Electrical Licensing Committee v Shi [2025] QCATA 97

Electrical Safety Regulation 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (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 [2008] QCA 257; [2009] 1 Qd R 41

Wilkie v Councillor Conduct Tribunal [2022] QCAT 79

Mr B McMillan instructed by Office of Industrial Relations

• [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 appeals the Tribunal decision.

• [4] A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding.[1] Leave is required if the appeal involves a question of fact or mixed law and fact.[2] The principles to be applied in considering whether leave to appeal should be granted are:

(a) Is there a reasonably arguable case of error in the primary decision?[3]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[4]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5]

(d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]

• [5] If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[7] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[8] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[9] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[10]

The Electrical Safety Act 2002 (Qld)

• [6] It is appropriate to start with a consideration of the relevant provisions of the Electrical Safety Act 2002 (Qld) ('ES Act').
• [7] The purpose of the ES Act is found at s 4(1). The ES Act is directed at eliminating the human cost to individuals, families and the community of death, injury and destruction that can be caused by electricity.
• [8] Section 5 of the ES Act sets out how the purpose of the Act is to be achieved including by providing for protection for consumers against failures of persons who perform electrical work[11] and establishing the Electrical Safety Board and its committees to participate in developing requirements for the licensing and discipline of persons who perform electrical work.[12]
• [9] Part 4 of the ES Act is concerned with the licensing of persons to undertake or supervise electrical work. Part 9 of the ES Act is concerned with disciplinary action. Section 106 sets out the grounds for taking disciplinary action against the holder of an electrical work licence. Section 107 sets out the grounds for taking disciplinary action against the holder of an electrical contractor licence. Section 109 sets out the disciplinary action the licensing committee may take against the holder of an electrical licence.
• [10] Section 172 of the ES Act provides that a person whose interests are affected by, inter alia, a disciplinary decision, may apply to QCAT to have the decision reviewed.

• [11] 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.

• [12] 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] 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.

• [14] The appellant says that the further evidence is relevant if the appeal is decided by way of rehearing.
• [15] 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:

[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)

• [16] The correctness of the reasoning in Helu has not been challenged. I will address the application to adduce further evidence later in these reasons.

• [17] It is convenient to consider the grounds of appeal as grouped by the appellant.

• [18] 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.
• [19] 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.

• [20] 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.
• [21] 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.
• [22] 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.
• [23] The appellant submits that the matters outlined above amounted to a fundamental failure of procedural fairness such that the entire proceeding before the Tribunal miscarried.
• [24] The proceeding below was a merits review. The Tribunal was required to decide the matter by way of a fresh hearing on the merits. Whether the parties can agree to confine the issues for determination in a merits review proceeding was considered by the Appeal Tribunal in Queensland Building and Construction Commission v Whalley.[16] Whalley involved the review of a decision by the QBCC that building work had not been satisfactorily rectified. Following a compulsory conference, a 'list of issues and agreements' document was prepared by the presiding tribunal member which contained, inter alia, agreement that the decision was a reviewable decision and identifying seven issues to be determined. In reaching a final determination the tribunal at first instance confined its consideration to the identified issues. On appeal, the Appeal Tribunal found that the tribunal failed to exercise its review function and conduct a fresh hearing on the merits necessary to produce the correct and preferable decision, stating:

The Tribunal constituted for the review proceeding was ultimately responsible for determining the matter. The QCAT Act mandates, amongst other things, that the Tribunal conduct a fresh hearing on the merits, and this may involve, in exercising its review function, identifying relevant issues and making findings of fact to determine the review proceeding. The learned Member failed to conduct a merit review required by the QCAT Act. There was in consequence an error of law and the decision of the learned Member cannot stand.

• [25] In Wilkie v Councillor Conduct Tribunal[17] ('Wilkie') Judicial Member McGill SC came to a different conclusion. Wilkie involved a review of a decision finding misconduct by an elected local government official. Judicial Member McGill SC noted the importance of giving close attention to the relevant enabling Act when considering the scope of a merits review proceeding. Judicial Member McGill SC stated that the fact the Tribunal conducts a merits review by way of a hearing de novo does not mean that the parties cannot confine the issues in dispute between them.[18] A footnote appears in the reasons:

That follows from the QCAT Act s 4(b), and the general thrust of Part 6 Divisions 1A, 2, 3 and 4 of the QCAT Act. Insofar as Whalley (supra) suggests that the parties cannot confine the issues in a review, I respectfully disagree.

• [26] In Wilkie, the original application to the Councillor Conduct Tribunal ('CCT') involved fourteen allegations of instances of misconduct. The CCT decided that eight of the allegations of misconduct were sustained. An information notice given to Mr Wilkie after the decision set out the findings of the CCT on the fourteen allegations. Mr Wilkie applied to QCAT to review the decision. He subsequently applied to QCAT to amend the grounds of review to confine the review to seven identified allegations of misconduct and the sanction imposed. The Independent Assessor, the second respondent in the proceeding, objected to the application and argued that the decision under review was the decision of the CCT as a whole, and that a review by the Tribunal involved a hearing de novo of the entire matter which was before the CCT. Judicial Member McGill SC identified the crucial issue: whether the decision on whether or not there was misconduct is one decision in respect of all the allegations, or at least all that have been substantiated, or whether there is a separate decision in respect of each instance of conduct alleged to be misconduct. Judicial Member McGill SC determined that the relevant provisions of the Local Government Act 2009 (Qld) ('LG Act') contemplated that, in a case where there was an application which covered a number of separate instances of conduct which were alleged to amount to misconduct, there would be a separate decision on whether each allegation amounted to misconduct. Judicial Member McGill SC stated:

There is no reason why a person entitled to receive a notice under s 150AS(3) would want to review a decision which was favourable to that person, and when there were a number of separate allegations advanced in one application to the first respondent, it would not be satisfactory if a person with a right to apply for a review were to be exposed to having the findings on allegations which were favourable to that person also reviewed by the Tribunal, in effect as the price for a review of any decision.

The second respondent's submission, if correct, would mean that any review of the decision overall of whether or not there was misconduct would require the Tribunal to conduct a full review of all the allegations of misconduct. Given that the Tribunal is expected by the legislature to deal with matters in a way that is accessible, fair, just, economical, informal and quick,[14] that strikes me as an unlikely legislative intention, and one which is not supported by the purposes of the LG Act. Indeed, if a number of allegations of misconduct are found against a councillor and the councillor does not wish to pursue a review of the decision in respect of one or some of them, the review will be conducted even more efficiently. The fact that the Tribunal conducts a review by a hearing de novo does not mean that the parties cannot confine the issues in dispute between them.

In my opinion therefore the applicant is entitled to apply to the Tribunal to review the decision of the first respondent on those allegations of misconduct which were decided adversely to him, or such of them as he chooses, and that will not open up for review those allegations of misconduct on which the decision of the first respondent was favourable. The decision under s 150AQ(1)(b) is clearly a separate decision, and that has been made subject to review, which right the applicant has exercised.

• [28] As may be seen from the foregoing, the decision of Judicial Member McGill SC permitting the applicant to confine the scope of the review was the result of the construction of the relevant provisions of the LG Act and the particular facts of the case. The comments in the footnote regarding the parties confining the issues in dispute in a review proceeding were obiter and should be considered in this light.
• [29] Division 3 of Part 9 of the ES Act sets out the procedures for taking disciplinary action against a person. The first step involves the committee giving a preliminary notice to the person stating a number of things including the ground that the committee considers may exist for taking disciplinary action against the person and an outline of the committee's understanding of the facts and circumstances forming the basis for the committee's view that the ground may exist.[19] The licence holder may give the committee information the person considers the committee should consider before deciding whether to hold the hearing, including information the person considers would justify the committee in deciding not to act further.[20] The licensing committee may hold a hearing to decide whether the ground exists for taking disciplinary action against the person and if the committee decides the ground exists, to decide whether disciplinary action is to be taken, and if so, the details of the disciplinary action.[21] A disciplinary hearing is held as, or as a part of, a meeting of the licensing committee. The provisions of the ES Act for the holding of board committee meetings apply to the meeting.[22] Section 118(1) sets out the requirements for the conduct of a disciplinary hearing. The licensing committee must keep a record of evidence given to it for the disciplinary hearing however the committee is not required to keep a transcript of the disciplinary hearing.[23] As soon as practicable after completing the disciplinary hearing, the licensing committee must decide whether the ground exists for taking disciplinary action against the person, and if the committee decides that the ground exists for taking disciplinary action against the person it must decide whether disciplinary action is to be taken, and if so, the details of the disciplinary action, and it must give the person a written notice informing the person of what the committee has decided.[24] A decision by the committee is a 'disciplinary decision'.[25] A person whose interests are affected by a disciplinary decision may apply to QCAT as provided for under the QCAT Act, to have the decision reviewed.[26]
• [30] The relevant provisions of the ES Act are quite different to those found in the LG Act considered in Wilkie. The present factual situation is also quite different to that in Wilkie. In undertaking the review proceeding below, the Tribunal was required to hear and decide the matter by way of a fresh hearing on the merits and to produce the correct and preferable decision.[27] The Tribunal was required to determine whether the grounds for disciplinary action were made out and, if so, the appropriate disciplinary action to be taken. It was open to the parties to reach agreement on the relevant facts, including those facts that might support a finding that grounds existed for disciplinary action. It was also open to the parties to agree on facts relevant to the determination of the disciplinary action to be taken. Ultimately however it was a matter for the Tribunal to decide, after conducting a fresh hearing on the merits, if grounds existed for taking disciplinary action and, if so, the disciplinary action to be taken. Insofar as the appellant submits to the contrary, I do not accept the submission.
• [31] Despite the foregoing it was apparent to the learned member that the parties had conducted themselves in accordance with the directions made following the compulsory conference and in the (mistaken) belief that the issue of whether the grounds for disciplinary action existed was not required to be decided by the tribunal. The procedure at the hearing was at the discretion of the Tribunal subject to the Tribunal observing the matters at s 28 of the QCAT Act including observing the rules of natural justice.[28] The notion of natural justice is a flexible one. It requires the Tribunal to give a party the opportunity to present their case. The appellant says that in conducting the hearing it was not given the opportunity to present its case. This is said to arise out of, firstly, the learned member's decision not to confine the scope of the review in accordance with the earlier tribunal directions, and secondly in not allowing the appellant's application to adjourn the hearing after making the determination not to confine the scope of the review.
• [32] I conclude that there was no error by the learned member in not confining the scope of the review. The learned member was not only entitled, he was required, to decide the matter after conducting a fresh hearing on the merits. In deciding the review application, the learned member was required to decide whether the grounds for disciplinary action were established and if so, the disciplinary action to be taken.
• [33] Once the learned member advised the parties that the hearing would not be confined in accordance with the expectation of the parties consistent with the earlier tribunal directions it was obvious that the appellant would be at a significant disadvantage if the hearing proceeded given the basis upon which the appellant had prepared for the hearing. In light of this, the failure by the learned member to adjourn the hearing to allow the appellant to present its case on the basis that the issues for determination would not be confined in accordance with the earlier directions was a breach of procedural fairness. This was an error of law.

• [34] These grounds of appeal traverse a number of alleged errors by the learned member in making the disciplinary orders. The appropriate starting point is a consideration of s 109 of the ES Act.
• [35] Section 109(1) sets out an exhaustive list of the disciplinary action the licensing committee may take against the holder of an electrical licence, which include:

(a) cancel the licence;

(b) suspend the licence -

(i) for a period decided by the committee; or

(ii) until conditions decided by the committee are complied with;

Example of condition -

a condition that the licence holder satisfactorily finish a stated training course or examination

(ba) if the licence is an electrical work licence, disqualify the holder from being a qualified technical person for the holder of an electrical contractor licence -

(i) for a period decided by the committee; or

(ii) until conditions decided by the committee are complied with;

(bb) disqualify the holder from holding an electrical contractor licence, electrical work licence, or both -

(i) for a period decided by the committee; or

(ii) until conditions decided by the committee are complied with;

Example of condition -

a condition that the licence holder satisfactorily finish a stated training course or examination

(bc) include or change a condition or restriction in the licence;

(c) reprimand or caution the holder;

(d) if the electrical licence is an electrical contractor licence, require the holder to correct a fault or defect in electrical work within the time and in the way stated by the committee;

(e) impose on the holder a monetary penalty.

• [36] Section 109(2) provides that the licensing committee may take more than one type of disciplinary action.
• [37] If an electrical licence is suspended because of disciplinary action, the licence cannot be renewed while it is still suspended and if it expires while it is still suspended, cannot be reinstated while it is still suspended.[29]
• [38] In relation to Mr Shi's electrical work licence, the original decision of the committee was to:

(a) Cancel the electrical work licence;

(b) Suspend the electrical work licence for a period of five years;

(c) Disqualify Mr Shi from holding an electrical work licence for a period of five years.

• [39] In relation to Mr Shi's electrical contractor licence, the original decision of the committee was to disqualify Mr Shi from being a qualified technical person for a period of five years.
• [40] In relation to Mr Shi's electrical contractor licence, the original decision of the committee was to:

(a) Cancel the electrical contractor licence;

(b) Disqualify Mr Shi from holding an electrical work licence for a period of five years;

(c) Impose a monetary penalty of $2,000.

• [41] The learned member made the following orders:
  1. The decision made by the Electrical Licensing Committee on 30 November 2021 to disqualify Hongwei Shi from holding electrical worker licence No 155464 for a period of five (5) years from 30 November 2021 is set aside.
  2. The decision of the Electrical Licensing Committee made on 30 November 2021 to suspend Hongwei Shi from holding work licence 155464 for a period of five (5) years is amended so that the period of suspension is reduced to two (2) years from the 21 November 2021.
  3. The decision of the Electrical Licensing Committee to disqualify Hongwei Shi from holding electrical contractor licence number 85954 for a period of 5 years from 21 November 2021 is amended so the period of disqualification is three (3) years from 30 November 2021.
  4. The decision of the Electrical Licensing Committee made on 30 November 2021 to impose a penalty of $2000.00 on Hongwei Shi is confirmed.
• [42] The appellant says that the learned member erred in failing to make a decision about the following:

(a) Cancelling Mr Shi's electrical work licence pursuant to s 109(1)(a) of the ES Act;

(b) Disqualifying Mr Shi from being a qualified technical person pursuant to s 109(1)(ba)(i) of the ES Act;

(c) Cancelling Mr Shi's electrical contractor licence pursuant to s 109(1)(a) of the ES Act.

• [43] In the reasons for decision the learned member referred to a number of matters in determining the appropriate sanction:

(a) Some leniency should have been shown to Mr Shi noting that he was prepared to undertake further training or work with an experienced electrician;

(b) The current order suspending Mr Shi's electrical work licence should be substituted with an order suspending the licence for a period of two years with a recommendation that Mr Shi undertake further training and should work under an experienced electrician;

(c) In 'respect to the public interest, having a worker's licence, although he is able to certify electrical work, my understanding from (counsel for the appellant) was that there is a further certification so there is some oversight by an electrical contractor in the work that Mr Shi would undertake under that worker's licence.' Disqualification of Mr Shi's contractor's licence was justified but not for the period of five years. A disqualification period of three years should be substituted;

(d) The 'fine should remain'.

• [44] The learned member set aside the decision to disqualify Mr Shi from holding an electrical work licence and substituted a decision that Mr Shi's licence be suspended for a period of two years from 21 November 2021. In these circumstances it was not only unnecessary but inappropriate to order the cancellation of the licence. If a licence is cancelled it cannot be suspended. It may be either cancelled or suspended. The appellant says that the orders made by the learned member regarding Mr Shi's electrical work licence are apt to lead to confusion. This submission is principally founded on the absence of an order setting aside the decision of the committee to cancel Mr Shi's electrical work licence. The appellant's submission appears to be that in the absence of an order setting aside the decision to cancel the electrical work licence it is unclear whether Mr Shi in fact still holds a licence. For the reasons I have expressed, the sanction imposed by the learned member is clear from the reasons and the orders made.
• [45] The appellant says that:

(a) the committee did not make any decision which was capable of being amended on review to suspend Mr Shi's work licence;

(b) the Tribunal could not make any decision on review to suspend Mr Shi's work licence because that licence had been cancelled by the committee and that decision was not set aside by the Tribunal - therefore there was no valid worker licence to suspend.

• [46] The difficulty with the first submission is that the committee did in fact make a decision suspending Mr Shi's work licence for a period of five years. This appears to be the genesis of the issues to which the appellant refers. The committee decided to both cancel and suspend Mr Shi's work licence and disqualify Mr Shi from holding a work licence. The appellant does not address these apparent inconsistencies in the original decision. In ordering the reduced period of suspension it is readily apparent that the learned member did not consider cancellation of the licence to be either necessary or appropriate. While the orders might have been expressed with greater clarity, I am not persuaded there was error by the learned member as asserted by the appellant.
• [47] The appellant says that the learned member failed to address the disqualification of Mr Shi as a 'qualified technical person'. A 'qualified technical person' is defined in the Electrical Safety Regulation 2013 (Qld). Electrical work performed by a licensed electrical contractor must be performed or supervised by a qualified technical person. The licensing committee may, if the licence is an electrical work licence, disqualify the holder from being a qualified technical person for the holder of an electrical contractor licence. It is apparent from the reasons and the orders made that the learned member failed to consider whether Mr Shi should be disqualified from being a qualified technical person. This was an error.
• [48] The appellant says that the learned member failed to make a decision about the cancellation of Mr Shi's electrical contractor licence. It is apparent from the reasons and the orders that the learned member considered it appropriate to disqualify Mr Shi from holding an electrical contractor's licence for a period of three years. The learned member failed to address the issue of the cancellation of the licence. Cancellation of the licence was a necessary order before an order could be made disqualifying Mr Shi from holding an electrical contractor licence. There was error by the learned member.
• [49] The appellant says that the learned member erred in in finding that Mr Shi should undertake further training and work under an experienced electrician. The appellant says that the finding was unsupported by the evidence.
• [50] Evidence was given at the hearing by Mr Shi about his qualifications and experience. Mr Shi gave evidence that he had completed the necessary training in order to undertake the electrical work leading to the disciplinary action. Evidence was also given in a written statement and at the hearing by Mr Kevin Sparkes, principal electrical safety inspector with the Electrical Safety Office. Mr Sparkes was questioned by the learned member about further training Mr Shi might undertake. Mr Sparkes's evidence was that Mr Shi should return to a period of apprenticeship under supervision. The evidence of Mr Sparkes was that, as the holder of an electrical work licence, Mr Shi would not be required to work under supervision. The evidence of Mr Sparkes was that if Mr Shi was an apprentice he would be required to work with a licensed electrical contractor and any work undertaken by Mr Shi would be required to be signed off by the licensed contractor.
• [51] It is apparent from the reasons that the learned member's decision about sanction was informed by what he considered Mr Shi's preparedness to undertake further training and work under the supervision of an experienced electrician.
• [52] The appellant says that as the holder of a work licence, Mr Shi was entitled to work independently and without supervision. Section 63 of the ES Act provides that an electrical licence as issued, renewed or reinstated may include conditions or restrictions the regulator considers necessary or desirable for the proper performance of electrical work. Section 109(1)(b)(ii) permits the licensing committee to suspend a licence until conditions decided by the committee are complied with. Section 109(1)(ba)(ii) and s 109(1)(bb)(ii) permit the committee to disqualify a person from holding an electrical work licence or an electrical contractor licence until conditions decided by the committee are complied with. Section 109(1)(bc) permits the licensing committee to include or change a condition or restriction in an electrical licence. The learned member did not decide to impose conditions on Mr Shi's licences. There was no evidence before the learned member about whether such conditions could in fact be imposed. Notwithstanding this, the learned member's approach to sanction appears to have been informed to a not inconsiderable extent by his view that Mr Shi was prepared to work under supervision. In the circumstances, the learned member's discretion when determining the appropriate sanction miscarried by taking into consideration an irrelevant consideration. This was an error of law.
• [53] In light of my conclusion about it is unnecessary for me to consider further the application by the appellant to adduce fresh evidence. The evidence is not determinative of the outcome of the appeal. It seems to me that the evidence may be relevant upon rehearing however that is a matter for the Tribunal upon remittance.
• [54] 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.

• [55] 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.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1).

[2] Ibid, s 142(3)(b).

[3] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[4] Cachia v Grech [2009] NSWCA 232 (30 July 2009), [13].

[5] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[6] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[8] Ericson v Queensland Building Services Authority [2013] QCA 391.

[14] [2023] QCATA 12.

[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.

[16] [2018] QCATA 38.

[17] [2022] QCAT 79.