Electrical Licensing Committee v Shi

Case [2025] QCATA 97

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Electrical Licensing Committee v Shi [2025] QCATA 97

PARTIES:
ELECTRICAL LICENSING COMMITTEE

(applicant/appellant)

v
HONGWEI SHI

(respondent)

APPLICATION NO/S:

APL331-23

ORIGINATING APPLICATION NO/S:


OCR331-21

MATTER TYPE:

Appeals

DELIVERED ON:

23 October 2025

HEARING DATE:

22 April 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The appeal is allowed.

2.     The decision in proceeding OCR331-21 dated 15 September 2023 is set aside.

3.     The matter is remitted for reconsideration according to law and in accordance with these reasons with such additional evidence as the Tribunal may consider appropriate.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant contended errors of law occurred in the conduct of the proceeding – where parties had not prepared to discuss grounds of disciplinary action and member rejected application to adjourn to prepare submissions – where member failed to consider whether respondent should be disqualified from being a qualified technical person – where member failed to make necessary order cancelling the respondent’s licence before ordering the respondent’s disqualification – where member took irrelevant matter into account in determining sanction – appeal allowed

Electrical Safety Act2002 (Qld), s 4, s 5, s 109, s 114, s 115, s 117, s 120, s 121, s 167, s 172
Electrical Safety Regulation 2013 (Qld)

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20, s 28, s 142, s 146, s 147

Cachia v Grech [2009] NSWCA 232
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Queensland Building & Construction Commission v Whalley [2018] QCATA 38
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Wilkie v Councillor Conduct Tribunal [2022] QCAT 79

APPEARANCES & REPRESENTATION:

Applicant:

Mr B McMillan instructed by Office of Industrial Relations

Respondent:

Self-represented

REASONS FOR DECISION

What is this appeal about?

  1. Mr Shi was the holder of an electrical work licence and an electrical contractor licence. Mr Shi undertook electrical work at two residential properties. The Electrical Licensing Committee (‘ELC’) carried out an investigation and decided that Mr Shi’s work was defective and constituted grounds for taking disciplinary action against Mr Shi. The ELC also made decisions:

    (a)Cancelling Mr Shi’s electrical worker licence, disqualifying him from holding an electrical work licence for 5 years, and disqualifying him from being a Qualified Technical Person (‘QTP’) for 5 years; and

    (b)Cancelling Mr Shi’s electrical contractor licence, disqualifying him from holding an electrical contractor licence for 5 years, and imposing a penalty of $2,000 to be paid within 3 months.

  2. Mr Shi applied to have the Tribunal review the decisions. The Tribunal set aside the decisions, with the exception of the imposition of the monetary penalty, and imposed different sanctions.

  3. The ELC…

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Details
AGLC
Electrical Licensing Committee v Shi [2025] QCATA 97
Case
[2025] QCATA 97
Decision Date

CaseChat Overview and Summary

The appellant, Electrical Licensing Committee, appealed a decision of the Queensland Civil and Administrative Tribunal (QCAT) in relation to disciplinary action against the respondent, Mr Shi. The primary issue in the appeal was whether the QCAT erred in its decision by failing to properly consider certain factors and taking irrelevant matters into account when determining the appropriate disciplinary sanctions. The appeal was heard by the Queensland Civil and Administrative Tribunal Appeal (QCAT Appeal), which was required to determine whether the QCAT made any errors of law that warranted the appeal being allowed.

The QCAT Appeal found that the QCAT had indeed made errors in the conduct of the hearing and in its final decision, which amounted to errors of law. Specifically, the QCAT failed to consider whether Mr Shi should be disqualified from being a qualified technical person, did not make the necessary order cancelling Mr Shi's licence before ordering his disqualification, and took irrelevant matters into account when determining the sanction. The QCAT Appeal also considered the appellant's application to adduce further evidence on the appeal, which was ultimately rejected as the evidence could have been obtained with reasonable diligence at the time of the original hearing.

Based on these findings, the QCAT Appeal allowed the appeal, set aside the QCAT's decision, and remitted the matter back to the QCAT for reconsideration according to law and in accordance with the reasons provided by the QCAT Appeal. The QCAT was also permitted to consider any additional evidence it deemed appropriate. The QCAT Appeal found that it would be preferable for the original member to undertake the rehearing due to their familiarity with the matter.

The final orders of the QCAT Appeal were that the appeal was allowed, the decision of the QCAT was set aside, and the matter was remitted for reconsideration according to law and in accordance with the reasons provided by the QCAT Appeal. The QCAT was permitted to consider any additional evidence it deemed appropriate, and it was preferable for the original member to undertake the rehearing.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision in proceeding OCR331-21 dated 15 September 2023 is set aside.

3. The matter is remitted for reconsideration according to law and in accordance with these reasons with such additional evidence as the Tribunal may consider appropriate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant identifies ten grounds of appeal. The appellant conveniently groups the grounds as follows:(a)The proceeding miscarried – grounds 1, 2 and 3;(b)The learned member failed to make the required decision – grounds 6 and 9;(c)The learned member misconstrued s 109 of the ES Act – grounds 4 and 7;(d)The learned member made a factual finding unsupported by the evidence – ground 5;(e)The disciplinary orders made were manifestly inadequate – grounds 8 and 10.Application to adduce fresh evidence In the reasons for decision, the learned member stated:Another issue which I found a little bit concerning is during the hearing, on a number of occasions, I asked the committee whether there were any training courses that could be undertaken to assist Mr Shi. And Mr Sparks advised the tribunal that the best experience was experience on the job. And I note from some of the disciplinary actions and sanctions that audits were ordered and further training. I just say that in passing, as I would have liked to have discussed these possibilities at length with the committee and Mr McMillan[13] and Mr Shi. Mr Shi he says he is prepared to do further training, if his licences were to – if he was to have licences. And I believe the sanctions imposed by the committee are harsh and not in step with some of the other sanctions that were imposed. I believe some leniency should have been provided to Mr Shi, given his undertaking that his other work was good and he is prepared to undertake further training or work with an experienced electrician. (emphasis added) [13]Counsel for the appellant. The additional evidence sought to be adduced by the appellant is an affidavit by Greer Novak, the Principal Advisor of Electrical Licensing, a unit of the Electrical Safety Office (‘ESO’). Relevantly, Ms Novak attests to the following:(a)There are four training courses which the ELC typically requires electrical licence holders to complete following disciplinary findings;(b)A person in the position of Mr Shi would be unable to undertake two of the courses as each course requires the person to be the holder of a current electrical work licence;(c)In respect of the other two courses, whether a person in the position of Mr Shi would be able to undertake the courses would depend on whether the Registered Training Organisation delivering the units required the person to complete electrical work in the workplace to gather evidence for competency. The appellant says that the further evidence is relevant if the appeal is decided by way of rehearing. Section 147(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that if an appeal is on a question of fact or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal. In Helu v Yuan[14] (‘Helu’) the Appeal Tribunal considered the issue of admitting further evidence upon a rehearing pursuant to s 147(2) of the QCAT Act:[14][2023] QCATA 12.[35] In Queensland Vedic Cultural Centre Pty Ltd v Lal the QCAT Appeal Tribunal considered the meaning of ‘additional evidence’ in the context of the appeal provisions in the QCAT Act appeal and stated:[31] The reason why the Appeal Tribunal is able to admit additional evidence is to avoid a miscarriage of justice. It is well understood however, that if the evidence would have been available with reasonable diligence at the time of the hearing then there is no miscarriage of justice for it not to be considered....[35] It can be seen that (the QCAT Act) reopening provisions closely reflect the common law principles which are relevant to appeals as set out above. Paragraph (b) of the definition of reopening ground reflects the requirement that the evidence was not available with reasonable diligence at the time of the hearing and admission of the additional evidence is required to avoid a miscarriage of justice. Section 139(4)(b) reflect the requirement that a reopening will ‘effectively or conveniently’ deal with the reopening ground. An example of where it is probably not effective or convenient to do that is where the tribunal has made an assessment of uncertain future events as explained in Mulholland v Mitchell.[36] The affinity of the appeal and reopening provisions can also be seen from the way they interact in the QCAT legislation. An application to reopen and an application to appeal or for leave to appeal cannot both continue at the same time.[37] It is also provided that the Appeal Tribunal can convert an application to appeal or for leave to appeal into an application to reopen if it discloses a reopening ground more effectively or conveniently dealt with in this way. In practice, appeals are often converted to reopening applications in this way – but inevitably some appeals which could have been converted will be missed, or there may be appeals like this one which include other grounds of appeal which cannot be dealt with as an application to reopen.[38] It is clear that for the sake of consistency, when hearing an appeal in which there is an application to admit additional evidence, the Appeal Tribunal is guided by the statutory provisions applying to reopening applications.[39] When considering whether the Appeal Tribunal can effectively or conveniently deal with the admission of the additional evidence, it would be noted that the Appeal Tribunal may either hear the evidence and allow the appeal on that basis, amending the decision or substituting its own, or it can remit the matter to the tribunal for consideration. In deciding what to do, the Appeal Tribunal would recognise that the appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts, so it will often be the case that if the additional evidence is admitted it would result in remission of the matter back to the tribunal for rehearing.[36] I agree generally with the approach in Queensland Vedic Cultural Centre Pty Ltd v Lal. While the Appeal Tribunal has an overriding discretion to permit additional evidence in order to prevent a miscarriage of justice, the fact that the evidence may of itself have had an important impact on the result at first instance does not mean that in every case such evidence will be permitted to be adduced in a rehearing. The Appeal Tribunal will consider a range of factors including the factors usually considered in an application to adduce new evidence on appeal. One of these factors is whether the evidence, with reasonable diligence, could have been obtained at the time of the original hearing. As the Appeal Tribunal observed in Queensland Vedic Cultural Centre Pty Ltd v Lal, if the evidence could have been obtained by the party seeking to rely upon it, then it is difficult to see how not permitting the evidence in the appeal will result in a miscarriage of justice. Parties are responsible for the conduct of their own case and should present it at one time and not in a piecemeal fashion. Accordingly, unless the interests of justice demand it, additional evidence should not be permitted upon a rehearing. (footnotes omitted)

Decision

Reasons for decision

Finally, the appellant says that the penalty imposed by the learned member was manifestly inadequate. I have identified errors by the learned member both in the conduct of the hearing and in the final decision. These were errors of law. Unless the resolution of the question of law results in the disposition of the matter entirely in the appellant’s favour, the matter must be remitted for reconsideration by the tribunal. That is the appropriate order here. It follows that the appropriate sanction is matter to be considered on rehearing. Conclusion The appeal should be allowed, the decision of the Tribunal below set aside and the matter remitted for reconsideration according to law and in accordance with these reasons and with such additional evidence as the Tribunal may consider appropriate. I see no reason why the original member cannot undertake the rehearing and this might indeed be preferable in view of the member’s familiarity with the matter.

Ratio Decidendi

Legal Principle Established

The correctness of the reasoning in Helu has not been challenged. I will address the application to adduce further evidence later in these reasons. Consideration of the grounds of appeal It is convenient to consider the grounds of appeal as grouped by the appellant. Grounds of appeal 1, 2 and 3 The appellant sent to Mr Shi two disciplinary action notices, both dated 30 November 2021, pursuant to s 121(1)(a) and s 121(1)(b) of the ES Act. Of particular relevance is that each notice set out the facts established from the material[15] and the disciplinary hearing which had been held on 23 November 2021. [15]The material was contained in a preliminary notice sent to Mr Shi and Mr Shi’s response to the preliminary notice prior to the disciplinary hearing. Following a compulsory conference in the proceeding below, directions were made by the Tribunal, inter alia, that:(a)The parties are in agreement that the grounds for disciplinary action are established with regard to the two disciplinary action decisions dated 30 November 2021.(b)The Tribunal only considers on review whether the disciplinary actions taken by the Committee were the correct and preferable decisions. At the commencement of the hearing below counsel for the appellant drew the learned member’s attention to the directions and advised that the only matter to be decided by the Tribunal was whether the disciplinary action taken by the ELC was the correct and preferable decision. The transcript reveals that the learned member was concerned to understand the potential consequences of Mr Shi’s actions which were the subject of the disciplinary complaint, and to determine whether there remained any factual disputes. An exchange then took place between the learned member and Mr Shi. Mr Shi advised the learned member (through an interpreter) that he ‘certainly disagreed’ with the facts and circumstances set out in the disciplinary action notices. Mr Shi was then called to give evidence and was questioned by the learned member. As the hearing progressed the learned member explored with both Mr Shi and counsel for the appellant the circumstances giving rise to the disciplinary notices. It is not controversial that English is not Mr Shi’s first language and that his English language proficiency is limited. Mr Shi was assisted at the compulsory conference by his daughter. There was no interpreter arranged by the Tribunal present at the conference. Counsel for the appellant proceeded to cross examine Mr Shi about the electrical work the subject of the disciplinary findings. When the hearing resumed after a short adjournment counsel for the appellant applied to adjourn the hearing on the basis that the appellant had not prepared for a contested hearing about the grounds for the disciplinary action in light of the directions made by the Tribunal after the compulsory conference. Counsel for the appellant explained to the learned member that the appellant had not put on evidence to prove all of the matters the subject of the disciplinary complaint. The learned member invited the appellant’s counsel to consider the matter further after Mr Shi had completed giving his evidence. Counsel for the appellant declined this invitation and renewed the application to adjourn the hearing which the learned member refused. When requested to do so the learned member gave brief reasons for his decision.