view the file he has not done so.
[24]A letter of 26 October 2018 from new solicitors instructed by Mr Cutbush suggested that they were obtaining a transcript. An affidavit was lodged at the tribunal by the new solicitors sworn or affirmed by a law clerk on 12 November 2018 saying that they had been instructed by Mr Cutbush on 12 October 2018, that a transcript of the hearing on 8 October 2018 was applied for on 12 November 2018 and that they were ‘required to consider the Respondent’s evidence and transcript of the hearing prior to drafting submissions’. On 19 November 2018 Mr Cutbush asked the tribunal for the number of the hearing room where the matter on 8 October 2018 was heard so that he could ask Auscript for the audio of the proceedings. That was provided to him. Subsequently it can be seen from the tribunal file that he did ask Auscript for the audio of the hearing on 8 October 2018.
It can be seen from the above that there are good reasons to disbelieve Mr Cutbush’s assertions that he had not been served with the Council’s material or with the evidence relied on by the Council at the hearing on 8 October 2018. His contention to that effect is highly mischievous at best and dishonest at worst.
Had Mr Cutbush attended the hearing on 8 October 2018 any gaps in the evidence in his possession or with which he was having difficulty could have been addressed. The issue about non-service was certainly no reason for him not to attend that hearing.
It should also be remembered that the tribunal process on review has not occurred in a vacuum. What was provided to Mr Cutbush by the Council from time to time prior to the application for review of the decision about the dog appears from the formal certificate of the Council’s Chief Executive Officer.[25] In particular the evidence shows that Mr Cutbush was spoken to after each separate incident and asked for his comments about the attack. On 22 September 2017 he was given a ‘Proposed Regulated Dog Declaration Notice’ which explained the law which applied, gave the facts on which the Council was relying and gave an opportunity to Mr Cutbush to make written representations to show why the dangerous dog declaration should not be made. In his response of 12 October 2017 Mr Cutbush claimed that the seizure of the dog had been unlawful, that there was a conflict of interest and bias of the officers concerned, that there was no supporting evidence and that there had been no investigation about the fence. As for the three incidents themselves Mr Cutbush made contentions similar to those he relies on in this application to review the decision about the dog and submitted photographs of the damage to the fence, of the dog and of the dog’s premises in the kennel.
[25]Signed on 23 July 2018.
On 6 November 2017 the Council gave Mr Cutbush a concurrent regulated dog declaration and destruction order and combined information notice for the dog.[26] That also contained a description of the law which applied and the facts relied on by the Council and recited the points made by Mr Cutbush in response and the findings made in respect of those points. The document listed the evidence and other material which the Council had gathered and also included the relevant passages from Dr Day’s report and his recommendations as shown to the tribunal a year later on review. It offered Mr Cutbush an opportunity to seek an internal review. This document was given to Mr Cutbush. He did seek an internal review and submitted witness statements from his own witnesses, as well as a number of documents videos and photographs, and made further submissions.[27]
[26]Page 70 of the exhibit to this certificate.
[27]Pages 86 to 247 of the exhibit to this certificate.
After Mr Cutbush applied for an internal review he was notified of the result of that review. Attached to his email of 6 December 2017 he sent to the tribunal what he then received from the Council. The result of the internal review was dated
6 November 2017 and set out in detail the facts which were relied on by the Council and the Council’s considerations which led it to the view the dog should be seized and destroyed. The internal review listed all the documents relied on from the complainants and witnesses, without identifying the persons concerned, and it listed the documents relied on provided by Mr Cutbush. Although these witnesses were not named they were known to Mr Cutbush because they were his neighbours. Certainly after receiving the section 21 documents he was aware of their names, as is indicated by his email of 26 September 2018 when he applied to attend the hearing by telephone and for the hearing to be conducted ‘on the papers’.
The internal review resulted in a report which was 34 pages long. Mr Cutbush also received this.[28] This set out the law which was relied on by the Council and the facts relied on by the Council and considered with some care the allegations and points made by Mr Cutbush. It also referred to a large amount of correspondence from Mr Cutbush between 10 March 2017 and 25 October 2017 which made various points (which were listed) and also video footage and photographs supplied by Mr Cutbush. The internal review recited the views of Dr Day given on 27 October 2017 having examined the dog, that it was ‘an aggressive and dangerous dog and is very likely to cause further injury’ and containing the recommendations that a year later were put before the tribunal on review.[29] Each point made by Mr Cutbush was carefully dealt with in the internal review. Hence Mr Cutbush not only knew the Council’s case in detail but he also knew from that time what they were saying in answer to his points.
[28]Pages 36 to 69 of the exhibit to this certificate.
[29]Page 44 of the exhibit to this certificate.
Largely the material referred to in the internal review decision is the evidence before me in this review, except I have also received evidence of the formal procedures followed, evidence of what happened at the time of the seizure, and the expert evidence of Dr Day.
Complaint that there was no compulsory conference
In his final submissions of 4 March 2019 Mr Cutbush complains that there was no compulsory conference held by the tribunal. He also complains about this in his email of 30 November 2018 and asks the tribunal to explain why it never happened.
There was however, a compulsory conference. It was held on 2 February 2018. From the member’s notes of that day it can be seen that it was attended by Mr Cutbush’s solicitor on his behalf. On the day of the compulsory conference, the member tried to call Mr Cutbush by telephone but the call went to message bank. An officer attended for the Council, and also a solicitor and counsel.
At the directions hearing on 21 June 2018 Mr Cutbush’s solicitor told the senior member that he had agreed with the Council’s solicitors that there would not be a further compulsory conference. Mr Cutbush was attending that hearing on the telephone so he heard that.
Mr Cutbush has explained why he himself did not attend the compulsory conference in his affidavit of 13 November 2018. His then solicitors advised him not to attend and said it will be a ‘very short and pointless exercise’. In the light of this and what was said at the directions hearing, it is very difficult to understand why Mr Cutbush is asking for an explanation why there was no compulsory conference.
Complaint that there was no experts conclave
By email of 11 December 2018 Mr Cutbush said that he had had notice of expert evidence from three to four vets and he wanted to know on what basis that had been permitted since under the Practice Direction 4 of 2009 only one expert is allowed. He also wanted to know whether an experts conclave as anticipated by the Practice Direction had taken place and if so when he was advised of it. A second email sent nine minutes later, enlarged on this issue. Mr Cutbush said he was not aware that he could have an expert meet with the tribunal member and the Council’s expert. He referred to LSC V Bone [2013] QCAT 550. In that case the tribunal disregarded evidence from a number of experts because there was more than one expert and there had been no experts conclave.
Mr Cutbush stated that he had not had notice of each expert’s name and area of expertise and the issue that each expert would address nor notice of a conclave. He said that he had not been provided with ‘the 8 October 2018 report’. In his submissions to reopen (adopted as his final submissions) he says he wanted to receive the experts joint report developed in a conclave with the member and ‘have the opportunity for my expert to hold the required conference with Dr Cam Day and Member Gordon only as per QCAT Rules’. He also wanted the Council to be limited to one expert.
In his final submission of 4 March 2019 he said that the Council had around five vets so far as this exceeded the amount of experts allowed by QCAT.
Here it is necessary to point out that Mr Cutbush raised the issue of having his own expert examine the dog with the Council prior to the hearing. Mr Cutbush first raised this with the Council well before the hearing, on 31 August 2018.[30] On
11 September 2018 the Council’s solicitors informed him by email that this could be approved for the purpose of producing a report for the tribunal proceedings, conditional upon Mr Cutbush not being present and other reasonable conditions, and a request was made for the identity of the veterinary surgeon so that arrangements could be made. There was no response to this letter.
[30]Page 89 of the exhibit to the Respondent’s solicitor’s affidavit sworn on 10 December 2018.
Since the hearing, Mr Cutbush has raised this again. In his submissions of
18 November 2018 in support of his reopening application he said he wished to present evidence from his own named veterinarian. In his email of 10 December 2018 at 6.14pm he said he was discussing this matter with a particular veterinarian. In his email at 1.04pm on 18 December 2018 he said that he wanted to bring his own expert evidence and cross-examine Dr Day. The Council have said that there continues to be no objection to a visit by Mr Cutbush’s vet for the purpose of a report to the tribunal.[31]
[31]Paragraph 52 of the affidavit of the Respondent’s solicitor sworn on 10 December 2018.
There has however, been no formal application to the tribunal about this. Had such evidence been available I am confident that Mr Cutbush would have applied to the tribunal for leave to introduce it bearing in mind the multitude of other applications he has made. It has now been seven months since the matter was first raised. Clearly it is not being pursued.
As for the Practice Direction, the limit of experts only applies to those called in the proceeding. Expert evidence that appears from the documents disclosed by a decision making body pursuant to section 21 of the QCAT Act is not of that nature. Dr Day’s evidence was different, being presented to assist the tribunal as to the correct and preferable decision in the review, and was expert evidence of the nature contemplated by the Practice Direction. Such evidence was limited to one expert as provided by the Practice Direction. As for the experts conclave, this is only required by the Practice Direction if there are competing experts, which is not the case here.
The reference to the 8 October 2018 report is not understood. If it is to the statement of Dr Day which I accepted in evidence at the hearing on 8 October 2018, then this was received by the tribunal on 19 July 2018 and there is an email on the file showing that the Council’s solicitors sent this to Mr Cutbush by dropbox link on the same day. It was his statement and curriculum vitae and his report of 27 October 2017 following his visit to the dog on the previous day.
Imbalance caused by Mr Cutbush not being represented
A point made by Mr Cutbush in the application to reopen the proceedings (and adopted in the final submissions) is that he was not legally represented at the time of the hearing, and since the Council was represented, he needed this too.
As far back as 14 December 2017 Mr Cutbush applied for leave to be legally represented and this was granted on 3 January 2018.
Mr Cutbush was then legally represented and his solicitor attended the three directions hearings of 29 March 2018, 21 June 2018 and 16 August 2018. Then he indicated in an email of 5 September 2018 that he had changed solicitors. Then on
28 September 2018 he said he was no longer legally represented and he asked the Council’s solicitors to correspond directly with him.[32][32]Pages 31 and 16 respectively of the exhibit to the affidavit in the tribunal’s Exhibit 5.
In other emails he indicated that he could not afford legal representation and this appeared to be the situation at the time of the hearing on 8 October 2018. When one side is legally represented and the other is not, the tribunal does its best to ensure that there is a level playing field and will look to solicitors and counsel to assist in this to the extent that their duties to their own client permits.
This issue cannot affect the merits in the decision in the review about the dog.
No working hearing device
In his final submissions Mr Cutbush says that there was no provision of a hearing device at QCAT and he has complained about this to the Anti-Discrimination Commission and to the Attorney.
This issue cannot affect the merits in the decision in the review about the dog. It did not arise in the hearing of 8 October 2018 because Mr Cutbush did not appear.
Cause of delays in disposing of this review about the dog
Mr Cutbush blames the Council, its representatives and the tribunal for the delays in dealing with the review. He is quick to point out that in the meantime his dog is held by the Council and not at home. He describes the conditions in which the dog is being held in emotive terms.[33] I am not able in this decision to identify the cause of delays prior to the hearing of this review on 8 October 2018. But it is clear to me that all the delays since that date have been the fault of Mr Cutbush and no one else. The fact is that if Mr Cutbush had attended the hearing of this matter, as he was ordered to do by the tribunal, it could have been disposed of very quickly – quite possibly by an oral decision on day two of the hearing, and if not, very soon afterwards.
[33]It should be pointed out that the Council denies that the dog is being held in poor conditions.
Instead what happened was that in order to be fair to Mr Cutbush since he had not attended the hearing, he had to be given time to make final submissions. Inevitably this process took time because provision has to be given for submissions in reply and possibly for Mr Cutbush to reply to those submissions. The first date for final submissions from both sides was 26 October 2018 with replies by 2 November 2018. Mr Cutbush then instructed solicitors who, by letter of 26 October 2018, indicated that they needed more time to file final submissions. On that basis, time for final submissions was enlarged to 16 November 2018 with replies thereafter with a final decision of the tribunal contemplated after 27 November 2018. But Mr Cutbush applied again for an extension of time and the time for his submissions were enlarged to 30 November 2018 with replies thereafter, contemplating a final decision of the tribunal after 11 December 2018. But on 30 November 2018 Mr Cutbush again applied for more time to make final submissions and so a final order was made with an indication that there would be no further extensions of time except in exceptional circumstances. Unfortunately contempt proceedings were running concurrently and in those Mr Cutbush had indicated that he was under some pressure. Accordingly the final date for his submissions was somewhat relaxed, being 4 March 2019 with provision for replies and contemplating the final decision of the tribunal after
25 March 2019.
Findings of fact
From the Council there was evidence from 13 witnesses of fact and one expert witness Dr Day. Of the 13 witnesses of fact, eight gave direct evidence about the incidents involving the dog. Four were Council officers who gave evidence of the investigation into the incidents and the seizure of the dog, and one Council officer gave evidence about the procedures followed and the care and keep of the dog.
From Mr Cutbush I had his affidavit and that of his wife, a note from his daughter, the material submitted with his application for review, his initial submissions to the tribunal and his final submissions. I also had a multitude of emails with attachments which had been sent to the tribunal both before and after the hearing. In the documents provided by the Council, I had submissions and accompanying documents from Mr Cutbush while the Council was considering this matter and in the internal review. His documents included a number of still photographs. They also included videos. These had not been provided to the tribunal in a form which was easily accessible, but they were all provided subsequently by the Council’s solicitors.
Mr Cutbush makes general points about the evidence overall and also makes specific points about each incident.
In general points about the evidence overall he says that none of the non-Council witnesses should be believed. His reasoning is that they have been influenced by the Council officers to tell untruths in their statements and to the tribunal.[34] Why is it said the Council officers would do this? It is, according to Mr Cutbush, a reprisal for various complaints he has made about the Council officers, his taking of legal action and ‘ongoing activism versus fact’. He says he has had an ‘open complaint in relation to dog registration data integrity over a number of years’ and 90 minutes before the dog was seized he had lodged a complaint with the Queensland Crime and Corruption Commission, copied to the Council, in relation to one of the Council’s staff members. Also his wife on 26 October 2017 lodged a formal public interest disclosure to the ombudsman copied to the Council, about the Councils’ officers alleging theft. These details appear in the submissions for the internal review dated 8 November 2017,[35] and also in the submissions of 18 December 2018.[36]
[34]This is the effect of submissions made in the application to re-open which is adopted in Mr Cutbush’s final submissions.
[35]Page 86 of the exhibit to the certificate of the Chief Executive Officer signed on 23 July 2018.
[36]Paragraphs 9, 38 and 39.
Hence, says Mr Cutbush, the incidents were either staged, or didn’t happen at all, or if they did happen, were caused by the victims and not by the dog.
The obvious problem with this is the intricate manipulation of the evidence that it would require by a large number of people. It is most unlikely to be the truth of this matter.
In the same vein Mr Cutbush challenges the partiality of the various Council officers concerned, and also that of the officer who conducted the internal review.
Another general point made by Mr Cutbush in his final submissions I believe, is that his evidence and the evidence of his witnesses should be given greater weight because there was no opportunity for he and his witnesses to give evidence at the hearing and be cross-examined. However, this is not the case. As explained later in these reasons, Mr Cutbush and his wife were given an opportunity to give evidence by telephone and be cross-examined, but this was not taken up. It was Mr Cutbush’s own decision not to attend the hearing and to offer his witnesses for cross-examination. There is no room therefore to say that in some way this strengthens his case.
I deal with the specific points made by Mr Cutbush with respect to each incident when considering the incidents themselves. My findings of fact are as follows.
At the time of the incidents Bandit, a red cattle dog, and Nitro, a blue cattle dog, lived at number 2 on the road in question with the Cutbush family. Paul Cutbush was the registered owner of the dogs.
The road concerned is a cul-de-sac. To the left of number 2 viewed from the road is number 1 which is at the end of the cul-de-sac. To the right of number 2 viewed from the road is number 4-6. There is a gate in the fence outside number 2 and boundary fences between number 2 and numbers 1 and 4-6.
First incident – 10 March 2017
A male and a female jogger were running down the road at about 5.30pm on
10 March 2017. When they got to the end of the road, they noticed Nitro barking at them from number 2. They turned to run back up the road. As they turned back, Nitro came out from number 2 into the road having gone through a gap near the gate hinge and ran at them growling and barking and being aggressive. The joggers made loud noises and scared the dog off and back into the property. Then after the joggers continued to run up the road, Bandit came out into the road from under one of the Colorbond fences facing the road having got out of number 2. Bandit was very aggressive and ran from side to side of the joggers and jumped at them growling, barking, lunging and nipping at them. The joggers both yelled to Bandit to go back but then it ran at the female jogger and bit her on the lower left leg. Even after this, Bandit did not give up and still went for them.
At that point people from number 4-6 came out to assist and forced Bandit back towards number 2, one with a broomstick with a nail on the end and one with a garden fork.
Then Mr Cutbush came out of number 2 and took Bandit back into number 2. The male jogger and one of the males from number 4-6 then confronted Mr Cutbush about the incident but Mr Cutbush asked the male jogger ‘Who the fuck are you? Get away from my gate’. When the male jogger said that he was the husband of the woman who had just been bitten by his dog, Mr Cutbush said ‘What are you doing up here’. When the male jogger explained that they were out running, Mr Cutbush said ‘Well what the fuck are you running up here for’.
Mr Cutbush then accused someone of opening the gate.
The female jogger suffered a 1-2cm wound and abrasions to the leg. The neighbours who came out to assist gave her first aid. An ambulance was called and she was given assistance. She was driven to hospital where the wound was cleaned and dressed, and she was given a tetanus injection.
Mr Cutbush’s version of events is quite different from my findings. His evidence is in his affidavit and that of his wife, and a note from their daughter. His case is that they saw someone open the gate and let the dog out. They say that this was all part of general taunting by the neighbours of the dogs, which included rattling the gate and opening the gate to let the dogs out. This was because they found the barking from the dogs a nuisance.
The difficulty with the evidence that Mr Cutbush and his family saw someone open the gate and let out the dog is they were alerted to the incident by the shouting and then saw Bandit in the road, so they would not have been able to see anyone open the gate for Bandit to get out.
Mr Cutbush claims to have audio and video recordings to support the allegation that the neighbours opened the gate. I have listened to all the audio recordings and viewed the videos and there is nothing in the recordings to support what Mr Cutbush says. In fact, in three of the recordings which are alleged to show the neighbours opening the gate, Mr Cutbush adds commentary that his gate was opened by the neighbours but neither the act of opening the gate, nor an open gate appears on these videos.[37]
[37]Videos ‘100318gateopne2IMG_0626.3gp’, ‘IMG_2869.m4v’ and ‘IMG_2870 2.m4v’.
The joggers’ evidence is much better. They both attended the hearing and gave evidence. They had the gate under observation all the time because Nitro had got through it and then retreated back through it. They saw it closed, and saw no one near it. The evidence from the joggers was consistent and there was no reason to disbelieve them. They were passers-by and had no previous connection with Mr Cutbush.
Three people from number 4-6 also gave evidence about this incident on the telephone. None of them saw the gate open.
I also believe the evidence from the joggers that after the female jogger had been bitten, Mr Cutbush was abusive and swore at them. I accept this because the evidence about this was consistent and I could see and hear from the recordings that Mr Cutbush submitted to the tribunal that he is quite capable of such behaviour and language. This differs from Mr Cutbush’s contention in final submissions that the female jogger claimed to have a conversation with him which was impossible.
The above indicates more than a misunderstanding of the tribunal’s processes. It is a disrespect for those processes. On several occasions Mr Cutbush has not accepted decisions made by the tribunal, and simply sought to achieve the required result by a different route.
This also happened on 8 February 2019, after Mr Cutbush had appeared before the President at a directions hearing for the contempt matters. He had applied for that hearing to be in private, and this was dealt with by the President and refused with reasons. Instead of accepting this, Mr Cutbush later that day applied again on Form 40 for all proceedings in GAR325-17 to be heard in private. Although this was a slightly different application because it was for all proceedings instead of just the directions hearing to be heard in private, it was obvious that the President’s reasoning in rejecting one also applied to the other. In any case it was the same application that was before me on 8 October 2018 and refused by me on that day.
Again, when on 11 February 2019 the tribunal refused Mr Cutbush’s application for a tribunal order that he may visit the dog, the very next day Mr Cutbush applied for this again, on no new grounds.
Overall the above difficulties (a) to (e) far outweigh the good faith shown by Mr Cutbush in establishing the enclosure.
It is clear that despite the three incidents and the expert evidence of Dr Day, Mr Cutbush simply does not accept that the dog is dangerous and needs to be handled as such. The strong likelihood, having regard to his persistence on that issue, is that he will continue to hold that view.
It is also clear that Mr Cutbush has no appreciation or understanding of the fear and vulnerability of members of the public who encounter the dog. Therefore he is unlikely to be careful to protect them from the dog.
It is also clear that Mr Cutbush’s priority is to continue his campaigns against those who have participated in the action taken against the dog. His priority is not public safety.
The persistence and repetition of his communications with the tribunal demonstrates a lack of control over his own actions to the point of irresponsibility. In the circumstances, Mr Cutbush is unlikely to comply with the requirements for keeping a dangerous dog. He is also likely to challenge those who will need to check that he is complying with the safeguards for dangerous dogs, making it difficult to enforce those requirements. He cannot be relied upon to keep the public safe from the dog.
Conclusion in the application for a review of the decision about the dog
In the circumstances, balancing the extent of the danger posed by the dog which is high, and the likelihood of the enclosure and other requirements of the dangerous dog provisions being observed by the dog’s keeper or owner in the future being very low, I have no choice but to confirm the decision made by the Council in the internal review on 27 November 2017 to confirm the concurrent regulated dog declaration and destruction order and combined information notice made on 6 November 2017.
Stay
It seems very likely that Mr Cutbush will wish to appeal this order so I shall stay its operation until 28 days from the date of the final decision. Mr Cutbush should bear in mind that this stay will not automatically continue if he lodges an appeal. If he wishes to apply for the stay to continue pending a final decision in an appeal, he will need to make a stay application giving the Appeal Tribunal sufficient time to deal with it before the current stay expires.
By section 189(2) of the AM Act such a stay must be on the condition that the requirements of Schedule 1 section 3 are complied with (muzzling and effective control in place that is not a relevant place).
Non-publication order
I am continuing the non-publication order for three years from today’s date. The order was made to protect the Council’s witnesses. It seems to me that having regard to the attitude of Mr Cutbush to the events described above that protection is required after this decision as much as it was required before the decision.
Non-publication orders of this type ought not to have permanent effect. I am giving it a time limit longer than I would normally do because the approach to this litigation by Mr Cutbush leaves me with no confidence that this decision will end the current litigation.
As pointed out by Member Kanowski in Cutbush v Scenic Rim Regional Council (No.2) [2018] QCAT 315, [8], the non-publication order was alterable and it remains alterable if it becomes inappropriate or needs to be amended or extended.
Mr Cutbush refers to his plan to do this in paragraph 178 of his affidavit of 5 July 2018. In an email of 2 October 2018 sent at 1.38pm (page 73 to the exhibit of his affidavit of 13 November 2018) he says it is being delivered and installed ‘this Saturday’, meaning 6 October 2018. At the hearing on
8 October 2018 I was given a photograph of the enclosure (this was marked Exhibit 7). It had been attached to his email of 7.28am on 8 October 2018. Mr Cutbush confirms in his emails that it was erected in ‘the middle of a fully fenced 2 acre block, not attached to our house or our pool area’. He describes it as a purpose-built enclosure, fully welded and with a covered area, 4760 long x 2350 wide and 1810 high, with spring loaded self-latching door and deadbolt.
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