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Scenic Rim Regional Council v Cutbush[2021] QCAT 371

Scenic Rim Regional Council v Cutbush[2021] QCAT 371

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Scenic Rim Regional Council v Cutbush [2021] QCAT 371

PARTIES:

SCENIC RIM REGIONAL COUNCIL

(applicant)

V

PAUL CUTBUSH

(respondent)

APPLICATION NO/S:

GAR394-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 November 2021

HEARING DATE:

27 July 2021 

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

  1. It is declared that Paul Cutbush has acted in contempt of the Queensland Civil and Administrative Tribunal.
  2. Paul Cutbush shall pay a fine of $20,000 for having committed such contempt.
  3. Paul Cutbush shall pay the Scenic Rim Regional Council’s costs of and incidental to the contempt application filed 2 October 2018, such costs to be assessed on the indemnity basis as if this were a proceeding before the Supreme Court of Queensland.
  4. Pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the application for miscellaneous matters dated 2 August 2021 is dismissed.  

CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – ORDERS RESTRAINING MEDIA PUBLICATION – where the applicant made a dangerous dog declaration against the respondent’s dog – where the respondent filed in the Tribunal an application to review that decision – where a Member of the Tribunal made an order in those proceedings prohibiting the publication of certain information – where the respondent made various posts on a public Facebook page – where the applicant has brought a contempt application in the Tribunal against the respondent – where the applicant submits that the respondent breached the non-publication order or engaged in conduct which had a tendency to interfere in the administration of justice – where the Tribunal has all of the powers and authority the Supreme Court has for contempt – whether the respondent has contravened an order of the Tribunal – whether the respondent has interfered with the administration of justice – whether the respondent should be found in contempt

COURTS AND JUDGES – CONTEMPT – PUNISHMENT AND ENFORCEMENT – PUNISHMENT – ORDER – NATURE OF PUNISHMENT – FINE – where sanction for contempt is informed by the public interest in ensuring fairness of tribunal proceedings – where punishment needs to be appropriate and effective – where punishment needs to be proportionate to the seriousness of the contempt – where the respondent’s conduct was serious, deliberate and persistent – where the respondent has demonstrated no insight into his conduct or expressed remorse – whether the appropriate sanction is a fine – whether the respondent ought pay the applicant’s costs on an indemnity basis 

Animal Management (Cats and Dogs) Act 2008 (Qld), s 127A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 66, s 90, s 100, s 102, s 135, s 213, s 218, s 219

Attorney-General for the State of Queensland v Di Carlo [2017] QSC 171

Attorney-General (Qld) v Mathews [2020] QSC 258

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483

Australian Securities and Investment Commission v Michalik (2004) 52 ACSR 115

Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271

Cutbush v Scenic Rim Regional Council [2018] QCAT 139

Cutbush v Scenic Rim Regional Council [2019] QCAT 80

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

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Dubois v Rockhampton Regional Council [2015] QPELR 77

Fitness First Australia Pty Ltd v McNicol (No 2) [2013] QSC 329

Harkianakis v Skalkos (1997) 42 NSWLR 22

Harris v Muirhead [1993] 2 Qd R 527

Madeira v Roggette Pty Ltd [1990] 2 Qd R 357

Paroz v Paroz [2010] QSC 488

Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5

Resolute Ltd v Warnes [2000] WASCA 359

APPEARANCES &

REPRESENTATION:

 

Applicant:

J Dillon (counsel) instructed by King & Company Solicitors

Respondent:

Self-represented (appearing by telephone)

REASONS FOR DECISION

  1. [1]
    In November 2017, the Scenic Rim Regional Council (“SRRC”) made a dangerous dog declaration with a destruction order under s 127A of the Animal Management (Cats and Dogs) Act 2008 (Qld) in relation to a dog known as “Bandit” which was owned by Mr Paul Cutbush.
  2. [2]
    Mr Cutbush filed in the Tribunal an application for review of that decision by the SRRC.  The matter proceeded in the Tribunal under File No. GAR325-17.
  3. [3]
    On 28 March 2019, the Tribunal confirmed the decision made by the SRRC.[1] 
  4. [4]
    Mr Cutbush then filed an application for leave to appeal or appeal against that decision of the Tribunal.
  5. [5]
    On 13 December 2019, the Appeal Tribunal refused Mr Cutbush’s application for leave to appeal and dismissed his application.[2]
  6. [6]
    On 23 July 2020, Mr Cutbush applied to the Court of Appeal for an extension of time within which to file an application for leave to appeal against the decision of the Appeal Tribunal.  That application for an extension of time was dismissed by the Court of Appeal on 25 November 2020.
  7. [7]
    In the course of progressing the application for review in GAR325-17, the SRRC applied for orders permitting it to redact certain personal information relating to its staff and witnesses and for orders prohibiting publication of certain information including those personal details. 
  8. [8]
    On 11 May 2018, a Tribunal Member made a range of orders on that application and published reasons for making those orders.[3]  The orders made by the Tribunal on 11 May 2018 included:
  1. 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:
  1. (a)
    all documents in the Scenic Rim Regional Council’s possession or control that may be relevant to the Tribunal’s review and statements of evidence of its witnesses that are produced to the Tribunal and served on Mr Cutbush;

  1. (d)
    all information which enables a person who has appeared before the Tribunal or is affected by the proceedings, including Council officers and others persons who provided or prepared documents referred to above, to be identified.
  1. [9]
    On 10 September 2018, the Tribunal made an order excusing the parties from compliance with that non-publication order “to the extent necessary for the parties to engage in and progress District Court proceedings D26/17 in the Beenleigh Registry”, those being proceedings which had been brought in the District Court by Mr Cutbush against the SRRC claiming damages in relation to the impoundment of the dog.  The Tribunal gave its reasons for that variation to the non-publication order on 18 September 2018.[4]
  2. [10]
    In the Tribunal’s final decision in GAR325-17, as corrected pursuant to s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) on 27 May 2019, it was also ordered:
  1. 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 three 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.

The present application

  1. [11]
    On 2 October 2018, the SRRC filed the present application seeking orders that Mr Cutbush be punished for contempt of the Tribunal.  As the Tribunal’s jurisdiction and powers to punish a contempt of the Tribunal may be exercised only by a judicial member of the Tribunal,[5] it is the longstanding practice of the Tribunal to create a file specifically for each contempt application.  Accordingly, this contempt application has been dealt with under File No. GAR394-18. 
  2. [12]
    It is not necessary for present purposes to recount all of the procedural directions which were made over the ensuing months and years for the purpose of progressing the contempt application.  The following, however, are notable:
    1. (a)
      On 21 November 2018, I made a series of directions for the parties to file and serve, amongst other things, the affidavits on which they proposed to rely by stated dates.  Mr Cutbush did not comply with these directions either by the stated date or at any time thereafter.
    2. (b)
      On 17 October 2019, I directed, amongst other things, that Mr Cutbush file and serve his written outline of submissions on the contempt application by 4:00pm on 12 December 2019.  He did not comply with that direction, either by the stated date or at any time thereafter. 
  3. [13]
    On 22 April 2021, the Tribunal Registry sent the parties a Notice of Hearing for GAR394-18, informing the parties that a hearing would be conducted by the Tribunal at 10:00am on 12 May 2021. 
  4. [14]
    Mr Cutbush did not attend at or appear at the hearing on 12 May 2021.  In his absence, I heard oral submissions from counsel for the SRRC on its contempt application and directed that the SRRC, by 4:00pm on 26 May 2021, file and serve submissions as to the sanction which should be imposed if the Tribunal makes findings of contempt.
  5. [15]
    It transpired, however, that at 9:20am on 12 May 2021 (i.e. 40 minutes before the hearing was to commence), Mr Cutbush had sent an email to the Tribunal’s Registry pointing out that the Notice of Hearing which had been sent to the parties said:

The purpose of this hearing is to decide the application for contempt filed on 2 October 2010.

  1. [16]
    Mr Cutbush said he had not been provided with any application from “2 October 2010”, and that he would respond once he had that application and been “provided natural justice”. 
  2. [17]
    I note that the Notice of Hearing which had been delivered to the parties specified the correct file number, GAR394-18, named the correct parties, and referred to a contempt application.  It did, however, contain a typographical error by referring to “2010” rather than “2018” as the filing date of the contempt application. 
  3. [18]
    Mr Cutbush’s email was brought to my attention only after the hearing on 12 May 2021.  I then caused a further directions hearing to be convened on 4 June 2021, at which time, after hearing argument from the parties, I made the following further directions:
  1. Paul Cutbush has leave to be legally represented.
  1. The contempt application filed on 2 October 2018 shall be listed for a fresh final hearing for the parties to make their submissions, including as to sanction, on a date to be fixed by the Tribunal.
  1. Paul Cutbush shall file in the Tribunal and give to the Scenic Rim Regional Council any written submissions on which he proposes to rely at the final hearing by not later than 4:00pm on 16 July 2021.
  1. Scenic Rim Regional Council shall file in the Tribunal and give to Paul Cutbush any written submissions in reply by 4:00pm on 23 July 2021.
  1. [19]
    Mr Cutbush did not comply with direction 3, either by the stated date or by the time of the fresh final hearing, which was held on 27 July 2021.  Nor did Mr Cutbush take advantage of the leave he had been given to be legally represented at the final hearing.
  2. [20]
    In short, by the time of the final hearing on 27 July 2021, Mr Cutbush had not filed any evidence or written submissions in opposition to the contempt application.
  3. [21]
    As will appear, one of the SRRC’s primary complaints is that Mr Cutbush, in various separate incidents which will be described below, breached the non-publication order which had been made on 11 May 2018.  In order to understand the context in which that order was made, the findings which led to the order, and the reasons for the order, it is appropriate to recount the following from the learned Member’s reasons:[6]

[12] The Council filed an affidavit, which provides evidence of various communications including on various public social media platforms by Mr Cutbush, his wife and various supporters. The Council contend that the evidence demonstrates that such activities and publications have been used to ‘embarrass (sic.), harass and intimidate witnesses and potential witnesses in the proceeding.’ Mr Cutbush has not filed any evidence which disputes the contents of the affidavit.

[13] The Council contends that the orders are necessary to prevent Mr Cutbush from engaging in similar conduct upon receiving information and evidence during the proceeding. A closed hearing is not sought. The Council contends that the broad non-publication orders are necessary to avoid interference with the proper administration of justice and are required in the interests of justice including:

  1. (a)
    preventing unfair and inaccurate reporting relating to the proceeding and witnesses involved in the proceeding, in circumstance [sic] where the material has the capacity to adversely affect or influence potential witnesses and their willingness to give evidence, and the proceeding generally; and
  1. (b)
    otherwise ensuring a fair hearing of this matter can be conducted.

[15]  The evidence is that Mr Cutbush has written to a potential witness’ club, place of employment and regulatory body making serious allegations and has encouraged supporters to write to a potential witness.

[16]  Objectively viewed, the correspondence, circulating flyers and the social media publications make public personal information about individuals associated with the decisions under review, make derogatory comments about them and severely criticise them, including by making unparticularised allegations of corruption.

[17] The social media publications in evidence before me, including by Mr Cutbush’s wife and supporters demonstrate a propensity to vilify anyone who disagrees with Mr Cutbush in relation to the decisions under review.

[18]  The Council officer, who gave evidence in support of this application, contends that the actions constitute bullying, intimidation and harassment. His evidence is that:

  1. (a)
    he believes that the acts have negatively impacted on the mental health of the Council employees involved;
  1. (b)
    Council has sought the services of a psychologist to assist employees dealing with the impacts of the conduct;
  1. (c)
    he is very concerned about the negative impacts on the mental health of Council employees if Mr Cutbush and others continue to publish material regarding the proceeding;
  1. (d)
    he is concerned about the safety of Council employees, particularly those at the small animal facility;
  1. (e)
    the police have been requested to increase their presence around the small animal facility;
  1. (f)
    he is concerned that potential witnesses will decline to give evidence or assist in the proceeding; and
  1. (g)
    a veterinarian, who has been the subject of Mr Cutbush’s communications has indicated he does not wish to provide further reports in this matter as a result of the communications.

[22]  I accept that, more likely than not, the nature and extent of the communications will have had an adverse affect on the mental health of those named and that continuing publications would, more likely than not, have adverse affects on the mental health of those targeted.

[23]  It is not difficult to draw the inference that more likely than not:

  1. (a)
    the communications have been designed to target and pressure the potential witnesses, the subject of the communications; and
  1. (b)
    unless prohibited, communications of a similar nature and extent are likely to continue to be made to target and pressure potential witnesses and that information obtained through these proceedings may be used to do so.

[25]  His Honour Justice Applegarth recently published a document which stated in relation to unacceptable behaviour towards witnesses by the media:

The justice system depends upon witnesses and parties being able to attend court and give evidence without undue influence or pressure. This includes protection from vilification, in any form of communication, which may prejudice a pending proceeding, as well as protection from physical obstruction. Witnesses play a central role in the justice system. Their testimony enables the guilty to be convicted and the innocent acquitted, and for courts to reach correct decisions.

[26]  I am satisfied that special circumstances have been made out and that it is an appropriate case to avoid interference with the proper administration of justice, and to exercise my discretion, in the interests of justice, to protect witnesses and others affected by the proceedings from potential vilification, and to allow a fair hearing of the matters in dispute.”

Contempt of the Tribunal

  1. [22]
    The SRRC contends that particular conduct by Mr Cutbush which will be described below was in contempt of the Tribunal because the conduct was either or both:
    1. (a)
      conduct which contravened the non-publication order; or
    2. (b)
      conduct which had a tendency to interfere with the administration of justice. 
  2. [23]
    By s 219(1) of the QCAT Act, this Tribunal “has, for itself, all the protection, powers, jurisdiction and authority the Supreme Court has, for that court, in relation to contempt”. 
  3. [24]
    Section 218 provides a non-exhaustive list of circumstances which may constitute contempt of the Tribunal.  One of those is the commission of an offence under Chapter 5 Part 1 of the QCAT Act.  By s 213, contravening a decision of the Tribunal without reasonable excuse is one such offence.  Section 219(8), however, also provides:

The tribunal has jurisdiction to punish an act or omission as a contempt of the tribunal even though a penalty is prescribed for the act or omission.

  1. [25]
    It seems to me that, where it is alleged that a party has committed a contempt by failing to comply with a Tribunal decision, the relevant question is whether the party, by its conduct, in fact contravened the terms of the decision. The fact that such contravening conduct may also be relied on for the purposes of establishing an offence under s 213 is not to the point. In other words, conviction for the offence under s 213 is not a prerequisite for contempt proceedings based on the contravening conduct.
  2. [26]
    The historical distinction between civil contempt and criminal contempt was summarised in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd by Gibbs CJ, Mason, Wilson and Deane JJ as follows:[7] 

Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as "civil contempt"; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as "criminal contempt": Fox, History of Contempt of Court (1927), p. 1. As Lord Diplock said in Attorney-General v. Leveller Magazine Ltd. (18), criminal contempts "... all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process".

  1. [27]
    Proceedings for contempt arising from a failure to comply with a court order may reflect both criminal and civil characteristics of contempt.  As Barwick CJ said in Australian Consolidated Press Limited v Morgan:[8]

A contempt in procedure by disobedience of an order of the Court … may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt.

  1. [28]
    Insofar as the present case is advanced on the basis that the conduct in question had a tendency to interfere with the administration of justice, I respectfully adopt the following summary of relevant principles as stated by Ipp J, with whom Kennedy and Miller JJ agreed, in the Full Court of the Supreme Court of Western Australia in Resolute Ltd v Warnes:[9]

[13] The principles to be applied, generally, to a contempt of the nature alleged were examined by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 (at 27 - 30). This case turns on certain of those principles and I shall set out in summary form those that are presently relevant. In substance, (save where otherwise indicated) these have been extracted from his Honour's exposition.

  1. (a)
    The charge must be established beyond reasonable doubt.
  1. (b)
    The claimant must prove, according to the criminal standard, that the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in a particular case (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372; R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 at 533).
  1. (c)
    Because of its exceptional nature, this summary jurisdiction has always been regarded as one, which is to be exercised with great caution. 
  1. (d)
    Intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a prosecution. 
  1. (e)
    The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.
  1. (f)
    It is an open question as to whether the tendency is to be measured against the capacity of the particular litigant involved to withstand pressure, or whether the court should have in contemplation some hypothetical litigant of "ordinary" fortitude.
  1. (g)
    In punishing certain types of interference with litigants, the law distinguishes between proper and improper pressure.
  1. [29]
    I also respectfully adopt the following observations by Harrison J in Prothonotary of the Supreme Court of New South Wales v Rakete:[10]

[22] The plaintiff relied upon what was said by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27–30. His Honour there summarised a series of principles which, with suitable adaptation, can for present purposes be stated as follows:

  1. This being an allegation of criminal contempt, the charge must be established beyond reasonable doubt.
  1. Unlike the first charge, intention to interfere with the due administration of justice is not necessary to constitute contempt.
  1. Successful interference with the conduct of proceedings, or with the part played in the proceedings by a witness, is not necessary for proof of liability for contempt by improper pressure.
  1. The tendency to interfere with the administration of justice is not to be measured against the capacity to withstand pressure of the particular witness involved, but the court need only have in contemplation some hypothetical witness of “ordinary” fortitude who might be capable of influence by similar pressure applied in similar circumstances.

[23] The plaintiff also referred to Y and Z v W [2007] NSWCA 329 ; (2007) 70 NSWLR 377. That was a case involving consideration of an alleged contempt in the course of civil proceedings. The contempt there was a proposal to file an affidavit containing scurrilous material not for a bona fide purpose but in order to bring improper pressure on one of the parties to settle the litigation. Ipp JA said this at [39]:

[39] Fifthly, in a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372 per Dixon CJ, Kitto, Fullagar and Taylor JJ; Harkianakis v Skalkos at 27 per Mason P; Resolute v Warnes at [13]. The test was put succinctly by O'Loughlin J in Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 where his Honour said (at 505) that the court must determine “whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate”.

[24] I was also referred to Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 at 268 in the following terms:

For words or action used in face of the court, or in the course of proceedings, for they may be used outside the court, to be a contempt, they must be such as would interfere, or tend to interfere, with the course of justice. No further definition can be attempted.

The impugned conduct

  1. [30]
    The SRRC’s application particularises 12 instances of conduct (described in the application as “grounds”) on which it relies as supporting a finding that Mr Cutbush acted in contempt of the Tribunal.  Those instances occurred on dates between 27 May 2018 and 13 September 2018.  Eight of the instances were said to be comprised in comments which had been posted on a public Facebook page named “Bandit’s Blog”.
  2. [31]
    Before detailing the instances, it is appropriate at this point to make several necessary factual findings.
  3. [32]
    The first concerns Mr Cutbush’s knowledge of the non-publication order.  This goes to the submission that he was in contempt for contravening this order.
  4. [33]
    On the evidence before me, I am satisfied beyond reasonable doubt that:
    1. (a)
      The non-publication orders were made on 11 May 2018.
    2. (b)
      The Tribunal emailed a copy of the non-publication orders and the Member’s reasons to the parties’ legal representatives on 14 May 2018.
    3. (c)
      Mr Cutbush was personally aware of the non-publication orders from at least 27 May 2018.  In making that finding, I have had regard to the uncontroverted evidence adduced by the SRRC’s solicitor.[11]  In particular, that includes evidence of postings made on “Bandit’s Blog” on 27 May 2018 from which the only reasonable inference is that Mr Cutbush was, at that date, aware of what he described as a “gag order” and that he asserted that the SRRC was stalling proceedings “by requesting non-publication”.  It is certainly the case that Mr Cutbush had received an actual copy of the non-publication order by 28 May 2018 – so much was expressly conceded by him in an affidavit made on 21 June 2018 in GAR325-17, which is cited by the learned Member who gave the primary decision in that case.[12]  In that affidavit, Mr Cutbush had also said that he had received advice about the non-publication order from his lawyer on 25 May 2018.  Accordingly, I am satisfied beyond reasonable doubt that Mr Cutbush had knowledge of the non-publication order as at 27 May 2018.
    4. (d)
      On 21 May 2018, Mr Cutbush had been provided with:
      1. a list of the non-SRRC witnesses; and
      2. copies of relevant documents in the possession of the SRRC, including:
        1. material relating to the investigation of the dog incidents and the making of the dangerous dog declaration and destruction order which was issued by a named SRRC officer (who will be referred to in these Reasons as “[DM]”);
        2. a veterinary report by Dr David Bartholomeusz; and
        3. a report by veterinarian Dr Cam Day.
  5. [34]
    The second matter goes to Mr Cutbush’s responsibility for those matters complained of in the incidents which were published on “Bandit’s Blog” because “anyone who can be said to bear the real responsibility for the publication of the matter complained of, is liable to be dealt with for contempt”.[13]
  6. [35]
    The evidence relevant to this issue is set out in two affidavits by SRRC’s solicitor.[14]  That evidence was not challenged or controverted.  I accept the solicitor’s evidence, which demonstrates that, at the time of the incidents, Mr Cutbush, together with his wife, Judith Elaine Cutbush, had editorial control over the “Bandit’s Blog” webpage.  I also accept the evidence of the many posts made personally by Mr Cutbush on “Bandit’s Blog”, including some 14 video posts between 26 December 2017 and 19 September 2018 and numerous written posts and comments.  The evidence demonstrates that, during the period in which the incidents occurred, Mr Cutbush was a “team leader” of “Bandit’s Blog”, which meant he had “admin” or “editor” privileges in relation to the webpage.  In that capacity, Mr Cutbush had real responsibility for the publication on “Bandit’s Blog” of the subject matters of complaint.  I find it proved beyond reasonable doubt that Mr Cutbush was in control of “Bandit’s Blog” at the time of the impugned publications and that he is responsible for them.
  7. [36]
    Turning then to the incidents complained of, I formally find that the unchallenged, uncontroverted evidence adduced by the SRRC proves beyond reasonable doubt the following facts which were particularised in the contempt application.

Incident One

  1. (a)
    On 27 May 2018, Mr Cutbush published, or allowed to be published, the following post to “Bandit’s Blog”:

Bandit is cold and neglected by the corrupt and malicious Scenic Rim Regional Council.  [CG] and [DM] and their team of unqualified cronies continue to refuse to allow our child’s pure bred dog basic sanitation, well vet and vet care, please post any old or inexpensive blankets to help keep Bandit warm while he languishes under their malicious vendetta.  Send c/o

[CG] SRRC PO Box 25 Beaudesert 4285

  1. (b)
    The person referred to as [DM] was a Council officer who prepared documents disclosed in the proceeding, including a statement in the proceeding, and was a proposed witness in the proceeding.
  2. (c)
    By reason of having been provided with SRRC documentation on 21 May 2018, Mr Cutbush should have been aware of the time of the publication that [DM] had prepared documents in the proceeding, that he was a witness or potential witness in the proceeding, and that he was affected by the proceeding.
  3. (d)
    The publication identified [DM]. 

Incident Two

  1. (a)
    On 27 May 2018, Mr Cutbush published, or allowed to be published, the following comment under a post dated 27 May 2018 on “Bandit’s Blog”:

Thanks Amanda. Well the Crime and Conduct commission are looking at the SRRC.  They have appointed private investigators to look at a Public Interest Disclosure that has provided information regarding [DR] and [DM] who have both been the chief players in this ongoing cruelty to our pet.

  1. (b)
    The person referred to as [DM] was an SRRC officer who prepared documents disclosed to the proceeding, including a statement in the proceeding, and was a potential witness in the proceeding. 
  2. (c)
    By reason of having been provided with council documentation on 21 May 2018, Mr Cutbush should have been aware at the time of the publication that [DM] had prepared documents in the proceeding, that he was a witness or potential witness in the proceeding, and that he was affected by the proceeding.
  3. (d)
    The published comment identified [DM].

Incident Three

  1. (a)
    On 31 May 2018, Mr Cutbush published, or allowed to be published, the following post to “Bandit’s Blog”:

[DM] – why can’t my child see her dog since September you cruel malicious man.

  1. (b)
    The person referred to as [DM] was an SRRC officer who had prepared documents disclosed in the proceeding, including a statement in the proceeding, and was a potential witness in the proceeding.
  2. (c)
    By reason of having been provided with SRRC documentation on 21 May 2018, Mr Cutbush should have been aware of the time of the publication that [DM] had prepared documents in the proceeding, that he was a witness or potential witness in the proceeding, and that he was affected by the proceeding.
  3. (d)
    The publication identified [DM].

Incident Four

  1. (a)
    On 5 June 2018, Mr Cutbush published, or allowed to be published, the following post to “Bandit’s Blog”:

Our little guy was loud tonight.  He has had enough.  All I can tell him from outside filthy compound is how much we love and mis him.  How is it in 2018 a former Baker, with all due respect to Bakers can seize my Daughters pet based on a dodgy complaint from our neighbour who now claims he is a victim after his Blue Cattle Dog attacked Bandit [the subject dog] through the joint fence on 11 Sept last year.

[DM] who is a Ranger at Scenic Rim Regional Council refused to take any action when my two dogs and myself were attacked on 250112 on my property.

He has no qualifications.

[CB] and [MJ] our neighbours at that time offered no assistance and supported the [redacted] family who owned the dog.

The pig dog from next door attacked me and Chase and Storm our pets.  One week later the SRRC interviewed me.

I then received a letter stating they didnt [sic] believe I had a legitimate claim.  So then [DM] of the SRRC of [address redacted] claims Bandit is a risk.

I was delivering Free Bandit flyers at his address and I saw the Scenic Rim Regional Council vehicle in the front yard.

This location is outside the SRRC Jurisdiction. B

I then nearly got eating by his 2 very dangerous guard dogs who rushed me.

The neighbour has been taunting our pets since early last year.  It started with smashing the 7ft Colorbond fence at 0200am in February

Tonight no other

  1. (b)
    The person referred to as [DM] was a Council officer who had prepared documents disclosed in the proceeding, including a statement in the proceeding, and was a potential witness in the proceeding.
  2. (c)
    The persons identified as [CB] and [MJ] were neighbours of Mr Cutbush; [CB] was the complainant in the third incident involving the dog and [MJ] was a witness to the third incident.  Both [CB] and [MJ] gave statements, were potential witnesses in the proceeding, and were affected by the proceeding.
  3. (d)
    By reason of having been provided with council documentation on 21 May 2018, Mr Cutbush should have been aware at the time of the publication that each of [DM], [CB] and [MJ] had prepared documents in the proceeding, was a witness or potential witness in the proceeding, and was affected by the proceeding.
  4. (e)
    The publication identified each of [DM], [CB] and [MJ].

Incident Five

  1. (a)
    A person identified for present purposes as [MS] was a witness to two of the incidents involving the dog and had given a statement in relation to each incident.
  2. (b)
    By reason of having been provided with SRRC documentation on 21 May 2018, Mr Cutbush should have been aware on 14 June 2018 that [MS] was a witness or potential witness in the proceeding and that he was affected by the proceeding.
  3. (c)
    On 14 June 2018, Mr Cutbush sent an email to the employer of [MS] in which Mr Cutbush said:

Dear Director General

The Gold Coast Homeless Youth project have failed to take any action in relation to a staff Member who continues to Breach the QLD Government Code of Conduct. 

I request an investigation as the marihuana fumes from his property next door to us is ridiculous and use of a large bong on the Street outside our home in view of our children is not acceptable.

Most recently I have advised the Police that my mowing contractor has found extensive shotgun casings on his driveway in a public place.

His son [redacted] continues to harass us also.

Dear [redacted]

Please advise status

This person is a QLD DHPW subsidised employee yet continued to harass my family and smash our fence.

I have attached a video of the damage on 11 March 2017 and abuse from this Gold Coast Homeless Youth Service employee [MS].

He is not fit to be a role model for Youth.

This included him revving his motorbike at midnight on 11 March 2017.

The fence was extensively damaged then on 11 September 2017.

I have contacted the Minister again as it is not an acceptable use of public funds.

Regards

Paul

Incident Six

  1. (a)
    On 14 June 2018, Mr Cutbush wrote the following email to veterinarian Dr David Bartholomeusz:

Dear Doctor our Daughters Bandit is still being kept with no exercise, visitation, sunlight at the SRRC.

Bandit has now been there since 11 Sept 2017 eg: nearly 10 months

I read your report again and note that you were not given accurate information.

The Blue Cattle Dog from next door entered our property and it was on private property.  Bandit then went next door protecting myself and our property.  I was there.

The chap next door has admitted to kicking the 7ft colorbond fence due to barking and it caved in allowin his dog to enter.

The other incidents on 10 March 2017 was classified as a 2 cm abrasion by the GP after the joggers screamed at him and then a bikie from next door chased him with a 9ft pole with nails on then end.

The other incident never happened.

Before you saw him he had been poled probably about 9 times, had been housed with dozens of strays at Dakabin, had been transported in an open ute for hours on at least 4 occasions sprayed everyday with a hose and kept in a 1.2m cell. In addition exposed to welding.

He was due to be desexed the day after he was taken and is country dog who has only been to the vet and lives on 11 acres.

They used your report and Cam Days report to justify killing him.

They didn’t take your recommendation re “medium” term exercise will be required and its now nearly a year.

We are still in QCAT and have an excellent Barristers in Men Mcmilland and Lawyer – Chris Lumme of AFT Legal.

Its criminal

Regards

Paul

  1. (b)
    By reason of having been provided with a copy of Dr Bartholomeusz’s report on 21 May 2018, Mr Cutbush was aware at the time of sending this email that Dr Bartholomeusz was a potential witness in the proceeding.

Incident Seven

  1. (a)
    On 6 July 2018, Mr Cutbush published or allowed to be published the following post on “Bandit’s Blog”:

Kajeana Red Bandit

I have been asked to write an account of how Bandit came to live with us as he languishes in Scenic Rim Council hell at Beaudesert for over 10 months due to the malice and spite of [CG], [DM] et al.  Today it is a rainy winter’s day and Bandit has not seen the sun in many months.  We worry about his health and wellbeing constantly while the architects of his dilemma sit comfortably with the torture of a live animal, the denial of statutory rights and the persecution and intimidation of anyone who endeavours to address this injustice.

With the council still stalling the court process at every turn we rely on the toughness of our little dog’s breed to see him through this appalling period in his young life.

  1. (b)
    The person referred to as [DM] was a Council officer who had prepared documents disclosed in the proceeding, including a statement in the proceeding, and was a witness or potential witness in the proceeding. 
  2. (c)
    By reason of having been provided with Council documentation on 21 May 2018, Mr Cutbush should have been aware at the time of the publication that [DM] had prepared documents in the proceeding, that he was a witness or potential witness in the proceeding, and that he was affected by the proceeding.
  3. (d)
    The publication identified [DM].

Incident Eight

  1. (a)
    A person identified for present purposes as [MJ] was a neighbour of Mr Cutbush.  [MJ] was a witness to the third incident involving the dog, the complainant of which was the partner of [MJ].  [MJ] gave a witness statement to the SRRC.
  2. (b)
    By reason of having been provided with Council documentation on 21 May 2018, Mr Cutbush should have been aware on 7 July 2018 that [MJ] was a witness or potential witness in the proceeding and was affected by the proceeding.
  3. (c)
    On 7 July 2018, Mr Cutbush sent an email to [MJ] in which he said:

Subject: RE: [redacted] – Release of Information

Dear [MJ],

I strongly suggest you have this person desist from posting any more information that is subjudice on Facebook.

She had released your address on Bandits Blog today and claims she is a witness for you and has been discussing the matter with Council’s lawyers and Police (eventhough it’s a Council matter)

As you know Councils lawyers have had QCAT agree to a non-disclosure on our Review matter in QCAT.

If the posts are not removed I will advise QCAT that you are now in contempt of Court.

I have copied my Lawyer Mr Lumme.

The posts today included statements:

Advising people of your address

Advising people of our address

Claims that we made “settlement” difficult for 7 years ago when we bought the property

Claims that “its karmah”.

Ambit claims of alleged attacks

Statements that she hopes “we have deep pockets”.

Regards

Paul

Incident Nine

  1. (a)
    On 12 August 2018, Mr Cutbush published, or allowed to be published, the following post to “Bandit’s Blog”:

No exercise, no sunlight, no visitation, no sanitation underfed, not washed, no vet care for close to 12 months in a 1.2 cell but the Scenic Rim Regional Council (SRRC) and the RSPCA continue to allow this torture of our Bandit.

Most nights we attend to shout out to him he is crying.

Over the last months (after surviving record heatwaves at Beaudesert) Bandit would be subjected to terrible cold and below zero conditions.

The continue to try and kill him.

The Council refuse to provide him with bedding (as he rips it up… I wonder why!!) and he has no no kennel.

As a cattle dog he likes somewhere he can retreat to.  The Council have given him no privacy and he is sprayed with a high pressure hose twice a day.  Yes thats the way they clean the kennel.

The SRRC Mayor [GC] and the Ranger behind this [DM] should be sacked…

  1. (b)
    The person referred to as [DM] was a Council officer who prepared documents disclosed in the proceeding, including a statement in the proceeding, and was a witness or potential witness in the proceeding.
  2. (c)
    By reason of having been provided with Council documentation on 21 May 2018, Mr Cutbush should have been aware at the time of the publication that [DM] had prepared documents in the proceeding, that he was a witness or potential witness in the proceeding, and that he was affected by the proceeding.
  3. (d)
    The publication identified [DM].

Incident Ten

  1. (a)
    On 23 August 2018, Mr Cutbush published, or allowed to be published, the following post to “Bandit’s Blog”:

So the SRRC have been conducting a CCC directed investigation into corruption that includes [DM] and his Boss.  I cant wait to hear what the outcome is.  Evidently like Ipswich Council the corruption and fraud runs deep.  [DM] likes to use SRRC assets on his own property that is out of the Council region.

  1. (b)
    The person referred to as [DM] was a Council officer who prepared documents disclosed in the proceeding, including a statement in the proceeding, and was a witness or potential witness in the proceeding.
  2. (c)
    By reason of having been provided with Council documentation on 21 May 2018, Mr Cutbush should have been aware at the time of the publication that [DM] had prepared documents in the proceeding, that he was a witness or potential witness in the proceeding, and that he was affected by the proceeding.
  3. (d)
    The publication identified [DM].

Incident Eleven

  1. (a)
    On 4 September 2018, Mr Cutbush wrote the following email to the person identified above as [MJ], who was a witness or potential witness in the proceeding:

This is your Son and [redacted] destroying the joint fence

I have a Peace and Good Behaviour Application lodged now that I have [redacted’s] name.

[Redacted] has been stalking me since 10 March 2017 and Police are aware.

  1. (b)
    That email of 4 September 2018 included as part of its chain an earlier email from Mr Cutbush to [MJ] dated 8 January 2018, which read in part:

Judith and I both saw what happened.

I note on that day your dog was going crazy along the border fence as usual and someone also threw something into our yard besides the smashing of the fence taunting the pup.

I was at the fence when Lady was coming in after I heard the wrenching of the fence being opened.

I provided a detailed affidavit to the Court and SRRC on 13 September 2017.

You are liable (due to your negligence) for the ongoing torture of our pet who has now been held for close to 3 months in a 1.2m cell.

The matter is currently in the Beenleigh QLD District Court (Judge Choudery) as we are suing the Council for unlawful seizure and ongoing animal cruelty.

One hearing has already been held and I am awaiting advice on whether we join you to the Matter.  We are suing the Council and others for $749,000 (File D 26/17)

The matter is also in QCAT (separate to my debt issue) as the SRRC are trying to destroy Sarah’s pet and we have engaged a Lawyers and a Barrister. 

In March last year we had [CM] opening our gate with [MS] letting our dogs out and harassing us.  That matter also went to Police.

We now have over 5100 supporters on change.org and over 5000 on Facebook.  We will get Bandit home.

Beaudesert Times are ready to release a story once we have them interview our Lawyer. 

  1. (c)
    Mr Cutbush was, or should have been aware, at the time of writing the email on 4 September 2018 that [MJ] was a witness or potential witness to the proceeding.

Incident Twelve

  1. (a)
    On 13 September 2018, Mr Cutbush published, or allowed to be published, the following post to “Bandit’s Blog”:

SRRC Lies – Part 1.

In September 2017 the Councils Lawyer advised that the SRRC exercise dogs at the Pound. This is a total lie. No dogs including Bandit are provided with any exercise. Most dogs move through very quickly as they are obviously killed.

So what they did is kept Bandit for weeks and weeks (60 days) poled him 9 times, transferred him to Dakabin and back, and then got Cam Day in to poke him with a wooden spoon and write a report that he was dangerous and must be destroyed.

So they must have decided that at 60 days with no exercise etc he was razzed up enough for the assessment plus they topped that off by having welding works happening in the Pound for 3 days while he was the only dog there before the assessment.  Sparking and fumes.

The banning of visitations is obviously based on the fact that Bandit was calm and able to be washed last time I visited him at the RSPCA. 

This didn’t suite the agenda so we have had no visitation since 14 October 2017 which is a very serious breach of s129 of the Act.

See part of the letter below from the “liar Lawyer” Mark Williams:

  1. (b)
    By reason of having been provided with a copy of Dr Day’s report on 21 May 2018, Mr Cutbush was aware on 13 September 2018 that Dr Day was a witness or potential witness in the proceeding.
  2. (c)
    The publication identified Dr Day.

Contravention of the non-publication order?

  1. [37]
    The SRRC contends that each of the publications particularised in Incidents One, Two, Three, Four, Seven, Nine, Ten and Twelve contravened the terms of the non-publication order which had been made on 11 May 2018.
  2. [38]
    A finding that a person has contravened an order of a court or tribunal ought not be made lightly.  The inquiry as to whether a contravention has occurred requires a close examination of the terms of the order itself and of the conduct which is said to have offended against the terms of the order.
  3. [39]
    In this case, the prohibition was on the publication of “all information which enables a person who … is affected by the proceedings, including Council officers and others [sic] persons who provided or prepared documents referred to above to be identified”. 
  4. [40]
    What was prohibited by that order was publication of information which permitted identification of a person in their capacity as a person who was affected by the proceeding, such as identification of a person as a Council officer who had provided or prepared one of the relevant documents.
  5. [41]
    The posts in question certainly refer to people who had in fact provided or prepared documents or statements in the proceeding.  However, none of the posts identified them in that capacity.  Nor did the posts, by their terms, permit identification of any of those people as a person affected by the proceeding.
  6. [42]
    The adoption of this strict approach to interpreting the order is warranted, in my opinion, when it is recalled that the making of a non-publication order is, in itself, an exceptional act.  In this Tribunal, such an order can only be made if the Tribunal considers it necessary for one or more of the reasons stated in s 66(2) of the QCAT Act, one of which is to avoid interference with the proper administration of justice.  If the Tribunal is not satisfied that a non-publication order is necessary, as opposed to some lesser discretionary standard such as “desirable”, it cannot make such an order. 
  7. [43]
    Moreover, a non-publication order is exceptional for two reasons of policy:
    1. (a)
      it acts as a fetter on a person’s right of free speech; and
    2. (b)
      it infringes on the principle of open justice by which the Tribunal is generally bound to operate.[15]
  8. [44]
    The following observations by President Alan Wilson J in Cutbush v Team Maree Property Service (No 3) are apposite:[16]

[8] Although QCAT’s discretion to grant a non-publication order is created by statute, the discretion is underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts. This principle applies in cases where the information has already been published, or not.

[9] Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the courtroom, unless there is some material before the court to show that it is reasonably necessary to prohibit the publication. The onus is on the applicant to show special circumstances justifying the making of the order.

[10] Where the publication concerns identification of parties or persons affected by proceedings, the mere fact that the publication may produce “embarrassment or unfortunate financial effects” is generally not a sufficient reason to prohibit publication, especially if the names have already been published.

  1. [45]
    The strictness of approach for present purposes is also, of course, dictated by the fact that these are contempt proceedings which ultimately invoke penal consequences if a contumelious contravention be found to have occurred.
  2. [46]
    There is no doubt that Mr Cutbush was responsible for publications on “Bandit’s Blog” which named individuals and that these were also people who were affected by the proceeding. But mentioning the names of those people could not, without more, constitute a contravention of the non-publication order. In order to contravene the terms of the non-publication order, a post needed to be in such terms as to identify or enable identification of any of those people as “a person who has appeared before the Tribunal or is affected by the proceedings, including Council officers and others [sic] persons who provided or prepared documents”. 
  3. [47]
    None of this is to say that the persons named by Mr Cutbush might not have had other remedies available to them at law as a consequence of the publications.  But that is not the question for present purposes.
  4. [48]
    On a strict reading of the terms of the non-publication order made on 11 May 2018, I am not persuaded beyond reasonable doubt that any of the publications under Incidents One, Two, Three, Four, Seven, Nine, Ten or Twelve contravened that order.

Tending to interfere with the administration of justice?

  1. [49]
    I am, however, persuaded to the requisite standard that the twelve impugned incidents individually and in combination were contemptuous of the Tribunal for their tendency to interfere with the course of justice. 
  2. [50]
    The final hearing in GAR325-17 was conducted on 8 October 2018.  Each of the impugned incidents occurred between the handing down of the reasons for the non-publication order and the final hearing.  It is clear beyond peradventure that the conduct comprised in the impugned incidents was of the same nature and character as that which was found to have made a non-publication order necessary in order to avoid interference by Mr Cutbush with the proper administration of justice.  So much is apparent from the learned Member’s reasons quoted above.
  3. [51]
    It should also be recalled that, on the authority cited above, it is not necessary, to sustain a charge of contempt, for it to be proved beyond reasonable doubt that Mr Cutbush intended by any of these incidents to interfere with the due administration of justice.
  4. [52]
    Nor is it necessary for it to be established that any of the incidents in fact interfered with the conduct of the proceedings or with a witness in the proceedings.  As matters transpired, the hearing of the primary proceeding was conducted on 8 October 2018 and the decision delivered on 28 March 2019.
  5. [53]
    The question, rather, is whether the conduct comprised in the incidents was pressure brought by one party in such a way as would tend, improperly, to interfere with the opposing party in the proceeding. 
  6. [54]
    I am persuaded beyond reasonable doubt that each of the incidents was marked by such improper tendency:
    1. (a)
      Each of the “Bandit’s Blog” posts for which, as I have found above, Mr Cutbush was responsible, was a public denigration or vilification of persons who were known by Mr Cutbush to be involved in the SRRC’s pursuit of its case in the primary proceeding.  The personally derogatory comments made about the individuals were, as a matter of practical reality, such as to be regarded as improper bullying of each of them.  Such improper bullying clearly presented a real risk of interference with those persons as witnesses.
    2. (b)
      The communication to the employer of [MS] in Incident Five was patently motivated by retribution by Mr Cutbush and carried the tendency to put improper pressure on a person he knew to be a SRRC witness to two of the three incidents which were the subject of the primary proceeding.
    3. (c)
      The communication to Dr Bartholomeusz in Incident Six was obviously an improper attempt to influence the opinion of an SRRC witness.
    4. (d)
      The communication to witness [MJ] in each of Incident Eight and Incident Eleven was overtly threatening, if not bullying, and clearly carried the tendency to interfere with the witness. 
  7. [55]
    In his oral submissions before this Tribunal, Mr Cutbush did not attempt to explain, let alone excuse, any of this conduct.  He certainly did not apologise for any of it.
  8. [56]
    Mr Cutbush sought initially to invoke the fact that he had commenced proceedings in the District Court before proceeding GAR325-17 in this Tribunal was initiated, and that there had been no non-publication order made in the District Court proceeding.  How that excused him from complying with this Tribunal’s order or how it justified his ongoing contumelious conduct between the making of that order and the primary hearing in October 2018 was never explained.
  9. [57]
    Mr Cutbush asserted that there was “no solid foundation for the non-disclosure order”[17] and that he disputed “the validity of the non-publication order”.[18]  These submissions were seemingly founded in an argument that there had been no non-publication order in the District Court.  The non-publication order was made by the Tribunal on 11 May 2018.  Mr Cutbush did not seek leave to appeal against that order.  Mr Cutbush’s opinion as to whether or not the order was valid is irrelevant.  It was an unchallenged, properly entered order of the Tribunal which bound the parties.
  10. [58]
    Next Mr Cutbush argued that, by the reasons for making the non-publication order, the Member had somehow placed improper pressure on Mrs Cutbush who was, according to Mr Cutbush, protected from identification because she was a public servant who had made public interest disclosures.  The Member’s published reasons for making the non-publication order have never been challenged, let alone overturned on appeal.  And in any event, Mr Cutbush gave no explanation as to how this justified his contumelious conduct between May and October 2018. 
  11. [59]
    Mr Cutbush argued that there was no evidence of improper pressure on witnesses[19] and that it could not be said that there was interference because all the witnesses attended the final hearing.[20]  On the legal principles stated above, neither of these contentions provide an answer to the contempt application. 
  12. [60]
    Finally in his oral submissions, Mr Cutbush delivered a lengthy argument directed to his view of the desirability of law reform in the realm of animal management.  None of that had anything to do with the contempt case he was facing. 
  13. [61]
    In short, nothing said by Mr Cutbush in his oral submissions provided any proper answer to the contempt allegations made against him.
  14. [62]
    Accordingly, I find that, in the respects particularised in the application filed on 2 October 2018, it has been proved beyond reasonable doubt that Paul Cutbush acted in contempt of the Tribunal.

Sanction

  1. [63]
    Punishing a person for having committed contempt of a court or tribunal is a serious matter.  It is fundamental to our system of justice that parties are entitled to a fair trial.  Conduct which tends to disrupt or displace that essential fairness is not merely an impediment to parties having a fair trial, it is a direct challenge to the authority of the courts and tribunals charged with the solemn duty to provide and administer a fair trial.  The imposition of a sanction for contempt, therefore, is informed by the public interest in ensuring the fundamental fairness of curial and tribunal proceedings, by the conventional notions of general and personal deterrence, and by the need to impose an appropriate and effective punishment which reflects and is proportionate to the seriousness of the contumelious conduct. 
  2. [64]
    Factors which are relevant to determining an appropriate sanction for contempt include:[21]
    1. (a)
      the seriousness of the contempt;
    2. (b)
      whether the person who committed the contempt was aware of the consequences of what was proposed to be done;
    3. (c)
      the actual or potential consequences of the contempt on the proceedings in question;
    4. (d)
      whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest;
    5. (e)
      the reason or motive for the contempt;
    6. (f)
      whether the person who committed the contempt has received, or sought to receive, a benefit or gain from the contempt;
    7. (g)
      whether there has been any expression of genuine contrition by the person;
    8. (h)
      the person’s character and antecedents;
    9. (i)
      what punishment is required to deter the person and others of like mind from similar conduct; and
    10. (j)
      what punishment is required to express denunciation of contempt.
  3. [65]
    Not all of those factors are apposite to the present case.  In approaching the question of sanction in the circumstances of the present case, it seems to me that the following are the most relevant considerations:
    1. (a)
      Mr Cutbush’s contumelious conduct was very serious.  Even though, for the reasons given above, it did not strictly contravene the terms of the non-publication order, it was a continuation, and indeed an escalation, of the type of conduct which had led to the making of the non-publication order in the first place.  The conduct was extensive and persistent.  It was in the nature of behaviour which was directed to placing pressure on SRRC witnesses in the lead up to the final hearing.
    2. (b)
      Particularly in light of the reasons given for the making of the non-publication order on 11 May 2018, which reasons were provided to Mr Cutbush, the only reasonable inference is that his extended and persistent contumelious conduct was wilful and deliberate.
    3. (c)
      The potential consequences of the contumelious conduct were patently serious.  Interference with witnesses by placing improper pressure on them is objectively a serious matter.  The seriousness is magnified when that improper pressure is sought to be applied publicly by the sort of bullying conduct engaged in here on a public social media forum.
    4. (d)
      Mr Cutbush has demonstrated no insight into the gravity of his conduct.  He has not apologised for it.  He has not expressed any remorse or contrition.
    5. (e)
      Mr Cutbush did not place any material before this Tribunal concerning his antecedents, although he referred on several occasions in argument to having held senior management positions in government and private enterprise.  He presented to the Tribunal as an articulate, albeit obsessively misguided, person.  There is evidence before the Tribunal that he and his wife have recently purchased a property.  Mr Cutbush put no evidence before the Tribunal to suggest that he lacks the capacity to pay a fine. 
    6. (f)
      The aspects of general and personal deterrence loom large in this case.  Persons who, to adopt a contemporary term of art, might be described as “keyboard warriors” on social media platforms need to understand that they are not magically shielded from the reach of the law simply because their contumelious conduct is committed in cyberspace.  A contempt will be punished as such, regardless of whether it was committed personally or virtually.  In terms of personal deterrence, Mr Cutbush’s conduct was characterised by a significant degree of persistence and manifestation of an attitude that he would continue in his bullying conduct because he thought he could get away with it.
  4. [66]
    Counsel for the SRRC submitted that, both for determining the issue of whether contempt had been committed and on the question of sanction, I ought have regard to more recent posts and other activity on “Bandit’s Blog”.  It does not seem to me to be appropriate to do so for a number of reasons:
    1. (a)
      At a formal and technical level, the more recent activity was not particularised as any part of the contempt application brought against Mr Cutbush.
    2. (b)
      The final hearing of the primary proceeding was held in October 2018 and a decision given in March 2019.  Subsequent activity cannot be considered to have interfered with the administration of justice in respect of that decision.
    3. (c)
      Whilst, for the reasons given above, I am satisfied to the requisite standard that Mr Cutbush had control of “Bandit’s Blog” at the time of the contumelious conduct particularised in the contempt application, there is no evidence as to control of the web page at the time of the subsequent activity. 
  5. [67]
    Again, I would observe that none of this is to say that the SRRC or the individuals mentioned in the subsequent posts may not have other rights and remedies available to them, but that is not a relevant consideration on this contempt application. 
  6. [68]
    I should also mention at this point that, at the final hearing, counsel for the SRRC made what amounted to an instanter application for the sanction order to be supplemented by a range of injunctions, the effect of which were to restrain Mr Cutbush from making further publications and to compel him to take down the social media pages on which the offending posts and comments are located.  I am not inclined to accede to that application in the context of the present contempt application for several reasons:
    1. (a)
      There is no evidence of Mr Cutbush having been given any proper and adequate notice that the SRRC would be seeking that injunctive relief.
    2. (b)
      Insofar as Mr Cutbush might be found to have made a publication which actually does contravene the non-publication order, the duration of that non-publication order is, by virtue of the decision made in the primary proceeding on 28 March 2019, limited so as to expire on 28 March 2022.  The injunctive relief sought is permanent, and would cut across that decision by the primary decision maker.
  7. [69]
    Counsel for the SRRC directed me to a number of Queensland cases in which varying forms of contempt had attracted a range of punishments, including incarceration, fines, and community service orders.[22]  Whilst none of those cases are directly comparable to the present, they do indicate the broad range of sanctions which may be imposed, having regard to the seriousness of the contempt and the other relevant circumstances of each case.
  8. [70]
    In weighing up the question of the appropriate sanction to be imposed here, I have had regard to the matters of relevance outlined above. 
  9. [71]
    I do not consider that the imposition of a custodial sentence would be appropriate in this case, having regard particularly to the fact that a significant period of time has now elapsed since the contumelious conduct was committed, and that during the intervening period the final hearing was conducted, a decision made, and all avenues of appeal exhausted.
  10. [72]
    It seems to me, however, that the seriousness of the contempt in this case, the persistence and duration of the conduct, the absence of insight, remorse or contrition, and the public interest in dissuading Mr Cutbush and others from engaging in similar contumelious conduct warrant punishment in the form of a significant fine. In all the circumstances, I have determined that the appropriate sanction against Mr Cutbush for having acted in contempt of the Tribunal is that he be required to pay a fine of $20,000.
  11. [73]
    The SRRC also seeks its costs of the contempt application.  Whilst the general position reflected in s 100 of QCAT Act is that parties to QCAT proceedings ought bear their own costs, s 102(1) expressly confers on the Tribunal the power to award costs “if the Tribunal considers the interests of justice require it to make the order”.
  12. [74]
    This application was brought because of Mr Cutbush’s persistent and repeated conduct in contempt of the Tribunal.  It is self-evidently in the interests of justice that Mr Cutbush be required to pay the SRRC’s costs of the application.
  13. [75]
    It is, moreover, clear that the SRRC should recover its costs on an indemnity basis.  The application was necessitated by Mr Cutbush’s contumelious conduct.  It had to be pursued by the SRRC in the face of Mr Cutbush’s non-compliance with procedural directions and, more fundamentally, a lack of insight into or contrition for his offending conduct.  It was necessary both in the public interest and in protection of the authority of the Tribunal for the application to be pursued by the SRRC.  All of those amount to special circumstances which warrant an order for indemnity costs on the Supreme Court scale. 

A further application by Mr Cutbush

  1. [76]
    On 2 August 2021, after the final hearing of this contempt application had been concluded and while this decision was reserved for consideration, Mr Cutbush filed by email in the Tribunal Registry an interlocutory application which purports to seek an order that the orders made in GAR325-17 on 11 May 2018 be “struck out”.  This application also purports to seek that there be a referral of the SRRC’s solicitors to the Legal Services Commissioner for alleged “misleading behaviour”, described as “litigating based on an Order they knew had evidence integrity issues”.  The material submitted by Mr Cutbush with this interlocutory application contains a range of allegations against the Member who made the decision on 11 May 2018 and the SRRC’s solicitors.  Many of those allegations seem to invoke some claim that the member and/or the solicitors acted contrary to the Public Interest Disclosure Act 2010 (Qld),
  2. [77]
    It is not necessary to attempt to further decipher the supposed grounds of this interlocutory application.
  3. [78]
    The orders in question were made by the learned Member on 11 May 2018.  Leave to appeal against that order was not, and never has been, sought or granted.  There is no basis in the QCAT Act, under the Queensland Civil and Administrative Tribunal Rules 2009, or under the general rules of practice and procedure for Mr Cutbush now to apply summarily for those orders to be “struck out”.  Nor does he identify any such basis. 
  4. [79]
    Nor is it the proper role or function of this Tribunal to act as Mr Cutbush’s post box for the purpose of making referrals to another agency. 
  5. [80]
    Mr Cutbush’s interlocutory application of 2 August 2021 is, therefore, completely misconceived.
  6. [81]
    It is appropriate in the circumstances for the Tribunal to exercise its power under s 47 of the QCAT Act to order, on its own initiative, that the interlocutory application dated 2 August 2021 be dismissed.

Conclusion

  1. [82]
    For the reasons set out above, there will be the following orders:
  1. It is declared that Paul Cutbush has acted in contempt of the Queensland Civil and Administrative Tribunal.
  1. Paul Cutbush shall pay a fine of $20,000 for having committed such contempt.
  2. Paul Cutbush shall pay the Scenic Rim Regional Council’s costs of and incidental to the contempt application filed 2 October 2018, such costs to be assessed on the indemnity basis as if this were a proceeding before the Supreme Court of Queensland.
  3. Pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the application for miscellaneous matters dated 2 August 2021 is dismissed.  

Footnotes

[1]Cutbush v Scenic Rim Regional Council [2019] QCAT 80.

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

[3]Cutbush v Scenic Rim Regional Council [2018] QCAT 139.

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

[5]QCAT Act, s 219(5).

[6]Cutbush v Scenic Rim Regional Council [2018] QCAT 139.

[7](1986) 161 CLR 98, 106.

[8](1965) 112 CLR 483, 489.

[9][2000] WASCA 359.

[10][2010] NSWSC 5.

[11]Affidavit of Erin Kay affirmed 30 November 2018, particularly at [3]-[13].

[12]Cutbush v Scenic Rim Regional Council [2019] QCAT 80, [39].

[13]Harkianakis v Skalkos (1997) 42 NSWLR 22, 60 (Powell JA).

[14]Affidavit of Erin Kay affirmed 2 October 2018 and affidavit of Erin Kay affirmed 30 November 2018.

[15]See, for example, s 90(1) of the QCAT Act. 

[16][2010] QCATA 89, [8]-[10] (and omitting footnotes and citations).

[17]T 1-34.

[18]T 1-35.

[19]T 1-35.

[20]T 1-36.

[21]Australian Securities and Investment Commission v Michalik (2004) 52 ACSR 115, [29].

[22]Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271; Dubois v Rockhampton Regional Council [2015] QPELR 77; Harris v Muirhead [1993] 2 Qd R 527; Paroz v Paroz [2010] QSC 488; Attorney-General (Qld) v Mathews [2020] QSC 258; Madeira v Roggette Pty Ltd [1990] 2 Qd R 357; Attorney-General for the State of Queensland v Di Carlo [2017] QSC 171; Fitness First Australia Pty Ltd v McNicol (No 2) [2013] QSC 329

Close

Editorial Notes

  • Published Case Name:

    Scenic Rim Regional Council v Cutbush

  • Shortened Case Name:

    Scenic Rim Regional Council v Cutbush

  • MNC:

    [2021] QCAT 371

  • Court:

    QCAT

  • Judge(s):

    Justice Daubney, President

  • Date:

    15 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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