Cutbush v Scenic Rim Regional Council
[2020] QCA 204
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- Unreported Judgment
- Cutbush v Scenic Rim Regional Council[2020] QCA 204
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Cutbush v Scenic Rim Regional Council[2020] QCA 204
Cutbush v Scenic Rim Regional Council[2020] QCA 204
[2020] QCA 204
COURT OF APPEAL
McMURDO JA
Appeal No 7955 of 2020
QCAT No 105 of 2019
PAUL CUTBUSH Applicant
v
SCENIC RIM REGIONAL COUNCIL Respondent
BRISBANE
FRIDAY, 18 SEPTEMBER 2020
JUDGMENT
McMURDO JA: The applicant is the owner of a dog which, some years ago, was declared to be dangerous and ordered to be destroyed. The Council made that destruction order on 6 November 2017. Mr Cutbush sought a review of that decision in the Queensland Civil and Administrative Tribunal. After a two-day hearing in October 2018, the tribunal delivered its decision, on 28 March 2019, confirming the Council’s decision that the dog should be destroyed.
In May 2019, Mr Cutbush applied for leave to appeal to the Appeal Tribunal of QCAT. His application was filed late but the Appeal Tribunal granted him an extension of time and heard his application in October 2019. By its decision, delivered on 13 December 2019, the Appeal Tribunal refused him leave to appeal but stayed the destruction order for 28 days.
Since then, the destruction order has remained in place but the Council has been prepared to agree to its remaining stayed whilst Mr Cutbush sought to challenge the decision of the Appeal Tribunal, by an application for leave to appeal to this Court. Ultimately, that application for leave to appeal was filed on 23 July 2020, many months out of time, although Mr Cutbush has said that the records at the Registry will show his attempt to file an application in February of this year. Mr Cutbush therefore requires an extension of time in which to apply for leave to appeal.
An appeal to this Court from the decision of the Appeal Tribunal may be made only on a question of law and with this Court’s leave. The Court has power to stay the execution of a decision such as the present one, although it has not yet granted leave to appeal. However, as I said in Simonova v Department of Housing and Public Works [2018] QCA 60, the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal.
It is obvious to say that if the stay were refused, that would put paid to the application for leave to appeal. The proposed Notice of Appeal refers to the applicant’s affidavit dated 15 July 2020. Exhibit B to that affidavit consists of some 36 pages of submissions, which do not identify with the necessary clarity, any arguable error or errors by the Appeal Tribunal. Mr Cutbush also claims that the Appeal Tribunal denied him procedural fairness, of which some details are given. But neither that claim nor the claims of legal errors have obvious merit.
However, in the circumstances, in my view, there ought to be a further but limited extension of the present position under which, as I have said, the order of QCAT has been stayed and I will allow the applicant an opportunity to reformulate his case by an amended draft Notice of Appeal to the end that the application for leave would be heard and, it would be expected, determined by the end of November.
For those reasons, the orders will be:
- The applicant will file and serve an amended application for leave to appeal, including an application for an extension of time, together with his outline of argument, by 5 October 2020.
- The respondent will file its outline of argument by 26 October 2020.
- The application for leave to appeal, including the application for an extension of time, will be set down for hearing in November 2020 on a date to be advised by the Registrar.
- The decision of the Queensland Civil and Administrative Tribunal made on 28 March 2019 in proceeding GAR 325-17 will be stayed until the determination of that application for leave or further earlier order of the Court.
- Today’s costs will be the Council’s costs in the application for leave to appeal.