Hi all,
This is what I presented to the QLD Supreme Court of Appeal on Friday 18 September 2020.
HH Justice McMurdo confirmed he had read this along with my 36 page Application Affadavit.
Refinement is required for the Court of Appeal by 5 October 2020 and we are heading to Hearing in November 2020.
A stay of the destruction of Bandit decision by QCAT is in place.
The matter is not a "closed Court" so I can update you in detail.
Outline of Argument – Paul Cutbush
18 September, 2020
1. Preliminary:
a. This outline is focused on providing confirmation of both a prima facie cause of action for Appeal of a QCAT Appeal Tribunal Decision and also a justification for the granting of a stay of destruction while the Appeal is heard.
b. Bandit was seized on 11 September 2017 by 4 Scenic Rim Regional Council Rangers and 2 QLD Police Officers after an alleged injury occurred to our neighbour on the joint fence at our 10 acre property in Tamborine, QLD 4270.
c. My Family and I had lived peacefully at this property for 7 years with no issues. The owner went travelling and 10 members of a “family orientated” bikie gang moved in for around 2 years.
d. Our sanctuary turned into a 24 x 7 drug party zone which included car explosions, fires, shotgun casings on our drive and threats to our pets due to their barking along with death threats from Mark Capone.
e. I was employed by QLD Police at that time and requested they (neighbours Stephen McCarthy – Youth Worker, Mark Capone – known Beaudesert Drug Dealer) not take drugs in the street where my kids could see them or I would report them.
f. At one stage they recognised the fact I was driving an unmarked Police car and became very aggressive in the street .Capone who was recognised as a key witness by Member Howard/Gordon then parked his XR8 on a “hungi’ in his drive that was still alight and my Family and I saved their home and occupants from the car explosion by using our house pump to try and extinguish the fire. Around 8 QFES assets attended.Capone was an obvious meth user but was readily accepted as a star witness by QCAT.
g. In summary on 11 September 2017 the neighbour’s dog had entered our property and this resulted in a dog fight in which the neighbour intervened (a blue cattle dog from next door and our red cattle dog pup).
h. There was no investigation of the fence damage by the attending junior Police from Canungra QPS or Council and given the nature of the injury it is obvious the neighbour Bruce Cooper cut his leg badly when he was kicking the colorbond fence. The details in the QCAT judgment do not indicate a dog wound but a metal cut.
i. Earlier minor incidents had occurred in 2017 which the Council deemed as “non serious” and on which they took no action. These were abrasions after provocation of our pets.
j. My Daughters 18 month old pure bred, papered red cattle dog Bandit has now spent 3 years in a 1.2 metre cage at the Council pound. The Council have refused to provide adequate cooling, heating, bedding, visitation, food, sanitation or vet care. The Council have also refused to allow Bandit “any” exercise, privacy or sunlight for the past 3 years and 7 days that he has been held in the Scenic Rim Regional Council alongside a procession of hundreds of cats and dogs.
k. No holistic investigation took place and my Family and I were never interviewed about the incident.
l. In October 2017 the Council (Mark Duncan) decided that Bandit would be declared a “dangerous dog” and as per the QLD Animal Management Cats and Dogs Act 2008 allowed the respondent to provide a response within a specific timeframe as per the Legislation.
m. This timeframe was never extended by the Council and the Respondent provided the detailed response within the required timeframe. The response was in relation to a “dangerous dog” declaration.
n. The Act is very clear that a “declaration” must be made once a response is received from the respondent. If not this is a case of “mandamus”.
o. Instead the Council sought further evidence with an assessment by Cam Day after Bandit had already been held in disgraceful conditions and poled, transferred, provoked for 6 weeks and the response deadline for the had expired.
p. The Council advised in their “internal review” of the decision that Mark Duncan, Ranger had recommended he be declared a “dangerous dog”.
q. However on having further evidence “scared up” weeks after the required cut off detailed in the Act and while being out of time the Council then changed the decision to destruction.
r. This came after an expert detailed that Bandit either be destroyed or the owners build a large fence.
s. The Council made a decision based on a lack of impartiality and a bias towards my complaints against the “investigating” Ranger in 2011 that I would not comply so Bandit “must be destroyed.
t. Bandit never killed or wounded an animal or human seriously.
u. To date the Scenic Rim Regional Council have spent over $175,000 in legal fees on this matter as confirmed in QCAT.
v. QCAT heard the matter and in summary agreed with the Councils decision because of my ongoing litigation and request for adjournment.
w. Member Howard and Member Kanowski featured.
x. The QCAT President also influenced the decision as he became involved
2. Why this Application should be granted:
a. The Mareva Order QLD Supreme Court Practice Directions clearly state what is required to justify the granting of this “freezing order”.
b. As per UPCR it is critical that property is not destroyed, sold etc. while a matter is being heard.
c. The destruction of Bandit while the matter is at a requested Appeal is prejudicial and potential contempt
d. It should be noted that even though the Act clearly states the “decision maker” should assist QCAT that it took the Council over 12 months to supply the evidence which resulted in this protracted issue.
e. The original senior Council executive who commenced the campaign of refusing to provide evidence to the Applicant or QCAT was terminated by the Council for maladministration.
3. Why an Appeal is needed:
a. Some examples of why an Appeal is needed include a Prima Facie summary of a genuine cause of action against the QCAT Appeal Tribunal Decision and the original Decision of Member Howard.
4. Errors of fact:
5. Change:
a. QCAT failed to understand the significant change in our neighbour environment and the provocation of our pets.
b. There has been significant change since Bandit was seized. These changes were not taken into account by the QCAT Appeal Tribunal. The Final Decision was made close to 2 years 10 months after the first incident in February 2017.
c. These changes included my Family and I selling our house, relocating and purchasing the required “dangerous dog” pen. It also included an acceptance by myself as the Father of the child owner at that time to comply with the required requirements of a “dangerous dog” declaration and have Bandit attend specialist training.
d. These actions display a focus on compliance and public safety that at no time mentioned or used in the final decision.
6. Ownership:
a. The most significant change that was not taken into account by the QCAT Appeal Tribunal was the ongoing heavy reliance by the decision makers on my alleged lack of focus on compliance by the Council and QCAT Member Howard/Gordon to justify the only option e.g. destruction. In fact I am no longer the Owner as my Daughter is now 18 years old as at 10 April 2020 and the relevant paperwork has been lodged with Council. Effectively, the comments that were used to justify that Bandit “must” be destroyed are not supported as I am no longer the Registered Owner.
b. Member Howard without even hearing my evidence in person formed a view that I was a “problem” and in many ways the Judgment displays that as most of it is his view of myself.
c. It has been one of the most disturbing assumptions of this saga as I am a former Director NSW Attorney Generals Department, Courts and Tribunals and as I detailed to the QCAT Appeal Tribunal have held senior executive roles with Qantas, Air NZ, NZ Dept. of Corrections, QLD Corrective Services and QLD Police. These are mission critical and high risk safety and compliance environments.
7. Age:
a. A further change documented by the infrequent Council Vet visits and reports is Bandit has relaxed a little given the terrible facility he is housed in. There have been no incidents since he was seized 3 years and 7 days ago. A “good behaviour” approach should have been adopted instead of working on outdated data and stories. There has been no attempt at allowing rehabilitation.
8. Natural Justice Issues:
1. Member Howard/Gordons decision is littered with “I accept that evidence” from the 16 Council witnesses who attended the hearing. This hearing was conducted even though the Applicant advised that his key witness (My Daughter) was unable to give evidence as she was under specialist care, I was engaging a new Lawyer and Barrister, I had death threats from the neighbours etc.
2. Member Gordon/Howard was fully aware that I had been legally represented from the outset.
3. I lodged an injunction with QCAT for an adjournment which was not managed by a Judicial Member which is a requirement in the QCAT Act.
4. Amazingly a Hearing went ahead without the Applicant and my witnesses.
5. The Hearing also failed to follow QCAT protocol in relation to expert evidence and accepted Cam Days evidence even though the Ranger Mark Duncan filmed events in the Pound. This included Cam Day (the expert) dressing up, poking Bandit with a doll etc.
6. Some of the glaring errors that display a lack of a robust investigation of facts include his acceptance that the fence damage was not man made (even though QLD Police attended and agreed on vandalism), it wasn’t foggy on the day Daryl Simonds claims he was nipped (even though I have photos etc. etc. )
7. On the Owner requesting a “re opening” which cost me around $15,000 with a distinguished Sydney Barrister that Application was totally ignored by QCAT.
8. Furthermore the provocation and unlawful behaviour of trying to kill Bandit with a pitch fork and shiv (as detailed in the Member Howard Decision) are not even mentioned.
9. The RSPCA confirmed to me it is illegal.
10. The detailed timelines etc. prepared by myself and my Barrister were not even reviewed by the QCAT Appeal Tribunal.
9. Errors of law:
10.QCAT Case Law:
a. The QCAT Appeal Tribunal failed to assess or calibrate the sentence of destruction against its own “case law”. Specifically the QCAT matter in 2017/2018 where the owners (Balen) dog killed a cat. QCAT advised in their decision to not support a Council destruction order that it was based on the owners GP who said he couldn’t be destroyed as it would impact the owner’s mental health.
b. As per the attached Annexures PC-1 made it very clear to QCAT and the Council xxxxxxx (personal information)
11.Failure of SRRC to comply with the Act:
a. The QCAT Appeal Tribunal failed to understand that the Councils lack of compliance with the QLD Animal Management (Cats and Dogs) Act 2008 S 94 (2) contributed to the escalation of the neighbour’s behaviour towards Bandit and his Family.
b. In fact Member Gordon in his final decision fails to detail how the Council were allowed to flaunt this requirement and seek further evidence when “out of time”.
c. Of the 3 incidents the Council only took action on the third and then claimed retrospectively that the other 2 were then serious.
d. The Council took no action after the first two incidents as they obviously saw them as petty.
e. The mismanagement of the 3 incidents resulted in the flawed seizure and destruction order of Bandit.
f. The Act is very clear that the focus is on the owner but at no time between February and November was any Declaration made by Ranger Kylie Addy
g. The Council are liable for the damage and suffering to Bandit and my Daughter due to their failure to comply with the Act.
h. An alternative path would have been a “declaration” of Bandit in February 2017 as “menacing” which would have alerted me to the fact the Council took the matter seriously.
i. Instead the Council did nothing and then the Investigating Ranger, Ms Addy was gagged. Ms Addy even though she had carriage of the matter throughout 2017 to this date has not provided any affidavit or response.
12.Conclusion:
a. A request for an Order that visitation and exercise of Bandit is made available to the Registered Owner urgently. This is available at the rear of the Council facility.
b. A stay of destruction must be granted while the Appeal is heard. The Council now appear to be in a rush to destroy him but have held him for 3 years 7 days in unlawful conditions.
c. The Applicant will provide further information as to why the delays have occurred in lodging the Appeal.
d. Much of this is due to the Council Lawyers ongoing interference with timelines by lodging the QCAT “contempt application” due to Facebook postings.
e. It should be noted this Appeal action was lodged in February 2020 but was rejected by the Registry.
f. He was seized at 18 months and was used to 3-4 km runs and swims a day.
g. We also noted in one visit that his eyesight has been impacted as he is kept in dark conditions 24 x7.
h. Given the above Bandit will be an “inside dog” on his return and we request the Courts compassion in this terrible injustice.
i. The Animal Management Act has to be transformed as this can’t be allowed to happen to another pet in QLD.
j. The treatment of Bandit by the Council is tantamount to torture.
k. Finally we don’t expect that Bandit will be able to walk or run when released and he will be an “inside dog’
l. PRIVATE
m. Bandit needs to come home as he has been tortured now for 3 years 7 days.
Regards
Paul Cutbush and Bandits Family