Cutbush v Scenic Rim Regional Council (No. 3) [2018] QCAT 350

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cutbush v Scenic Rim Regional Council (No. 3) [2018] QCAT 350 PARTIES: PAUL CUTBUSH (applicant) v SCENIC RIM REGIONAL COUNCIL (respondent) APPLICATION NO/S: GAR325-17 MATTER TYPE: General administrative review matters DELIVERED ON: Date of directions: 5 October 2018 Reasons delivered: 22 October 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kanowski ORDERS: 1. The hearing listed for 8 and 9 October 2018 is confirmed. 2. The applications made in the email [received from Paul Cutbush at 3.40 pm on 5 October 2018] will be considered by the member conducting the hearing, Member Gordon, at the commencement of the hearing. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether injunction should be issued – whether hearing should be adjourned Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 57(1)(c), s 59 REPRESENTATION: Applicant: Self-represented Respondent: J Dillon, instructed by King & Company Solicitors APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). -- 1 of 5 -- 2 REASONS FOR DECISION Introduction [1] On 8 October 2018 Mr Cutbush requested written reasons for ‘DECISION RE INJUNCTION APPLICATION’ of 5 October 2018. Identification of the decision in question [2] It is firstly necessary for me to identify the decision or decisions for which reasons are sought. [3] On Friday 5 October 2018 I issued two sets of directions in relation to Mr Cutbush’s case. Mr Cutbush’s case is an application to review a decision of the Scenic Rim Regional Council to declare a dog dangerous and to destroy it. I understand that the dog is registered in Mr Cutbush’s name, but it is said to belong to a child of Mr Cutbush. [4] The application to review a decision was listed for a two day hearing to commence on Monday 8 October 2018. A notice of hearing had been issued to the parties on 23 August 2018. [5] The first set of directions that I issued on 5 October 2018 contained nine directions. It included a direction to the effect that the application by Mr Cutbush for the hearing scheduled for 8 and 9 October 2018 to be postponed was refused. QCAT registry records indicate that this first set of directions was emailed to the parties at 11.43 am on 5 October 2018. [6] The QCAT registry received a lengthy email from Mr Cutbush at approximately 3.40 pm on 5 October 2018 seeking, amongst other things: An urgent QCAT President injunction is requested by 5:00pm today Friday 5 October 2018 to adjourn the Hearing of 8/9 October 2018 until I have legal representation and have the Scenic Rim Regional Council desist from contempt, conduct causing disadvantage, non-compliance with QCAT Rules and to also address the following: … [7] The email went on to list a large number of matters. In brief summary, these matters included: (a) a request that QCAT prevent the Council from distributing further ‘irrelevant and inadmissible material’; (b) complaints about the conduct of the Council in the proceeding including alleged failures to serve material; (c) a request that Mr Cutbush be allowed to have a fresh hearing not influenced by the ‘inadmissible material’ filed by the Council; (d) a request that a hearing on 8 and 9 October 2018 should be prevented when Mr Cutbush’s ‘key witness is not available due to decompensation’; and (e) a submission that QCAT would be breaching the objects of its governing legislation by allowing the hearing to proceed, with the Council represented by -- 2 of 5 -- 3 a barrister and calling 14 witnesses, while Mr Cutbush ‘is currently seeking a new Barrister and has found one’. [8] The email went on to discuss Mr Cutbush’s dissatisfaction with the Council’s decision about the dog, its conduct in the proceeding, and so on. Mr Cutbush said that I had erred in the directions that I had issued earlier that day, and that I should recuse myself. Mr Cutbush said that QCAT should direct the Council to have a particular officer attend as a witness. [9] The above is not a complete list of Mr Cutbush’s complaints and requests, but it is sufficient to show the general nature of the application. [10] In response to that email, I issued the second set of directions of 5 October 2018. There were to the effect that the hearing listed on 8 and 9 October 2018 was confirmed, and that the applications made in the email would be considered by the member conducting the hearing, Member Gordon, at the commencement of the hearing. [11] As the ‘injunction application’ was made in the email received at approximately 3.40 pm on 5 October 2018, I infer that Mr Cutbush’s request for reasons relates to the decision to issue the second set of directions. Reasons for issuing the second set of directions [12] QCAT’s power to issue an injunction is not confined to the President.1 Mr Cutbush did not have a right to insist that the President decide the application. I considered that I should deal with it as the member responsible for dealing with interlocutory applications in administrative review matters. I considered it desirable to issue directions so that the parties were not left wondering over the weekend whether the hearing was to proceed. There was no time to invite submissions from the Council. [13] One of Mr Cutbush’s requests was that I recuse myself from the case. It is apparent that he thought that I was the member listed to hear the matter on 8 and 9 October 2018, but in fact that was never the case. It was therefore not necessary for me to consider whether I should recuse myself from the substantive hearing. [14] I considered that most of the matters raised by Mr Cutbush in his injunction application would be most appropriately dealt with by Member Gordon, the member who was to hear the matter on 8 and 9 October 2018, at the hearing. These included issues about whether certain evidence should be excluded, and whether interim orders about the welfare of the dog could and should be made if the decision was to be reserved. Member Gordon would have the benefit of oral submissions from the parties and a better appreciation of the merits of the case after hearing oral evidence. [15] The only aspect of Mr Cutbush’s injunction application that I considered warranted an immediate decision was his request, in substance, that the hearing listed for 8 and 9 October 2018 should be adjourned. If an adjournment was warranted, the appropriate decision, in my view, would not have been an injunction but, rather, a direction that the hearing was adjourned.2 1 QCAT Act, s 59. 2 Ibid s 57(1)(c), s 62 (1). -- 3 of 5 -- 4 [16] As discussed above, I had already refused an adjournment application by Mr Cutbush earlier on 5 October 2018. That application had been made by way of an application to extend or shorten a time limit or for wavier of compliance with procedural requirement form filed on 27 September 2018. In that application Mr Cutbush had sought a six month postponement of the hearing so that the dog could be assessed by a ‘vet or behavioural specialist appointed by the owner with no interference or briefings by the [Council]’. I note that the Council had provided a report from an animal behavioural expert, and it can be inferred that Mr Cutbush takes issue with that expert’s opinion. Mr Cutbush added in his application that the dog had been held ‘in a 1.2m cell at the Beaudesert Pound with no sunlight, no visitation, no sanitation, no vet care for 12 months 14 days’. [17] Whether or not Mr Cutbush’s description of the conditions is accurate, it is undoubtedly the case that the dog has been held by the Council for an extended period pending the outcome of the review proceeding. I note that Mr Cutbush’s application to review a decision had been filed in QCAT in November 2017. [18] In his email of the afternoon of 5 October 2018, Mr Cutbush included additional grounds for seeking an adjournment of the upcoming hearing. There were two grounds which were of significance, in my view. One was that a ‘key witness’ was not available. From information on the file, I infer that the witness in question is the child who is said to be the owner of the dog. In the first set of directions issued on 5 October 2018 I had given leave for the child to give evidence by telephone, if permitted to give evidence. (The Council had foreshadowed a potential objection to the child being permitted to give evidence). [19] The other ground for an adjournment was that Mr Cutbush was arranging new legal representation but the lawyer would not be able to represent him on 8 and 9 October 2018. I note that the parties had earlier, in January 2018, been granted leave to be legally represented in the proceeding. There are references in the file to Mr Cutbush having had lawyers acting earlier in the proceeding, but he then became self- represented. [20] The power to adjourn a proceeding is a discretionary one. Deciding whether to adjourn involves balancing the statutory objectives for QCAT to be fair, just, economical, informal and quick.3 It will often be relevant to take into account other statutory requirements, such as the requirement for QCAT to take reasonable steps to ensure that each party understands the practices and procedures of QCAT.4 [21] In the present case, several factors weighed against granting an adjournment. The proceeding had been on foot for quite some time. On 23 August 2018 QCAT issued notices to the parties of the hearing to be held on 8 and 9 October 2018. The Council had prepared its case and arranged for a large number of witnesses to testify. The dog had been held for a long time in restricted conditions, pending the resolution of the matter. QCAT had allocated hearing time and resources including a member to hear the matter. [22] On the other hand, Mr Cutbush said he was arranging new legal representation. However, there had been considerable time for the parties to arrange legal 3 Ibid s 3(b). 4 Ibid s 29. -- 4 of 5 -- 5 representation. It was clear from Mr Cutbush’s email, and other interlocutory applications that he had lodged, that he is a literate person with a reasonable capacity to represent himself. [23] Similarly, the proposal to obtain further evidence was also a late one. [24] So far as evidence from the child is concerned, Member Gordon would be best placed to decide, in the course of the hearing, whether the evidence was relevant and important, and whether it could be obtained from Mr Cutbush or his wife if the child was not able to give it. If Member Gordon formed the view that evidence from the child would be admissible and essential, he could have part-heard the matter and arranged to resume the hearing at a later time. [25] Similarly, if Member Gordon was persuaded by Mr Cutbush that another Council officer should be required to give evidence, that could have been accommodated by way of a resumed hearing. [26] It would have been wasteful of Tribunal resources, costly to the Council, and inconvenient to a large number of witnesses, if the hearing had been postponed. [27] Considerations of fairness and justice to Mr Cutbush in having extra time to present the strongest possible case had to be weighed against considerations of fairness to the Council. Further, the statutory objectives of economy and speed did not favour an adjournment. A speedy resolution for the sake of the dog was also a relevant factor. Adjourning the matter would have further delayed a proceeding that had already taken quite some time. When weighing up the competing considerations, the factors against granting an adjournment strongly outweighed the opposing factors, in my view. Conclusion [28] The appropriate course was to confirm that the hearing would not be adjourned, and to leave the other matters raised in the injunction application for consideration by Member Gordon. -- 5 of 5 --