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Cavanagh v Gollschewski

Cavanagh v Gollschewski

Case [2022] QCATA 166 1 December 2022

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cavanagh v Gollschewski & anor [2022] QCATA 166

PARTIES:

ISAAC CAVANAGH

(applicant/appellant)

v

DEPUTY COMMISSIONER STEPHEN GOLLSCHEWSKI

(first respondent)

And

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

APL133-21

ORIGINATING APPLICATION NO/S:

OCR159-20

MATTER TYPE:

Appeals

DELIVERED ON:

1 December 2022

HEARING DATE:

25 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1. The appeal from the decision of the Tribunal of 28 April 2021 is allowed under s 146.

2. Leave granted to the appellant to appeal from the decision of 28 April 2021 under s 147.

3. Any further submissions in writing by either respondent be sent to the associate to the Deputy President of the Tribunal and the other parties by email on or before 9 December 2022.

4. Any submissions in writing in reply by the appellant be sent to the associate to the Deputy President of the Tribunal and the respondents by email on or before 16 December 2022.

5. The appeal under s 147 will be decided on the papers after any submissions in writing are received.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION - DISCIPLINE AND DISMISSAL – QUEENSLAND – determination of sanction – psychiatric condition as mitigating factor – requirements for – whether error in disregarding – whether discretion as to sanction to be exercised afresh

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147

Police Service Administration Act 1990 (Qld) s 7.1

Compton v Stewart [2010] QCAT 384
Flanagan v Gee [2020] QCAT 36
LCK v Health Ombudsman [2020] QCAT 316
Lee v Crime and Corruption Commission [2020] QCA 201
Legal Services Commissioner v Yarwood [2015] QCAT 208
Queensland Police Service v Compton [2011] QCATA 246
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, (2007) 27 VAR 1
R v Goodger [2009] QCA 377
R v Verdins (2007) 16 VR 269

APPEARANCES & REPRESENTATION:

Applicant:

C Gnech solicitor.

Respondents:

M Nicolson instructed by the Queensland Police Service Solicitors Office for the first respondent

J Rodriguez legal officer for the second respondent.

REASONS FOR DECISION

The first respondent took disciplinary proceedings against the appellant, a police officer, which resulted in a finding of misconduct against him, and a decision that he be dismissed from the Queensland Police Service. The appellant applied to the Tribunal to review the decision to dismiss him from the Service, but on 28 April 2021 a Member confirmed the decision to dismiss him from the service. On 12 May 2021, the appellant filed an application for leave to appeal or appeal from the decision of the Tribunal.
The appellant is entitled to appeal to the Appeal Tribunal on a question of law, but requires the leave of the Appeal Tribunal to appeal on a question of fact, or of mixed fact and law.[1] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cavanagh v Gollschewski

Details

AGLC: Cavanagh v Gollschewski [2022] QCATA 166
Case: [2022] QCATA 166
Decision Date: 1 December 2022

CaseChat Overview and Summary

In Cavanagh v Gollschewski, the respondent, a police officer, faced disciplinary proceedings following allegations of misconduct. The matter was referred to the Civil and Administrative Tribunal of Queensland, which ultimately decided to terminate the respondent’s employment. The respondent appealed against this decision, arguing that the Tribunal had erred in disregarding a psychiatric condition as a mitigating factor and that the Tribunal’s discretion to determine the appropriate sanction should be exercised afresh.

The court was required to determine whether the Tribunal had correctly considered the psychiatric condition as a mitigating factor and if the discretion to determine the sanction should be exercised afresh. It was necessary to examine the Tribunal's process in weighing the mitigating factor and the appropriateness of its decision.

The court held that the Tribunal had erred in not properly considering the psychiatric condition as a mitigating factor. The court found that the Tribunal had failed to adequately assess the impact of the condition on the respondent's capacity to understand and adhere to the standards of professional conduct. Consequently, the court concluded that the Tribunal's discretion to determine the appropriate sanction should be exercised afresh. The appeal was allowed, and the matter was remitted to the Tribunal for reconsideration of the sanction.

The orders of the court included allowing the appeal, granting leave to the appellant to appeal from the decision of 28 April 2021, and setting deadlines for further written submissions from both parties. The court also directed that the appeal under s 147 would be decided on the papers after any submissions in writing were received.

Orders

Orders of the court

1. The appeal from the decision of the Tribunal of 28 April 2021 is allowed under s 146.

2. Leave granted to the appellant to appeal from the decision of 28 April 2021 under s 147.

3. Any further submissions in writing by either respondent be sent to the associate to the Deputy President of the Tribunal and the other parties by email on or before 9 December 2022.

4. Any submissions in writing in reply by the appellant be sent to the associate to the Deputy President of the Tribunal and the respondents by email on or before 16 December 2022.

5. The appeal under s 147 will be decided on the papers after any submissions in writing are received.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cavanagh v Gollschewski [2022] QCATA 166

Most Recent Citation

Cavanagh v Gollschewski (No 2) [2023] QCATA 36

Cases citing this decision · 1 of 1 shown

Cavanagh v Gollschewski (No 2)
[2023] QCATA 36 Para 1

…t the confirmation of a disciplinary decision by the Tribunal, and granted leave to appeal so that the appeal could be conducted by way of rehearing: [2022] QCATA 166. The sanction imposed by the first respondent and confirmed by the Tribunal was to dismiss the appellant from the Queensland Police Service. I held t…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Campbell v Queensland Building and Construction Commission
[2021] QCATA 34 Para 2

…ruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. [3] Craig v Mark Kelada Auto Sellers [2016] QCATA 48 at [13].…
Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee
[2020] QCA 201 Para 2

…of dismissal was always required in such a case, which was an error of law.[5] [4]Reasons [25], [36]. [5]Citing Lee v Crime and Corruption Commission [2020] QCA 201 at [46].…
LCK v Health Ombudsman
[2020] QCAT 316 Para 2

…of law by the Member to follow it. [10] R v Goodger [2009] QCA 377 at [21]. See generally the decisions discussed in LCK v Health Ombudsman [2020] QCAT 316 at [36] – [40].…
Flanagan v Gee
[2020] QCAT 36 Para 2

…overpowering influence sufficient to militate a conscious awareness of the behaviour.” For this proposition, the Member cited Flanagan v Gee [2020] QCAT 36 at [102], [103]. In that matter, a different Member dealt with a submission, that the effect of the officer’s mental health condition reduced his moral culpa…
Pivovarova v Michelsen
[2019] QCA 256 Para 1

…e appeal becomes one by way of rehearing. In those circumstances, I can re-exercise the discretion as to sanction myself. [12] Pivovarova v Michelsen (2019) 2 QR 508 at [9].…
Crime and Corruption Commission v Lee
[2019] QCATA 38 Para 2

…QCAT Act s 146. [1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142. [2] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. [3] Craig v Mark Kelada…
Craig v Mark Kelada Auto Sellers
[2016] QCATA 48 Para 2

…late authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. [3] Craig v Mark Kelada Auto Sellers [2016] QCATA 48 at [13].…
Legal Services Commissioner v Yarwood
[2015] QCAT 208 Para 3

…ing even if they were not a cause of the offending at all. In the context of disciplinary proceedings, in Legal Services Commissioner v Yarwood [2015] QCAT 208 at [79] the Hon J B Thomas QC proposed that one requirement for the application of the Verdins principle be that “the conduct would not have occurred had i…
Compton v Deputy Commissioner Ian Stewart Queensland Police Service
[2010] QCAT 384 Para 1

…They appear to be inconsistent with the reasoning in Lee v Crime and Corruption Commission [2020] QCA 201 and with the reasoning in Compton v Stewart [2010] QCAT 384. They also appear to disregard the effect of the appellant’s mental health issues on culpability and deterrence, a matter considered separately below…
R v Goodger
[2009] QCA 377 Para 2

…e of a mitigating factor on the Verdins principle, and is not good law. It was an error of law by the Member to follow it. [10] R v Goodger [2009] QCA 377 at [21]. See generally the decisions discussed in LCK v Health Ombudsman [2020] QCAT 316 at [36] – [40].…
Quinn v Law Institute of Victoria
[2007] VSCA 122 Para 2

…an appropriate sanction in the light of all relevant matters.[8] [7]It comes from the decision of Maxwell P in Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, (2007) 27 VAR 1, at [31], a case involving disciplinary proceedings against a lawyer, where the Court of Appeal actually reduced the penalty imposed…
R v Verdins
[2007] VSCA 102 Para 1

…the prognosis was reduced: [22]. [9]Reasons, citing Quinn ( supra ) at [36], [38]. This is referred to as the Verdins principle, from R v Verdins (2007) 16 VR 269 at [32].…
[2011] QCATA 246
[2011] QCATA 246 Para 2

…inst a lawyer, where the Court of Appeal actually reduced the penalty imposed by the Tribunal. [8]See for example Queensland Police Service v Compton [2011] QCATA 246 at [29], [38].…

Legislation cited in this decision · 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
142, 146 2 mentions (from Para 2)
Police Service Administration Act 1990 (Qld)
7.1 1 mention (from Para 1)