Cutbush v Scenic Rim Regional Council (No 2) [2019] QCATA 167

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Cutbush v Scenic Rim Regional Council (No. 2) [2019] QCATA 167 PAUL CUTBUSH (applicant\appellant) v THE SCENIC RIM REGIONAL COUNCIL (respondent) APPLICATION NO/S: APL105-19 ORIGINATING APPLICATION NO/S: GAR325-17 MATTER TYPE: Appeals DELIVERED ON: 13 December 2019 HEARING DATE: 31 October 2019 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson Member Richard Oliver ORDERS: The application for leave to appeal is refused. The application is dismissed. The destruction order is stayed for 28 days from the date of this decision. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – dog destruction order – where tribunal upheld the respondents dangerous dog declaration and destruction order – where the applicant seeks to appeal destruction order – whether leave to appeal should be granted Animal Management (Cats and Dogs) Act 2008 (Qld), s 127, s 127A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 142 Cutbush v Scenic Rim Regional Council [2019] QCAT 80 Cutbush v Scenic Rim Regional Council [2019] QCATA (unreported, Queensland Civil and Administrative Tribunal – Appeal Tribunal, 30 August 2019) House v R (1936) 55 CLR 499 -- 1 of 7 -- 2 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Lovell v Lovell (1950) 81 CLR 513 Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121 Reeve v Hamlyn [2015] QCATA 133 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Terera & Anor v Clifford [2017] QCA 181 Thomas v Ipswich City Council [2015] QCATA 97 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: J Dillon of counsel, instructed by King & Co REASONS FOR DECISION Mr Cutbush is the owner of a dog known as Bandit. Bandit was involved in a number of attacks on persons who were at or near Mr Cutbush’s residence on 10 March 2017, 18 July 2017 and 11 September 2017. As a result of those three attacks the Scenic Rim Regional Council (‘the Council’), initially issued a menacing dog declaration but then upgraded it to a dangerous dog declaration with a destruction order under s 127A of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the AM Act’). On 27 November 2017, after inviting submissions from Mr Cutbush and conducting an internal review, the Council confirmed the initial dangerous dog declaration and destruction order made by the Council on 6 November 2017. Mr Cutbush sought a review of that decision in the Tribunal. Ultimately the matter was listed for hearing over two days, commencing on 8 October 2018. Prior to the hearing, Mr Cutbush filed a number of interlocutory applications, including an application that the hearing be adjourned and an application that he be permitted to attend the hearing by telephone. Both of those applications were dismissed. Mr Cutbush decided not to attend the hearing or to make available his witnesses, including himself and Mrs Cutbush, for cross-examination. At the hearing conducted on 8 October 2018, account was taken of Mr Cutbush’s written evidence and submissions. On 28 March 2019, the tribunal delivered its decision,1 confirming the Council’s decision that Bandit should be destroyed. On 1 May 2019, Mr Cutbush filed an application for leave to appeal or appeal (‘the Application’) pursuant to s 142 of the Queensland Civil and Administrative Tribunal Act (‘the QCAT Act’). Even though the Application was filed late, the tribunal granted an extension of time,2 and on 31 October 2019 the Application was heard with all parties in attendance. Although, initially, Mr Cutbush sought to appeal both the dangerous dog declaration and the destruction order, during the course of the hearing he abandoned the appeal 1 Cutbush v Scenic Rim Regional Council [2019] QCAT 80. 2 Cutbush v Scenic Rim Regional Council [2019] QCATA (unreported, Queensland Civil and Administrative Tribunal – Appeal Tribunal, 30 August 2019). -- 2 of 7 -- 3 against the dangerous dog declaration. Accordingly, the only issue in this appeal is whether Mr Cutbush has identified any error in the decision of the learned Member at first instance which would warrant interference with his decision to confirm the destruction order. The Application itself does not specifically identify the grounds of appeal against the destruction order, but rather Mr Cutbush supported his Application with extensive submissions (and evidence) going to both the issue of the dangerous dog declaration and the destruction order. It is difficult to disentangle the submissions and identify grounds of appeal that raise questions of law, questions of fact or questions of mixed law and fact. In addition, the submissions are prolix and incorporate material that is evidentiary in nature. Rather than focusing on specific identifiable errors attributable to the learned Member’s decision, it contains opinions and is argumentative. There is also personal criticism of the learned Member. In addition, Mr Cutbush made application to lead fresh evidence. However, he had difficulty in identifying with any specificity the fresh evidence he wished to lead in the appeal. It transpired that there was no fresh evidence, particularly once he abandoned the appeal against the dangerous dog declaration. Accordingly, it was not necessary to make a determination on that issue. While there is a right of appeal on a question of law, by s 142(3)(b) of the QCAT Act leave to appeal is required where the appeal raises a question of fact or a question of mixed law and fact. In relation to the granting of leave, in Terera & Anor v Clifford it was stated that the issues to be considered are whether:3 (a) an appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected; and (c) on the question of whether leave to appeal might be given, the court usually makes some preliminary assessment of the prospects of the proposed appeal. The appeal tribunal will not readily interfere with findings of fact of the tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.4 Ultimately, it was the learned Member’s findings of fact about Bandit’s involvement in the incidents, referred to above, and the acceptance of the opinion of an animal behaviour expert, Dr Day, that led the Tribunal to uphold the Council’s decision to destroy the dog. Accepting that Bandit is now a regulated dog under the AM Act, it is inherent in that declaration that the dog engaged in the behaviour as found by the learned Member and referred to in his reasons.5 For clarity, the first incident involved Bandit running at two joggers and biting the female jogger on her left lower leg. That resulted in a 1- 2cm wound to her leg as well as abrasions. She was treated at hospital, where the wound was cleaned and dressed. The second incident involved Bandit biting a person delivering a letter to a neighbour. Bandit bit him on the left lower leg, requiring him 3 [2017] QCA 181. 4 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]; followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104. 5 Cutbush v Scenic Rim Regional Council [2019] QCAT 80, [100], [109], [121]. -- 3 of 7 -- 4 to take protective measures. He was later seen by a doctor. The wounds were dressed and he was given antibiotics. The third incident involved a neighbour who was attacked by Bandit. Not only was he bitten on the foot, Bandit also jumped onto his chest and knocked him to the ground. He also received medical treatment to his left ankle and foot. Although Mr Cutbush gave an explanation for each of these incidents, contrary to the versions given by the victims, the learned Member accepted unreservedly the victims’ versions. That, of course, weighed heavily in his consideration as to whether to confirm the destruction order. In addition to that evidence, the Council called expert evidence from Dr Cam Day, who was described as an experienced veterinarian with 36 years of experience in the behaviour management of dogs and cats.6 He visited the Council facilities on 26 October 2017 to make an assessment of Bandit’s behaviour. He concluded that Bandit showed significant aggression, would not retreat when expected, and his behaviour was characterised by ‘lunging, barking, showing teeth and growling’.7 The learned Member referred to and accepted the following evidence of Dr Day:8 Bandit was unique in that he failed every test conducted. The response to the tug-toy is the most worrisome as it shows his ability to ‘lock on’ to an object and not let go. His predatory aggression for this test was profound. But (what) makes that test more worrisome is his switch from tug-toy to my free hand when it was offered. It is concerning that during most of the tests, he seemed to look for every possible opportunity to bite my hands when they were close to the cage. In his written submissions, Mr Cutbush challenges Dr Day’s expertise and contends that he was denied natural justice because he did not have an opportunity, firstly, to cross-examine Dr Day and, secondly, to have his own expert provide evidence to the Tribunal. Mr Cutbush’s complaint as to opportunity lacks merit. Had he attended the hearing on 8 October 2018, he would have had the opportunity to cross-examine Dr Day. Further, in respect of the second contention, he did have the opportunity to have an independent expert provide a report to the tribunal. In an email from the Council’s solicitors of 11 September 2018, an offer was made for him to attend Council premises. Mr Cutbush did not avail himself of that opportunity. In our view, Mr Cutbush had every opportunity to challenge the Council’s assessment of Bandit’s behaviour and test the evidence of Dr Day at the tribunal hearing. With regard to Dr Day’s evidence, the learned Member stated:9 In his final submissions Mr Cutbush challenges Dr Day’s evidence in various ways including why the dog was kept, and whether he was sufficiently qualified and independent to express the opinion that he did. At the hearing Dr Day was asked about the effect of confinement of a dog but opined that it was not the cause of the dog’s aggressive behaviour – it just means that the dog’s behaviour 6 Ibid, [123]. 7 Ibid, [124]. 8 Ibid, [126], [131]. 9 Ibid, [131]. -- 4 of 7 -- 5 would not have had a chance to improve. I am satisfied that Dr Day was sufficiently qualified and independent to give the opinion which he expressed. Bearing in mind the appeal tribunal’s function when there are challenges to findings of fact, it simply could not be contended that there are interconvertible facts or uncontested testimony which would call for different conclusion with respect not only to Dr Day’s evidence, but also the evidence of the individuals who were attacked by Bandit. Mr Cutbush’s submissions, both written and oral, did not point to any evidence which would lead to such an outcome. Mr Cutbush summarised his contentions at page 35 of his submissions. It is immediately evident from the points made that there was a lack of preparedness to accept findings that, though open on the evidence, did not accord with Mr Cutbush’s view of the events, including as to whether persons were attacked or whether fear was caused to any person. The submissions also addressed other matters irrelevant to this proceeding, including that there was a change to a neighbour’s residential address; that Mr Cutbush had moved house because of Bandit and public safety and the effect that had on him; and that the Tribunal failed/refused to include or join with the review application a separate dividing fence proceeding involving his neighbours. He also stated that Bandit had been confined for a month by the time of Dr Day’s inspection. Reference is made to that issue at [14], above. Mr Cutbush also states that he was not given an opportunity to comply with the dangerous dog declaration, the terms of which are quite strict and involve having special facilities made for the dog to ensure public safety, before the destruction order was made. However, it is clear that by the time the dangerous dog declaration was made, Bandit had seriously attacked and injured three people in the neighbourhood. In any event, the learned Member did take into account the fact that Mr Cutbush did not have an opportunity to comply with the requirements of the dangerous dog declaration. However, he also took into account the necessary confidence that a dog owner would comply with the requirements of keeping a dangerous dog and balanced that against the objects of the AM Act.10 The learned Member considered previous cases in the Tribunal, including Thomas v Ipswich City Council,11 and Nguyen v Gold Coast City Council Animal Management.12 In Nguyen, the Tribunal said: [31] The essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog. [32] Determining whether a dog can be controlled will require a consideration by a decision-maker of a range of matters which might include: (a) the relevant history of the behaviour of the dog giving rise to the consideration of the making of a destruction order; (b) any other relevant history of the behaviour of the dog, including the circumstances giving rise to the declaration that the dog was a regulated dog; 10 Ibid, [184]. 11 [2015] QCATA 97. 12 [2017] QCATA 121. -- 5 of 7 -- 6 (c) the current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training; (d) the arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, post a threat of harm to such persons; (e) the risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog; (f) compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog; (g) whether the owner of the dog demonstrates insight into and understanding of the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals; (h) the rights of individuals including the owner of the dog. [33] The decision-maker must also take into account the purposes of the Act generally, the purpose of Chapter 4 specifically and how the Act states those purposes are to be achieved. As the appeal tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act in which the protection of the community is clearly given a higher priority than the individual rights of dog owners. It was appropriate for the learned Member to take those matters into consideration. In addition to those factors, he also took into account the likelihood of Mr Cutbush complying with a dangerous dog declaration. It is evident from the Tribunal’s reasons, and from Mr Cutbush’s conduct throughout the matter as set out in the learned Member’s reasons, that it was not inappropriate to take that conduct into account. The learned Member expressed his concerns as follows:13 My concern here is that Mr Cutbush:- (a) continues unreasonably to deny his own or the dog’s contribution to the events which occurred; (b) has little insight or appreciation of the danger posed by the dogs; (c) displayed little or no sympathy for those who were attacked by the dog and continues to claim they are lying; (d) seems to have strongly held disrespect for those who make decisions about dog laws, and those who enforce those laws, and the Tribunal;14 and (e) seems to have little control over his reactions to events to the point of irresponsibility. 13 Cutbush v Scenic Rim Regional Council [2019] QCAT 80, [192]. 14 As to the lack of respect for the Tribunal, see Cutbush v Scenic Rim Regional Council [2019] QCAT 80, [207]. -- 6 of 7 -- 7 The Tribunal’s decision at first instance required the exercise of a discretion.15 The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.16 It is not a question of whether the Appeal Tribunal might have exercised the discretion differently. It must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.17 The reasons of the learned Member were lengthy and appropriately addressed the issues raised. The submissions made by Mr Cutbush in the appeal do not address any relevant error of law or fact which could be said to have infected the tribunal’s decision. We are unable to identify any error or basis upon which the decision at first instance should be set aside. The application for leave to appeal is refused. The Application is dismissed. In the event that Mr Cutbush wishes to lodge a further appeal, the destruction order is stayed for 28 days from the date of this decision. 15 Animal Management (Cats and Dogs) Act 2008 (Qld), s 127. 16 House v R (1936) 55 CLR 499, 504. 17 Lovell v Lovell (1950) 81 CLR 513. -- 7 of 7 --