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Cutbush v Scenic Rim Regional Council[2019] QCATA 25

Cutbush v Scenic Rim Regional Council[2019] QCATA 25

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Cutbush v Scenic Rim Regional Council [2019] QCATA 25

PARTIES:

PAUL CUTBUSH

(applicant\appellant)

v

THE SCENIC RIM REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

APL105-19

MATTER TYPE:

Appeals

DELIVERED ON:

11 September 2019

HEARING DATE:

30 August 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Richard Oliver

ORDERS:

The time for the applicant to file the application for leave to appeal or appeal is extended to 1 May 2019

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – application for extension of time to file application for leave to appeal or appeal – where Tribunal upheld the respondents dangerous dog declaration and destruction order – where the applicant seeks to appeal that decision – where the applicant filed an application for leave to appeal or appeal five days late – whether an extension of time should be granted – whether satisfactory explanation for delay – whether interests of justice warrant an extension of time.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 61(3), s 93, s 142

Animal Management (Cats and Dogs) Act 2008 (Qld) s 102.

Reeve v Hamlyn [2015] QCATA 133, [36]

Cutbush v Scenic Rim Regional Council [2019] QCAT 80, [73], [200]-[215].

Appearances:&

No appearance for the applicant

Respondent

J Dillon of counsel, instructed by King & Co

REASONS FOR DECISION

  1. [1]
    Mr Cutbush is the owner of a dog known as Bandit. On 27 November 2017 the Scenic Rim Regional Council (‘the Council’) confirmed the dangerous dog declaration and destruction order made by the Council on 6 November 2017.
  2. [2]
    Mr Cutbush sought a review of that decision in QCAT, which was heard on 8 October 2018. The decision delivered on 28 March 2019 confirmed the Council’s decision that Bandit should be destroyed. On 1 May 2019, Mr Cutbush filed an application for leave to appeal or appeal pursuant to s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). By virtue of the time limit prescribed by s 143(3) of the QCAT Act, the application should have been filed by 26 April 2019.
  3. [3]
    Section 61(1)(a) of the QCAT Act allows the Tribunal to extend a time limit. Curiously, Mr Cutbush filed an application to extend a time limit on 25 April 2019, prior to the deadline for filing the application for leave to appeal or appeal. The given reason for the proposed late filing was that the Easter and Anzac public holidays impacted his ability to finalise the appeal application. He filed written submissions in support of his application for an extension of time on 4 June 2019, referring to communications with the Tribunal Registry prior to filing the appeal application and stating that the ‘Council and QCAT were fully aware that I was Appealing and I had issues with getting to Brisbane and also being able to print along with the cost of lodging’.
  4. [4]
    The application for an extension of time was opposed by the respondent. In written submissions filed on 12 June 2019, the respondent gave four reasons for opposing that application. First, there was no adequate explanation for the delay. Second, the prospects of the applicant succeeding on appeal ‘are poor’, there being no denial of procedural fairness as alleged and given that the other grounds of appeal merely ‘amount to complaints that the Tribunal found against Mr Cutbush in terms of an assessment of his credit, and material facts’. Third, the welfare of the dog is best served by a prompt resolution of the proceedings, given the conditions in which it is held. Fourth, throughout the proceedings the applicant has caused delay and expense to the respondent.
  5. [5]
    The application for an extension of time was set down for an oral hearing on 30 August 2019. Despite being given leave on 28 August 2019 to attend that hearing by telephone, Mr Cutbush failed to appear. Three attempts were made to contact him at the phone number he provided. On each occasion the call went to his voicemail. Nevertheless, the hearing proceeded in accordance with s 93 of the QCAT Act, the Tribunal being satisfied that notice of the hearing had been given and that reasonable attempts had been made to contact him.
  6. [6]
    The principles applicable to an application for an extension of time are well settled.  They are:
    1. (a)
      the extent of the delay and whether there is a satisfactory explanation for the delay;
    2. (b)
      the merits of the application and prospects of success;
    3. (c)
      the likelihood of prejudice to other parties; and
    4. (d)
      whether the extension of time is in the interests of justice.[1]
  1. [7]
    The delay in the present case is not significant. Also, Mr Cutbush made clear his intention to appeal by filing within the prescribed 28 days an application for an extension of time to lodge that appeal. It is not clear why he did not simply file the appeal application on that day. It might be that he believed that a full exposition of his grounds of appeal had to be provided. It is the case that with his appeal application filed on 1 May 2019, he filed a 37-page document that detailed his various grounds of appeal. While he does not explain how the Easter and Anzac public holidays impacted his ability to finalise the appeal application, the supporting documents indicate a good deal of work in preparing the appeal.
  2. [8]
    In relation to the merits of the application, Mr Cutbush is not legally represented and the precise grounds of appeal, and the submissions made in support, are not altogether clear. As submitted by the respondent, to some extent it appears that he is simply seeking to challenge findings made by the Tribunal at first instance in relation to credit and the facts. However, given the seriousness of the issue at stake, in our view Mr Cutbush should be given the opportunity at an oral hearing to more clearly set out his grounds of appeal and his case as to why the appeal should be allowed.
  3. [9]
    In relation to prejudice, the respondent refers to the fact that the dog was seized in September 2017 and has been held by the Council in a confined enclosure since that time. It is submitted that the conduct of Mr Cutbush during the course of the review application process has unnecessarily delayed the outcome for Bandit. While it is the case that the respondent will be put to additional cost by virtue of any further delay, that can be remedied by an appropriate order of the Tribunal.[2] In addition, there is concern that Mr Cutbush may seek to interfere with witnesses who have provided evidence adverse to his case. Although this may be a genuine concern for the Council, there is no compelling evidence to support this contention.
  4. [10]
    As to whether the extension of time is in the interests of justice, an object of the QCAT Act is ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’.[3] In that context, the respondent refers to the adverse findings of the Tribunal at first instance in relation to the conduct of Mr Cutbush, including in relation to delay and a lack of respect for Council officers and the Tribunal processes.[4] Against that, there is a right of appeal and, in our view, to deny that right in all of the circumstances of this case would not be in the interests of justice.
  5. [11]
    In the circumstances, we consider that Mr Cutbush should be granted an extension of time to file the Application for Leave to Appeal or Appeal until 1 May 2019.
  6. [12]
    However, given the history of this matter and for the welfare of Bandit we will make separate directions for the expeditious conduct of the appeal.

Footnotes

[1]Reeve v Hamlyn [2015] QCATA 133 at [36] (footnotes omitted).

[2]QCAT Act, s 61(3). See, also, Animal Management (Cats and Dogs) Act 2008 (Qld), s 102.

[3]QCAT Act, s 3(b).

[4]Cutbush v Scenic Rim Regional Council [2019] QCAT 80, [73], [200]-[215].

Close

Editorial Notes

  • Published Case Name:

    Cutbush v Scenic Rim Regional Council

  • Shortened Case Name:

    Cutbush v Scenic Rim Regional Council

  • MNC:

    [2019] QCATA 25

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Richard Oliver

  • Date:

    11 Sep 2019

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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