FEDERAL COURT OF AUSTRALIA

Reece v Webber [2011] FCAFC 33

THE COURT ORDERS THAT:

1.    The Notice of Motion as filed on 6 January 2011 seeking leave to amend the Notice of Appeal is dismissed.

2.    The Appellant is to pay the costs of the Fourth Respondent of and incidental to the dismissal of the Notice of Motion and such costs as were incurred in respect to the appeal.

3.    The Notice of Appeal as filed on 11 October 2010 is dismissed.

4.    The Appellant is to pay the costs of the First, Second and Third Respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1    The Appellant, Dr Reece, is a medical practitioner. He completed his last year in medical school in 1981 and thereafter occupied positions at hospitals in Australia, New Guinea and the United Kingdom.

2    On 22 November 2007, Medicare Australia sent the First Respondent, the Director of Professional Services Review, a request to review Dr Reece’s provision of medical services during the period 1 April 2006 to 31 March 2007. The purpose of the review requested was to consider whether he may have engaged in “inappropriate practice” as that term is defined in s 82 of the Health Insurance Act 1973 (Cth) (“Health Insurance Act”). Dr Webber notified Dr Reece on 27 November 2007 of his decision to undertake a review and, following the receipt of submissions, Dr Webber thereafter on 7 April 2008 set up a Professional Services Review Committee to undertake a review.

3    The Committee was constituted by Dr Bernard Kelly as Chairperson together with Drs Kathleen Keating and Ailsa Laidlaw as members.

4    A Draft Report was prepared by the Committee and sent to Dr Reece on 27 May 2009. An opportunity was extended to Dr Reece to make submissions, which he sent to the Committee on 12 August 2009 (“August 2009 Submission”). A Final Report of the Committee dated 29 October 2009 was then prepared. The Final Report concluded that the conduct of Dr Reece in respect to the provision of those services that had been referred to it for review “would be unacceptable to the general body of general practitioners as defined in s 82(1)(a) of the Act”. The Final Report set forth findings in respect to these services and provided reasons in support of its conclusion that Dr Reece had engaged in “inappropriate practice”.

5    On 27 November 2009 Dr Reece filed an Application for an Order of Review in this Court. An Amended Application was filed on 25 February 2010 seeking review of both:

    the decision, conduct or action of the First Respondent to set up a Committee and to refer to that Committee for its consideration whether the Applicant had engaged in inappropriate practice in connection with the services; and

    the decision of the Committee in preparing its Final Report.

The Amended Application claimed that:

    the decision of the First Respondent was vitiated by the fact that there had been referred to the Committee “all classes of services … rather than only those classes of services in relation to which he thought the applicant may have engaged in inappropriate practice in providing the services”;

and that:

    the decision of the Committee was vitiated by an absence of “authority or power to conduct their investigation”, a denial of “natural justice”, a failure “to observe procedures required to be observed” and a “reasonable apprehension of bias”.

6    These were the grounds of review heard and resolved by the primary Judge. His Honour dismissed the application: Reece v Webber [2010] FCA 1025.

7    A Notice of Appeal was filed on 11 October 2010. Thereafter, on 24 December 2010, a directions hearing was held in both the present appeal and a number of other proceedings which canvassed a number of arguments which had emerged as to the validity of the appointment of members of the Committee. These arguments focussed upon whether the requirements imposed upon the Minister by ss 84 and 85 of the Health Insurance Act had been satisfied. These requirements included a requirement for the Minister to “consult” the Australian Medical Association as to the appointment of persons to those panels from which members of the Committee were drawn.

8    Seeking to seize upon these other arguments which had emerged, or at least one or other of them, the Appellant in the present proceeding filed a Notice of Motion on 6 January 2011 seeking leave to amend the Notice of Appeal. Although not expressly sought in the Notice of Motion, leave was also sought to adduce additional evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth).

9    Both the Notice of Motion and the Notice of Appeal are dismissed.

The Application for Leave To Amend

10    The Notice of Motion filed on behalf of the Appellant on 6 January 2011 sought leave to file an Amended Notice of Appeal. Leave to amend was refused at the outset of the hearing of the appeal and the provision of reasons for that decision was reserved until now.

11    It may readily be accepted that in “exceptional circumstances” a new argument may be raised on appeal: Dart Industries Inc v Décor Corporation Pty Ltd (1989) 15 IPR 403 at 416 per Lockhart J (Jenkinson and Gummow JJ concurring). Ordinarily, it “is elementary that a party is bound by the conduct of his case”: University of Wollongong v Metwally (No 2) [1985] HCA 28, 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. To allow too readily the running of new points on appeal, however, may undermine the appellate process by rendering the trial process almost irrelevant: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19], 80 ALD 435 per French J (as His Honour then was). But leave to raise a new argument may be permitted where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.

12    And, on appeal, the Court may “receive further evidence”: s 27 of the Federal Court of Australia Act 1976 (Cth). The discretion conferred is not constrained by any requirement that “special grounds” need be made out (Commissioner of Taxation v Walker (1984) 2 FCR 283 at 296 per Fisher J) nor that the “further evidence” be “fresh evidence” (Chamberlain v The Queen (1983) 72 FLR 1 at 9 to 10 per Bowen CJ and Forster J). The discretion is unconstrained by the circumstances in which evidence could be admitted on appeal at common law (Cottrell v Wilcox [2002] FCA 232 at [19] to [20]).

13    The proposition that the common law rules do not apply automatically to confine statutory provisions, such as s 27, may be traced to CJD v VAJ [1998] HCA 67 at [52], 197 CLR 172 at 185 per Gaudron J. Albeit in the context of an appeal from the Family Court, and the power conferred by s 93A(2) of the Family Law Act 1975 (Cth) to receive further evidence on appeal, Her Honour noted that there is “no reason for thinking that the common law rules which govern the admission of fresh evidence apply automatically to confine the discretion to receive further evidence conferred by s 93A(2)”. Subsequent to that decision, Beaumont, Lindgren and Tamberlin JJ in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 (“NASB”) stated as follows:

[42] In order for this Court to receive further evidence, generally speaking (cf: Cottrell v Wilcox [2002] FCAFC 53; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different ... The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes (1948) 76 CLR 632 at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367–368 ((as agreed by the parties) ‘almost certain that, … an opposite result would have been reached by the primary judge’).

Notwithstanding the reference by their Honours to CDJ, the two “conditions” to which they refer substantially reproduce the common law constraints as to the admission of fresh evidence on appeal.

14    Thereafter, Branson, Lindgren and Besanko JJ in Sobey v Nicol [2007] FCAFC 136, 245 ALR 389 at 403 to 404 again reviewed the authorities, including CDJ (but not NASB) and expressed the approach to be applied in respect to s 27 as follows:

[69] The above authorities reveal that the circumstances in which further evidence may be received in this court on appeal are not limited by the principles laid down in authorities such as Greater Wollongong City Council v Cowan (1955) 93 CLR 435 which concern common law procedures. The proper limits of the discretion vested in the court by s 27 are to be determined as a matter of statutory construction. As the Federal Court Act is silent as to the factors which govern its exercise, the discretion is confined only by the subject matter with which the Act is concerned. It should not be understood to be subject to implications or limitations not found in the words used by the legislature. It is a discretion to be exercised in the context of an appeal by way of rehearing. On appeal this court is required to determine the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.

[70] A critical factor will be the subject matter of the proceeding with which the appeal is concerned. As the High Court observed in CDJ the court will more readily admit further evidence where the rights of third parties, such as children are at stake.

[71] The discretion to receive further evidence must be exercised judicially, consistently with proper judicial process and in the interests of justice. It is highly unlikely that the legislature intended that s 27 should be construed in such a way as to obliterate the distinction between original and appellate jurisdiction.

[72] The proper role of an appellate court under s 25 of the Federal Court Act has been considered on a number of occasions in recent years … ; it is ordinarily to correct error. Nothing in CDJ was, in our view, intended to minimise the force of the observation of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7; 65 ALR 656 at 660 that:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[73] It is necessary to consider the additional evidence sought to be adduced by Mr Sobey having regard to the above principles. …

The fresh evidence there sought to be adduced was refused. In applying the “principles” their Honours set forth, one factor relied upon was the fact that “none of the additional evidence … is fresh evidence in the sense that it concerns events which happened, or documents brought into existence, since the date of the hearing before the primary judge”: [2007] FCAFC 136 at [74]. That was also a factor relied upon by Stone, Gordon and McKerracher JJ in Dreamtech International Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 103 at [14], 187 FCR 352 at 355 in again refusing leave to adduce further evidence.

15    The result, it is considered, is that the discretion conferred by s 27 to adduce further evidence is thus unconfined by any express limitations. But the discretion is to be exercised in a statutory context where the appeal being entertained is an appeal by way of rehearing for the purpose of determining the rights of the parties in accordance with law. Although not constrained by common law principles, the considerations to which the common law had regard remain considerations relevant to the exercise of the discretion conferred by s 27. The exercise of the discretion conferred by s 27 may be informed by reference to these principles but is not to be constrained by them.

16    It is in this manner that the application to advance a further argument not advanced before the primary Judge, and the application to adduce further evidence, has been approached.

17    Notwithstanding considerable uncertainty that prevailed at the outset of the hearing of the present appeal, it ultimately emerged that the Appellant sought to amend his Notice of Appeal to canvas two discrete issues arising from a confined factual setting.

18    The factual setting against which these issues were to be resolved was said on behalf of the Appellant to be contained within:

    a letter written on 31 August 2004 by Dr Holmes, former Director of Professional Services Review, to the Australian Medical Association seeking “the advice of the AMA and relevant Colleges on a proposed reappointment of” medical practitioners. These medical practitioners were apparently identified on an attached list, although no copy of the list could be found;

    the appointment by the Minister on 25 January 2005 of medical practitioners, including those practitioners who constituted the Committee as constituted in the present proceeding. The Ministerial Minute setting forth the recommendation to the Minister dated 15 December 2004, and signed by the Minister on 24 January 2005 stated: “The AMA advise they have contacted the specified organisations, but have only received responses from RACS and RCPA”.

    the response of the Royal Australian College of General Practitioners on 17 January 2005; and

    the response of the Australian Medical Association on 2 February 2005.

The Appellant also sought to seize upon a factual concession said to have been made on behalf of the Commonwealth that there had been no separate correspondence directed to the appointment of members of the Committee as Deputy Chairpersons.

19    If leave were given to amend, the Appellant indicated that he would seek to tender the Ministerial Minute containing the recommendation to the Minister, the August 2004 letter and the two letters in response.

20    Against this factual background, if leave were given to amend, the Appellant foreshadowed that the only two issues he would seek to have resolved by this Court were:

    whether the requirement to consult required by s 84(3) was satisfied in circumstances where the Minister sought the advice of the Australian Medical Association in August 2004 and where there had been “no response” prior to either 15 December 2004 or 24 January 2005; and

    whether the requirement to consult required by s 85(3) was satisfied where there had been no separate correspondence directed to the appointment of Deputy Chairpersons.

The obvious course being pursued by the Appellant was to confine his newly formulated attack to as limited a factual area of dispute as possible. Expressly disclaimed was any attempt to pursue any other argument which may otherwise have been available and which may have involved a greater ambit of factual dispute. One such argument was whether or not there had been a list “of those members of the Panel who would be interested in continuing” attached to a letter forwarded to the Australian Medical Association on 31 August 2004 by the Director of Professional Services Review. The absence of any such list may assist a conclusion that it would be difficult to “consult” in respect to unidentified practitioners.

21    No criticism can be directed at Counsel for the Appellant in seeking to confine the issues to be resolved. Perhaps Counsel’s decision to confine the area of leave to as narrow a front as possible was influenced by anticipated opposition to leave being granted had a wider factual dispute emerged.

22    But the very confinement of the issues he sought to have resolved necessarily meant that the utility of the present appeal being used as the vehicle to assist in the resolution of at least some of the other outstanding proceedings raising the same or comparable grounds was considerably diminished.

23    Stripped of its utility in assisting in the resolution of other proceedings, the present appeal was reduced to an instance where an individual Appellant sought to raise such limited issues as he perceived were in his own interests. Such a course can attract no criticism. But, so reduced, the considerable public interest in leave being granted to raise and resolve points of general application was itself reduced.

24    The present Appellant, it is considered, placed himself in a position where the evidence he sought to adduce pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) was evidence which was available at the time of hearing before the primary Judge. The arguments he sought to raise for the first time on appeal as to the lack of consultation required by ss 84 and 85 of the Health Insurance Act were arguments that could have been advanced before the primary Judge, had attention then been given to such issues.

25    In the absence of the present appeal truly presenting itself as the vehicle whereby all arguments going to the manner of appointment of members of Professional Services Review Committees in 2005 could be resolved, it is considered that the interest in finality in litigation dictated the refusal of leave. It is undesirable for only some of the available arguments to be resolved in the present appeal on a limited and (perhaps) arbitrarily confined factual platform and for other arguments to be resolved in separate proceedings. The prospect of different conclusions being reached is not a prospect that should be encouraged.

26    The present Appellant, it is concluded, should be bound by the manner in which he conducted his proceeding before the primary Judge.

27    Any success on the part of the Appellant must thus necessarily depend upon his existing Notice of Appeal and a proper understanding as to the role of the Committee.

The Statutory Role of the Committee

28    Division 4 of Part VAA of the Health Insurance Act contains those provisions of present relevance to the role pursued by the Committee and its role in the preparation of a Draft Report and a Final Report.

29    Within that Division, s 101(1) provides that the Committee may “at any meeting, hold a hearing at which evidence is given” and s 102 provides for the giving of notice to the person under review. Pursuant to s 106(1) “the procedure for conducting the hearing is within the discretion of the Committee member presiding at the meeting” and such “evidence … may be taken on oath or affirmation” (s 106A(1)).

30    Section 106KD provides for the preparation of a draft report and those matters that must be contained within such a draft. That section provides as follows:

Preparation of draft report

(1)    The Committee must prepare a written draft report of preliminary findings setting out:

(a)    if the Committee members are unanimous in their preliminary findings—those preliminary findings; or

(b)    if a majority of the Committee members are agreed on preliminary findings—those preliminary findings and the preliminary findings of the other Committee member or Committee members; or

(c)    if there are not a majority of the Committee members who are agreed on preliminary findings—the respective preliminary findings of the Committee members.

(1A)    The draft report must set out the reasons for the preliminary findings.

(2)    If the person under review is a practitioner, the draft report may, with the person’s written consent, include recommendations:

(a)    for the practitioner to be fully or partly disqualified; and

(b)    about the nature and period of the disqualification.

(3)    Unless section 106KE applies, the Committee must give to the person under review a copy of the draft report together with a notice inviting the person to make to the Committee, within 1 month after the day on which the copy of the draft report is given to the person, written submissions suggesting changes to the draft report.

The use of the term “evidence” in s 106A(1) when the Committee is conducting a “hearing” and the use of the term “submissions” in s 106KD(3) may presently be simply noted.

31    Section 106L of the Health Insurance Act imposes upon a Committee a requirement to prepare a “final report”. That section in its entirety provides as follows:

106L    Final report of Committee

(1A)    This section applies if the person under review has been given a notice under subsection 106KD(3) inviting submissions on changes to the draft report.

(1)    After the period of 1 month referred to in subsection 106KD(3), the Committee must, after taking into account any submissions made to the Committee by the person under review within that period, prepare a final report setting out:

(a)    if the Committee members are unanimous in their findings—those findings; or

(b)    if a majority of the Committee members are agreed on findings—those findings and the findings of the other Committee member or Committee members; or

(c)    if there are not a majority of the Committee members who are agreed on findings—the respective findings of the Committee members.

(1B)    The final report must not include a finding of inappropriate practice unless the finding and the reasons for the finding were included in the draft report under section 106KD.

(2)    If the person under review is a practitioner, the final report may, with the person’s written consent, include recommendations of the kind mentioned in subsection 106KD(2).

(3)    Unless subsection (5) applies, the Committee must:

(a)    give copies of the final report to the person under review and the Director; and

(b)    give the final report to the Determining Authority not earlier than 1 month after the day on which a copy of the report is given to the person under review.

(4)    The copy given to the person under review under paragraph (3)(a) must be accompanied by a written notice setting out the terms of paragraph (3)(b).

(5)    If the final report does not contain a finding by all, or a majority, of the Committee members that the person under review engaged in inappropriate practice in the provision of some or all of the referred services:

(a)    the Committee must give copies of the report to:

(i)    the person under review; and

(ii)    the Director; and

(iii)    the Medicare Australia CEO; and

(b)    the copies must include, or be accompanied by, a written notice stating that:

(i)    the report does not contain a finding by all, or a majority, of the Committee members that the person under review engaged in inappropriate practice; and

(ii)    no further action will be taken as a result of the report.

32    Provision is thereafter made in Division 5 of Part VAA for the “Determining Authority” to make a determination if given a copy of a final report by the Committee.

The Two Reports and the August 2009 Submission

33    The chronological sequence of events in the present proceeding which gave rise to the litigation is:

    the provision to Dr Reece of a Draft Report on 27 May 2009;

    the response of Dr Reece in the form of the detailed August 2009 Submission; and

    the preparation of the Committee’s Final Report dated 29 October 2009.

34    It is the manner in which the Committee addressed the August 2009 Submission of the Appellant which assumes importance. In very summary form, the Notice of Appeal contends that material contained in the August 2009 Submission was such that it should have been expressly referred to in the Final Report and that the failure to do so exposes either:

    a commitment on the part of the Committee to adhere to the views expressed in the Draft Report and, accordingly, a reasonable apprehension of bias by reason of a failure to consider submissions with an open mind; and/or

    a failure on the part of the Committee to properly consider submissions advanced on behalf of the Appellant on matters of central relevance to its deliberations.

35    The Draft Report set forth as follows its Preliminary Finding:

PRELIMINARY FINDING

1.    The Committee finds that Dr Albert Reece, a general practitioner who practised during the review period at Southcity 7-Day Family Medical Centre, 39 Gladstone Road, Highgate Hill, Queensland 4101, engaged in inappropriate practice in connection with providing the Referred Services. In particular, the Committee finds that the conduct of Dr Reece in connection with providing:

●    48% of the MBS item 36 services examined

●    64% of the MBS item 44 services examined

●    100% of the MBS item 721 services examined.

would be unacceptable to the general body of general practitioners as defined in section 82 (1)(a) of the Act.

2.    The Committee’s reasons are set out in Appendices 1, 2 and 3.

The Draft Report also set forth an “Overview” of the practice of the Appellant which stated in part as follows:

Overview

17.    During the hearing the Committee identified a number of concerns with Dr Reece’s practice. The following are examples of recurrent issues:

•    Dr Reece stated that he checked for track marks on his narcotic dependent patients, yet the committee was never able to see any documentation to support his claim.

•    There were concerns from the Committee in relation to Dr Reece’s clinical competence. Examples include:

°    Dr Reece saw a patient with chest pain who needed urgent referral to a cardiologist on the following day. Dr Reece did not perform an ECG even though the equipment was available.

°    Dr Reece saw a patient who had been in hospital with pneumonia. Dr Reece did not examine the patient’s chest but sent the patient for a chest x-ray.

°    A patient presented with long-continued headaches, however, Dr Reece did not perform a detailed neurological examination. In addition, the patient had no fewer than 15 injections of morphine and stemetil over a ten-month period.

°    Dr Reece saw a mother who was opiate dependent and the matter of drug dependence in the child, particularly if the mother was breast-feeding, was not considered by Dr Reece.

36    The August 2009 Submission provided in response to the Draft Report was a detailed document. Separate from the covering letter was a 23 page submission together with detailed Tables separately addressing each of the three “item” numbers in respect to which it was said that Dr Reece had engaged in “inappropriate practice”. In total, the submission was approximately 160 pages in length.

37    It was to these “examples” provided in the Draft Report – and to the “expert medical opinions” set forth in the August 2009 Submission – that Counsel for the Appellant turned his attention during the course of oral submissions. It was the very detail of the “expert medical opinions” which it was contended should have been expressly referred to – either to be accepted or rejected – in the Final Report.

38    Thus, by way of example, a comparison was made between the following statements in the Draft Report with the content of the August 2009 Submission which provided in part as follows:

These extracts are sufficient to indicate both the degree of detail presented on behalf of the Appellant and the corroboration of the views he was advancing supported by the opinions of others.

39    Counsel on behalf of the Committee sought to dismiss much of the content of the August 2009 Submission as of “no relevance” to the concern being pursued by the Committee.

40    It was not disputed that the August 2009 Submission occasioned changes being made by the Committee to its Draft Report. Some of the changes are as follows:

    the inclusion in the Final Report of a statement that the August 2009 Submission was part of the material relied upon;

    the inclusion of a heading entitled “Draft Report of Preliminary Finding” setting forth the fact that a Draft Report had been forwarded to the now Appellant; and

    the inclusion of a heading entitled “Written Submissions in Response to the Draft Report” and subsequent discussion of some of the content of the August 2009 Submission.

There was also the following final statement as contained in the Final Report:

27. As detailed in the response, the submission did not change the Committee’s finding that Dr Reece’s conduct in connection with the referred services constituted engaging in inappropriate practice.

41    There was also limited divergence between the Draft Report and the Final Report as to that part of both Reports which addressed the “Overview” of “a number of concerns with Dr Reece’s practice” which were said to be “examples of recurrent issues”.

42    But the detail of the August 2009 Submission as to the “expert medical opinions” was not expressly referred to or expressly addressed in any variation as between the Draft Report and the Final Report.

A Reasonable Apprehension of Bias?

43    The first Ground of Appeal asserts a reasonable apprehension of bias by reason of:

    the “damning overview” provided in the Draft Report;

    the provision by the Appellant of opinions of the medical specialists who disagreed with the views expressed by the Committee;

    the maintenance by the Committee of their opinions without explanation as to why they differed from the medical specialists relied upon by the Appellant; and

    the Final Report only containing what were characterised as “minor changes” to the Draft Report.

44    Some matters of general principle were not put in issue.

45    The Appellant thus did not dispute that an allegation as to a reasonable apprehension of bias must be “firmly established”: Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342. Mason J there observed at 352:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as R v Watson; Ex parte Armstrong (1976) 136 CLR 248 and Livesey v NSW Bar Association (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10, 122 CLR 546 at pp 553-554; Watson at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14; 32 ALR 47 at pp 50-51. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], 76 ALD 424 at 441 per Weinberg J. An appeal from this decision was allowed, but no reservation was expressed by the Full Court as to His Honour’s observations in respect to the allegation as to bias: Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216.

46    The facts that may give rise to a reasonable apprehension of bias are many and various. In some circumstances a reasonable apprehension of bias may arise by reason of, for example, intemperate language employed by those conducting a hearing (cf. Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230; Penhall-Jones v New South Wales [2007] FCA 925 at [92] to [97]) or the terminology employed in an administrative decision or draft decision.

47    But it will be a “rare and exceptional case” where bias can be demonstrated solely by reference to the published reasons for decision: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. Albeit in the context of resolving an allegation of actual bias, as opposed to a reasonable apprehension of bias, von Doussa J there relevantly observed:

[38] In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing … or a failure to enquire into and to obtain readily available and important information relating to central matters for determination … an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

See also: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16]; SZHOP v Minister for Immigration and Multicultural Affairs [2006] FCA 1640 at [23] per Jacobson J; SZLVN v Minister for Immigration and Citizenship [2008] FCA 1301 at [21] per Jacobson J. Similarly, an unwillingness to believe the claims being advanced, without more, does not demonstrate any lack of good faith: SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [9] per Wilcox J.

48    In the present statutory context it must necessarily be borne in mind from the outset that that context dictates the preparation of a draft report and a final report. In an appropriate case a comparison between the draft and final reports may well found at least an arguable apprehension of bias. But it may well be a rare case where the mere similarity or even commonality between the terms of two reports – where a draft must necessarily precede a final report – will be sufficient in itself to sustain such an apprehension.

49    It is also of importance to bear in mind from the outset the fact that the membership of any Committee is drawn from those medical practitioners selected after consultation between the Minister and the Australian Medical Association. Those practitioners are presumably appointed after consultation by reason of their perceived ability to bring to their deliberations an understanding as to what constitutes “inappropriate practice” as defined in s 82.

50    It is thus not to be expected that any Committee member brings to his deliberations a “blank mind”. Any Committee member will presumably bring to his deliberations that knowledge and experience which qualified him for appointment.

51    But what is to be expected is that Committee members are open to – and seen to be open to – persuasion. Thus, in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [71] to [72], 205 CLR 507 at 531 to 532, Gleeson CJ and Gummow J observed:

[71] Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias …

[72] The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

The position of a Minister, it was there said, was substantially different from that of a judge or quasi-judicial officer adjudicating in adversarial litigation: [2001] HCA 17 at [102], 205 CLR 507 at 539. See also: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [599], 148 FCR 446 at 591 per Weinberg J.

52    The fact that a decision-maker may previously have given thought to matters under consideration does not necessarily expose a reasonable apprehension of bias: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10, 122 CLR 546 at 553 to 554. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ there observed:

Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

A “general tendency of mind” towards equal pay for males and females there did not disqualify Commission members “from sitting in a matter in which a decision as to the awarding of equal pay had to be considered”. But sometimes it is the very nature of a statement that has been previously made which may found a reasonable apprehension of bias, irrespective of the knowledge to be attributed to the hypothetical bystander: eg, British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2. A finding of dishonesty had there been made by a judge of the Dust Diseases Tribunal of New South Wales in respect to a policy as to the destruction of documents. The dissenting member in the Court of Appeal (British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 per Allsop P) and a majority of the High Court (Heydon, Kiefel and Bell JJ) concluded that the judge’s conclusions as to fraud founded a reasonable apprehension of bias.

53    The purposes served by the preparation of a draft and final report must also be borne in mind. One purpose served by a draft report is to properly put to a medical practitioner whose conduct is in question the basis upon which a Committee may be proceeding so that he can thereafter make a “submission”. Whether the very professional background that qualified a Committee member for appointment to the panel from which Committee members are drawn influences the “provisional findings” that have been reached will be thereby disclosed for comment. One purpose served by the final report is to properly inform the “Determining Authority” of the views of the Committee as to whether a medical practitioner has engaged in “inappropriate practice”.

54    When forming a view as to whether a reasonable bystander would have a reasonable apprehension of bias, any such reasonable bystander would be possessed of knowledge as to the purposes served by a draft and final report and the statutory context in which each is prepared.

55    The identification and knowledge to be ascribed to this reasonable or “fictitious bystander” has, not surprisingly, attracted some attention. The knowledge to be attributed to this bystander may well significantly influence a conclusion as to whether any apprehension of bias is reasonable. The more informed a hypothetical bystander may be, the more difficult it may be to sustain an argument that an apprehension of bias is reasonable. In Johnson v Johnson [2000] HCA 48 at [52] to [54], 201 CLR 488 at 507 to 509, Kirby J summarised the authorities and principles as follows:

The knowledge imputed to the fictitious bystander

[52] There is no simple answer to the foregoing questions. As is usually the case when a fiction is adopted, the law endeavours to avoid precision. The nature of the fiction involved in this instance is illustrated by the many ways in which the hypothesised bystander is described. Phrases that have been used include the “lay observer”…“fair-minded observer”…“fair-minded, informed lay observer”…“fair-minded people”…“reasonable or fair-minded observer”…“reasonable and intelligent man”… the “parties or the public”… a “reasonable person”... or (as has sometimes been favoured in England ... and Canada ...) the somewhat quaint and circular phrase, a “right-minded” person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits …

[53] The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer …Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided … Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers … The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted ... The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality … Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context ... Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

[54] About the precise detail of the knowledge ascribed to the fictitious bystander, there can be (and sometimes is) a difference of opinion. This observation is illustrated by S & M Motors (1998) 12 NSWLR 358 ... The majority there explained their reasoning by reference to a dialogue between citizens. In that dialogue, one participant, obviously with more knowledge of the particular proceedings and of legal proceedings generally, endeavoured to explain to the other, who was more sceptical, the unreasonableness of concluding that there was any danger of bias or prejudgment in that matter. I disagreed with that view on the footing that the hypothetical conversation attributed excessive “sophistication and knowledge about the law and its ways” to one of the participants which was “atypical of the general community” … Later, in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (Unreported; Court of Appeal (NSW); 27 November 1990) … I returned to this point and what I said there still expresses my opinion.

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there further observed that although the fictional observer is not to be assumed to have a detailed knowledge of the law, the reasonableness of the apprehension of bias is to be considered in the context of ordinary judicial practice and that such practice is “not frozen in time”. The practice has to take account of the exigencies of modern litigation, including the fact that at the trial level modern judges respond to a need for more active case management and intervene in the conduct of a case to an extent that “may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”: [2000] HCA 48 at [13], 201 CLR 488 at 493.

56    In the present appeal, the Appellant submitted that the hypothetical bystander was “a reasonable lay-person, properly informed of the nature of the proceedings, and the matters to be determined, and the evidence in the proceedings …”. So much may be accepted.

57    In the present appeal, however, it is not considered that there is any merit in the submission that a reasonable apprehension of bias emerges from what was described as the “damning overview” of the practice of the Appellant. That “damning overview” was said to be evidenced by the manner in which the “Overview” was expressed, including the reference to the “examples of recurrent issues”. That “Overview”, however, remains nothing more than that – namely, an overview of the concerns of the Committee.

58    It is further considered that such statements as thereafter appear in the Draft Report merely set forth the provisional views of the Committee’s findings in respect to which submissions were to be received and considered. Where a Committee has tentatively concluded that a medical practitioner has engaged in “inappropriate practice”, it should set forth its views unequivocally. Indeed, a failure to do so may prejudice the ability of the medical practitioner to properly respond. An equivocal statement of tentative or provisional conclusions may lead a medical practitioner to believe that the Committee is of the view that his practices are less serious than is truly the case, and may be instrumental in inducing the practitioner to advance perhaps less fulsome submissions than may properly advance his own case and assist the Committee in forming its final conclusions.

59    Nor is there any substance, with respect, to the submission that the differences between the Draft Report and the Final Report were such that the Committee members were not open to persuasion. Not only did the members disagree between themselves; there was also a subsequent revisiting by each Committee member of the views in the Draft Report. The August 2009 Submission was such as to occasion each Committee member to alter or modify (at least in part) the views previously expressed. There was no commitment to views previously expressed such as to found any reasonable apprehension of bias. Any suggestion that each of the Committee members did not have a mind “open” to persuasion is rejected. A reasonable or hypothetical bystander, properly informed as to the purposes to be served by the Draft Report and the Final Report and “the notice of the proceedings and the matters to be determined”, would have no reasonable apprehension that the Committee was not open to persuasion and open to change the views expressed in its earlier Draft Report if so persuaded by the August 2009 Submission.

60    The first Ground of Appeal is rejected.

A Failure To Consider the Expert Medical Opinions

61    The second Ground of Appeal asserted that the Committee had failed to take into account material, “being the expert medical opinions provided by the Appellant as part of his response under section 106T(3) … to counter the ‘recurrent issues’…”.

62    Any requirement that a decision-maker is to take into account a particular matter is primarily dictated by the statutory context in which the decision is made. In the present statutory context, a primary responsibility entrusted to the Committee is to reach a conclusion as to whether a medical practitioner has engaged in “inappropriate practice”. And in reaching that conclusion the Committee may hold a “hearing” at which it:

    “may inform itself on any matter in any way it thinks appropriate” (s 106(2)); and

    may take “evidence … on oath or affirmation” (s 106A(1)).

Thereafter the Committee is to prepare a draft report:

    setting forth its “preliminary findings” and its “reasons for the preliminary findings” (s 106KD(1) and (1A)).

A medical practitioner whose conduct is under review may thereafter make:

    “written submissions suggesting changes to the draft report” (s 106KD(3)).

It is the responsibility of the Committee to then prepare a final report:

    setting forth its “findings” (s 106L).

Provision is also made for those situations where the Committee “findings” are not “unanimous”: ss 106KD(1) and 106L(1). The term “findings” is not defined.

63    As a matter of general principle, it may be accepted that the mere fact that a decision-maker states that he has taken a particular matter into account is not necessarily conclusive: Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Gummow J, 11 December 1987), 14 ALD 291 at 292.

64    The fact that the Final Report of the Committee repeatedly states that it has “fully considered” the August 2009 Submission is, accordingly, not conclusive either of the submission itself having been properly considered or the “expert medical opinions” set forth in that submission having been properly considered.

65    Equally, a failure to expressly mention particular material is not conclusive that it has not been taken into account. A decision-maker is not normally required in its reasons for decision to refer to “every item of evidence that was before it” and an “omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked”: cf. SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. See also: SZHPI v Minister for Immigration and Citizenship [2008] FCA 306 at [15] per Branson J; Australian Postal Corporation v Sellick [2008] FCA 236 at [64], 101 ALD 245 at 259 per Bennett J.

66    There are obvious differences between the relevant provisions of the Health Insurance Act presently in issue and (in particular) ss 106KD(1) and 106L(1) and those, for example, set forth in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) or s 430 of the Migration Act 1958 (Cth). Section s 43(2B) of the Administrative Appeals Act thus requires the Administrative Appeals Tribunal in its reasons for decision to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Section 430 of the Migration Act is in similar terms. Notwithstanding such important differences, the following observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at 346 should be noted:

[69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material … This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error … The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration …

Those observations serve to emphasise the “important work” served by a statutory obligation to provide “findings” and “reasons” for a decision.

67    Even in a statutory context where a tribunal is required to provide a statement of reasons referring to the evidence or other materials on which its findings of fact are based, however, it is recognised that there is no requirement for such a tribunal to refer to every piece of evidence and every contention that may be advanced: cf. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ. In such a statutory context it has been recognised that the question as to whether or not there has been a breach of the statutory obligation “is a question of degree”: Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65, 95 ALR 654 at 656. Pincus J (with whom Spender and French JJ agreed) there stated:

A breach of that provision [s 43(2)(b) of the AAT Act] is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned. Where there are (as is usual in the Tribunal) no pleadings or other documents formally defining the questions which the parties desire to have decided, subs (2B) does not necessarily and always require discussion of every point which might have been raised before the Tribunal, whether or not it has been argued.

68    But where particular material is to be taken into account – such as that contained within the August 2009 submission – it has been said that a decision-maker must give “proper, genuine and realistic” consideration to that material. That phraseology may be traced in part to the following observations in Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Gummow J, 11 December 1987), 14 ALD 291 at 292:

[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...

It is phraseology that has since been repeated and applied: eg, Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], 74 ALD 124 at 130 per Wilcox J.

69    So expressed, however, the phraseology has also attracted reservation. The formula of a “proper, genuine and realistic consideration”, it has been said, “creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinized”: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ. Most recently, in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 273 ALR 122 an appeal was allowed from a decision of the Federal Court. It was there contended that there had been a failure to “give proper, genuine and realistic evaluation” to objective credible material where it was said that such material had been given “no weight”. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ concluded that the decision appealed from “depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions”: [2010] HCA 48 at [36], 273 ALR 122 at 131. The formula, it has been said, “operates as an invitation to Courts to enter on the merits of administrative decision-making”: Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330 at [37], 165 LGERA 203 at 220 per Tracey J. See also: WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [12] to [13] per Wilcox, Nicholson and Downes JJ; Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337 at [51] to [60], 251 ALR 633 at 648 to 651 per Tobias JA (Spigelman CJ and Macfarlan J agreeing). See generally: John McMillan, ‘Judicial Restraint and Activism in Administrative Law’ (2002) 30 Federal Law Review 335 at 361 to 364.

70    Whatever reservation must be exercised when considering whether “proper, genuine and realistic” consideration has been given to particular material, the importance of ensuring that proper consideration has been given to particular material is only heightened when it goes to a matter of central relevance and importance to the ultimate conclusions to be reached.

71    In the present statutory context, ss 106KD and 106L of the Health Insurance Act are both expressed in very different terms to those found within the Administrative Appeals Tribunal Act and the Migration Act. And ss 106KD and 106L also impose different requirements upon the Committee when preparing a draft report as opposed to a final report. The difference in language between these two provisions may assume some importance. Section 106L, directed as it is to the contents of a final report, does not impose any requirement to provide “reasons” – as opposed to “findings”. Section 106KD does incorporate a requirement to provide “reasons”: s 106KD(1A). And the reference to “findings” in both provisions may well be confined to a finding “in respect of the relevant service” or a finding as to “inappropriate practice” as opposed to a more generally expressed requirement to provide “findings of fact”. It may be that it was for this reason that Counsel for the Applicant did not seek to place reliance upon s 25D of the Acts Interpretation Act 1901 (Cth) as a further basis upon which the Final Report could be challenged. Nor was any submission directed to any failure to comply with s 106KD(1A).

72    Nevertheless, it remains important that the Committee expose the factual basis upon which it was proposing to proceed in its Draft Report and the “findings” upon which its Final Report is founded. Notwithstanding differences in statutory language, the requirements imposed in the present statutory context to provide “findings” and “reasons” remain important elements of the procedural protection afforded by the legislature to the medical practitioner, albeit at different stages in the deliberations of the Committee. Those requirements have “important work” to do both insofar as the medical practitioner and the Determining Authority are concerned.

73    The omission from the Final Report of any express reference to the “expert medical opinions” contained within the August 2009 Submission, however, does not necessarily lead to any conclusion that it was not taken into account by the Committee.

74    Given the apparent importance given in both the Draft Report and the Final Report to the instances of “recurrent issues” of “concern” to the Committee and the examples it there provided as to the “clinical competence” of Dr Reece, it may be accepted that specific submissions going to those examples would be a matter deserving of particular consideration by the Committee. It may, for present purposes, further be assumed that:

    the “expert medical opinions” material referred to in the August 2009 Submission was in fact a “submission” as opposed to “evidence”.

Some need for caution should nevertheless be expressed. The forum in which a medical practitioner is afforded the opportunity to adduce “evidence” is at the “hearing” conducted by the Committee prior to the preparation of its “draft report”. Thereafter the only express entitlement afforded to a medical practitioner is to make “written submissions suggesting changes to the draft report”: s 106KD(3). Section 106L(1A) provides for the course to be pursued by the Committee “if the person under review has been given a notice under subsection 106KD(3) inviting submissions on changes to the draft report”. But such a distinction need not be further pursued.

75    But the divergences in the present proceeding between the Draft Report and the Final Report, it is considered, are such as to deny any substance to the submission that the August 2009 Submission was not – at the very least – taken into account.

76    Nor is it considered that there was any failure to take into account that part of the August 2009 Submission setting forth the “expert medical opinions” upon which specific reliance was placed in oral submissions.

77    It is unquestionably the case that it would have been far preferable for the Committee in its Final Report to have referred to the submissions made on behalf of Dr Reece and to the competing views of the medical practitioners there referred to. It would also have been far preferable for the Committee to have explained why it adhered to its own views previously expressed in its Draft Report that Dr Reece had engaged in “inappropriate practice”.

78    But its failure to refer to this “specific evidence” and its failure to make express “findings” as to whether such evidence was or was not in accordance with generally accepted medical practice does not lead to a conclusion that this “specific evidence” was not also taken into account. Section 106L does not require the Committee to refer to the evidence or “specific evidence” upon which its “findings” were based or to refer to “submissions” that may have been made. Nor does s 106L impose any requirement to make “findings” in respect to “specific evidence” or “submissions” which may have been advanced on behalf of a practitioner. No contrary construction of s 106L was advanced on behalf of the Applicant.

79    Such a conclusion, it is considered, is consistent with the statutory scheme set forth in Division 4 of Part VAA of the Health Insurance Act. Any different conclusion would impose upon the Committee a requirement “to refer” in its Final Report to the evidence upon which its findings of fact are based and possibly “to refer” to submissions made and a requirement to expressly state why specific evidence or submissions have not led it to make “findings” different to those in fact made. Any different conclusion or construction of Division 4 of Part VAA would only encourage a course whereby medical practitioners may seek to scour the “evidence” or “submissions” advanced before a Committee with a view to discerning some “evidence” or “submissions” that have not been expressly referred to. However desirable it may be for a Committee to do so, such requirements have not been imposed upon the Committee by the legislature. A failure to refer to the “expert medical opinions” advanced on behalf of Dr Reece, and to make “findings” in respect to those opinions, may well place the Determining Authority in a position where it is not as informed as it otherwise may have been. But such difficulties are of no immediate significance.

80    The second Ground of Appeal is rejected.

Conclusions

81    It is thus concluded that the Notice of Appeal should be dismissed.

82    The Solicitor General of the Commonwealth, it may be noted, assisted the Court in respect to the hearing of the Notice of Motion but took no part in the hearing of the Notice of Appeal. He had, however, filed an outline of written submissions in respect to the appeal. When the decision was made refusing leave to amend, he sought and was granted leave to withdraw from the proceeding.

83    There is no reason why the normal rule as to costs should not apply, namely that costs should follow the event.

ORDERS

84    The Orders of the Court are:

1.    The Notice of Motion as filed on 6 January 2011 seeking leave to amend the Notice of Appeal is dismissed.

2.    The Appellant is to pay the costs of the Fourth Respondent of and incidental to the dismissal of the Notice of Motion and such costs as were incurred in respect to the appeal.

3.    The Notice of Appeal as filed on 11 October 2010 is dismissed.

4.    The Appellant is to pay the costs of the First, Second and Third Respondents.

Associate:

Dated:    11 March 2011