Cutbush v Scenic Rim Regional Council (No 2) [2018] QCAT 315

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cutbush v Scenic Rim Regional Council (No. 2) [2018] QCAT 315 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 order 10 September 2018 Reasons delivered 18 September 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The parties are excused from compliance with direction 4 made by the Tribunal on 11 May 2018, to the extent necessary for the parties to engage in and progress District Court proceedings D26/17 in the Beenleigh registry. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where order was made until further order or other order preventing the publication of evidence – whether a new order should be made to allow use of the evidence in a court proceeding Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62(1), s 66(1) REPRESENTATION: Applicant: Self-represented Respondent: J Dillon, instructed by King and Company 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 4 -- 2 REASONS FOR DECISION Introduction [1] This decision relates to an application for miscellaneous matters filed by the Scenic Rim Regional Council, in the course of an administrative review proceeding brought by Mr Cutbush against the Council. [2] The administrative review proceeding relates to decisions by the Council to declare Mr Cutbush’s dog dangerous and to destroy it. The matter is listed for hearing on 8 and 9 October 2018. [3] On 11 May 2018 Member Deane made ‘directions’ in response to an earlier application for miscellaneous matters filed by the Council. One of these directions, direction 4, was that: Until further order or other order, pending final determination of these proceedings the Tribunal prohibits the publication, save as is necessary for the parties to engage in and progress these proceedings, of … all documents in the Scenic Rim Regional Council’s possession or control that may be relevant to the Tribunal’s review … [4] The direction was also expressed to apply to statements of evidence, things in the possession of the Council, evidence given before QCAT, and so on. [5] The directions were given after a hearing on-the-papers. QCAT’s power to give directions comes from section 62(1) of the QCAT Act. QCAT’s power to make a non- publication order comes from section 66(1) of the QCAT Act. Accordingly, in my view, the ‘directions’ of 11 May 2018 should have been described as ‘orders’ (as they were in Member Deane’s written reasons) rather than as ‘directions’ as they were in the signed decision. However, nothing of real significance turns on which word is used. Application for miscellaneous matters filed on 23 August 2018 [6] On 23 August 2018 the Council filed the application for miscellaneous matters that I have decided: an application seeking a direction that the parties be excused from compliance with direction 4 made on 11 May 2018 to the extent necessary for them to engage in and progress District Court proceeding D26/17 in the Beenleigh Registry. The Council explained that the District Court proceeding is one brought by Mr Cutbush against the Council alleging unlawful impoundment of the dog, unlawful access to his property, and intimidation of Mr Cutbush and his family by impounding the dog. The Council said that it is in the process of seeking orders from the District Court for the setting aside of parts of Mr Cutbush’s claim. The Council said that this will necessarily involve exhibiting material that is relevant to QCAT’s review. The Council argued that direction 4 made on 11 May 2018 ‘may inadvertently prevent the parties from relying on material as part of that process, and in the hearing of the action generally’. [7] In written submissions dated 30 August 2018, Mr Cutbush characterised the District Court proceeding as an ‘animal cruelty and mental health’ claim. He opposed the direction sought by the Council in its application for miscellaneous matters filed on 23 August 2018. The arguments advanced by Mr Cutbush include, in summary: -- 2 of 4 -- 3 (a) the appropriate course for the Council would have been to appeal Member Deane’s directions rather than to seek a direction varying the relevant 11 May 2018 direction; (b) the course taken by the Council prevents Mr Cutbush from addressing the matter through the appropriate process namely an appeal; (c) Member Deane’s directions should either remain ‘as is’ or be ‘totally removed’; (d) the Council’s approach would mean that Mr Cutbush would need to seek a variation to the 11 May 2018 direction each time he takes an action in any jurisdiction, such as the Magistrates Court, Federal Court, Supreme Court or High Court; and (e) the course taken by the Council prevents him from seeking legal advice about its application, as he has no legal representation at this time. [8] I do not accept these arguments. The direction made on 11 May 2018 was an alterable order: it was expressed to be ‘until further order or other order’. This reflected the reality that it might become necessary or desirable to repeal or refine the order as the proceeding progressed. When a member makes an alterable order, especially where the order is made on the basis of written submissions rather than an oral hearing, the member may not be aware of, or might overlook, potential ramifications of the order. It is also common for an alterable order or a procedural direction to be repealed or refined as circumstances change or when parties become aware of problems involved in complying with the order or direction. [9] Member Deane’s written reasons do not indicate that she contemplated or considered the effect of the direction in question on proceedings in the District Court. [10] Accordingly, and especially bearing in mind that the direction was expressed to be until further order or other order, the Council’s application of 23 August 2018 for a direction was appropriate. It was more appropriate, in my view, than an appeal. An appeal would have been a relatively cumbersome and slow procedure. [11] Mr Cutbush pointed out that in a previous proceeding in QCAT, where a decision was made that he disagreed with, he was required to appeal rather than to merely write in to request an amendment. Presumably this is a reference to Cutbush v Team Maree Property Services.1 I note, though, that the appeal there was against a final decision of QCAT, not merely an alterable order. Final decisions are intended to be fixed and final (subject to the possibility they will be overturned on appeal). Alterable orders and procedural directions, in contrast, can be changed if appropriate. [12] In relation to Mr Cutbush’s argument about the possible need for future variations to the direction in question, I do not consider the fact that Mr Cutbush might commence proceedings in other Courts, and might then have to seek further variations, is a reason for refusing the Council’s application. If such an application is made by Mr Cutbush, it will be considered on its merits. [13] Finally, I do not accept that the course taken by the Council was objectionable on the basis that it prevented Mr Cutbush from seeking legal advice. This may be a reference 1 [2010] QCATA 9. -- 3 of 4 -- 4 to the relatively short time – one week – that was allowed for Mr Cutbush to file submissions in response to the Council’s application for miscellaneous matters. I accept that this allowed very limited time for obtaining legal advice. No doubt the available time in an appeal would have been longer. However, I consider that the time allowed was adequate for the task at hand. In the time available, Mr Cutbush produced a nine-page submission with attachments. [14] In his written submissions, Mr Cutbush discussed a number other issues which I do not consider are relevant to the application for miscellaneous matters that I decided. These include criticisms of the information provided by the Council with the application decided by Member Deane, Mr Cutbush’s interactions with a witness in the review proceeding and with a club, criticisms of the reasoning of Member Deane, problems with the advice he received from his former lawyers, and so on. I do not propose to discuss these matters. Mr Cutbush also included some requests such as for a closed hearing in the review proceeding, the ‘removal’ of a witness, and the redaction of certain comments in Member Deane’s reasons, though it is possible that Mr Cutbush was merely foreshadowing intended applications in respect of these matters. Again, I do not propose to discuss them as they are not relevant to the matter I decided. Conclusion [15] The Council’s application filed on 23 August 2018 was procedurally appropriate. The direction or order sought was reasonable: it is clearly not appropriate for a direction or order made by the Tribunal to fetter the participation of the parties in a proceeding in a Court. Accordingly, I have made a further order under section 66(1) of the QCAT Act excusing the parties, in connection with the District Court matter, from compliance with direction 4 made on 11 May 2018. -- 4 of 4 --