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- Unreported Judgment
Huang v Health Ombudsman QCAT 430
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Huang v Health Ombudsman  QCAT 430
office of the health ombudsman
Occupational regulation matters
17 November 2023
Judge Dann, Deputy President
The application for Mr McLaren to represent Mr Huang is dismissed.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant has applied to review a decision of the Health Ombudsman to issue a prohibition order against him – where the applicant applies for leave to be represented by a person who is not an Australian legal practitioner or government legal officer – where the application for leave to be represented is opposed – whether the Tribunal should grant leave for the applicant to be represented by the proposed representative
Health Ombudsman Act 2013 section 94(1)(a)(v)
Queensland Civil and Administrative Tribunal Act 2009 section 43(2)(b)I(ii), 43(4)(b)
Bhandari and Ors v Morgan Conley Solicitors Pty Ltd  QCAT 282
Dalma Plastering Pty Ltd & Anor v Quigan & Ors  QCAT 128
Lawler v Fraser Coast Regional Council  QCAT 142
Trad v Queensland Police Service Weapons Licensing Branch  QCAT 468
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- In the substantive proceeding, the applicant seeks a review of a decision of the Health Ombudsman to issue a prohibition order under section 90C of the Health Ombudsman Act 2013 (HO Act). The applicant was prohibited permanently from providing any health service, paid or otherwise, in a clinical or non-clinical capacity.
- In this application filed on 2 August 2023, the applicant seeks leave to be represented by a Lance McLaren. Mr McLaren is not an Australian legal practitioner or a government legal officer. It appears from material filed in the review application that Mr McLaren is (or was at the relevant time) a part owner of Rainbow Massage with the applicant.
- The basis of the application is that Mr Huang does not possess the English comprehension skills necessary to complete the process alone. The application states the reasons why the proposed non legal representative is appropriate are:
- Mr Huang has consistently nominated Mr McLaren as his representative in his dealings with the OHO;
- Mr Huang does not have the English comprehension skills to cope with the process;
- The OHO has exhausted Mr Huang’s ability to afford ongoing legal representation.
- The respondent Health Ombudsman (HO) opposes the application submitting that Mr McLaren is not an appropriate person because:
- He was interviewed by the OHO as a potential witness and the HO relied on that interview in taking immediate action;
- Mr McLaren has not provided any evidence to demonstrate appropriate skills, qualifications and experience to represent Mr Huang; and
- That facts that Mr Huang participated in an interview with the OHO, and with solicitors provided submissions in response to the show cause notice, indicate that he is capable of representing himself, possibly with an interpreter to assist.
- It is accepted that, given the nature of this proceeding, a party is entitled to be represented by someone else. However, a party cannot be represented by a person who is not an Australian legal practitioner unless the Tribunal is satisfied the person is an appropriate person to represent the party.
- The Tribunal has observed in one case that to be a fit and proper person to represent a party in a proceeding in the Tribunal, the proposed representative must have some capacity to present the case of the party, including to assemble and present the evidence and arguments in support of the party’s case. In another case, a person with years dealing with complex legislation at a senior level who was able to comprehend and explain to others issues that may arise in the proceeding was someone with the necessary skills and experience to represent another in the Tribunal. Ultimately, however, the Tribunal found in that case that, notwithstanding those skills and experience, the person was not an appropriate person because of the fraught relationship which existed between the proposed representative and the other party.
- Specifically, though, the Tribunal observed that a representative must be objective and able to see the merits of the arguments from both sides, be free from their own motives in seeking an outcome and focussed on the best interests of the person who they represent. The person should be someone who can engage in meaningful discussion and promote the possibility of settlement where it is appropriate to do so and someone who can work with the opposing party to maximise the interests of both parties to the dispute.
- That a person may be a witness in the proceeding and liable to be cross examined may also be a factor in determining whether a person is an appropriate person.
- Each application is to be considered on its own particular facts.
- Whilst it is apparent that Mr McLaren has acted to assist Mr Huang in the investigation process, Mr Huang was also represented by lawyers during that process. Significantly, there is nothing on the evidence before the Tribunal to suggest that Mr McLaren has any particular skills or experience to support the applicant that would make him an appropriate person to represent Mr Huang in the Tribunal. The contents of the documents from the investigation indicate that Mr McLaren referred to a requirement to provide documents under s 228 of the HO Act as a ‘demand’ (p 26 of 164). This approach suggests Mr McLaren does not appreciate the statutory powers conferred on the HO when conducting investigations.
- Further, Mr McLaren is recorded as having told the investigators that he is furious about the complaint and that they are planning to sue for defamation (p 52 of 164). Whilst such a comment is understandable in the context of personal relationships, this suggests that Mr McLaren would have significant difficulties being objective in representing Mr Huang in the proceeding before the Tribunal.
- Mr McLaren has given an interview in the investigation and information which he provided to the HO has been referred to in the HO’s decision to impose the prohibition order. As such, he may be a witness in the review proceeding.
- Whilst it is unfortunate that Mr Huang may not be able to afford lawyers, it is not uncommon for people to represent themselves in the Tribunal. Refusal of the application for Mr McLaren to be appointed to represent Mr Huang will not prevent Mr McLaren from assisting Mr Huang to prepare submissions or understand materials received from the Tribunal or the respondent.
- In so far as Mr Huang may have communication difficulties which would make it difficult for him at a hearing, if an application is made with some evidence to explain what those difficulties are, and the type of interpreter which may be required, the Tribunal will consider the appointment of an interpreter for the hearing of the review.
- Given the role of Mr McLaren as, potentially, a witness in the proceeding, the lack of any information to suggest he is familiar with the Tribunal’s processes or the legislative regime within in which reviews operate and the indications contained in the material as to his potential lack of objectivity the Tribunal is not satisfied that he is an appropriate person to represent Mr Huang.
- The application for Mr McLaren to represent Mr Huang is dismissed.
 See Notice of Prohibition Order 26 June 2023 page 3 paragraph 1.
 Written submissions filed 5 September 2023. The HO reserves the right to make submissions about the review application having been filed out of time.
 Section 94(1)(a)(v) HO Act and section 43(2)(b)(ii) QCAT Act.
 Section 43(4)(b) QCAT Act.
 Bhandari and Ors v Morgan Conley Solicitors Pty Ltd  QCAT 282 at  per the Hon P Lyons KC, Judicial Member.
 Dalma Plastering Pty Ltd & Anor v Quigan & Ors  QCAT 128 at .
 Dalma, op cit at .
 Dalma, op cit at .
 Trad v Queensland Police Service Weapons Licensing Branch  QCAT 468 at .
 Lawler v Fraser Coast Regional Council  QCAT 142 at .
- Published Case Name:
Huang v Health Ombudsman
- Shortened Case Name:
Huang v Health Ombudsman
 QCAT 430
Judge Dann, Deputy President
17 Nov 2023