Reece v Webber

Case [2011] FCAFC 33


FEDERAL COURT OF AUSTRALIA

Reece v Webber [2011] FCAFC 33

Citation: Reece v Webber [2011] FCAFC 33
Appeal from: Reece v Webber [2010] FCA 1025
Parties: DR ALBERT STUART REECE v TONY WEBBER; BERNARD KELLY, KATHLEEN KEATING AND AILSA LAIDLAW CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 507; THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH); AND THE COMMONWEALTH OF AUSTRALIA
File number: NSD 1342 of 2010
Judges: JACOBSON, FLICK AND REEVES  JJ
Date of judgment: 11 March 2011
Catchwords:

ADMINISTRATIVE LAW – reasonable apprehension of bias – statutory requirement to provide draft report – failure to consider submissions made – need to separately address expert opinions in submission

PRACTICE AND PROCEDURE – application to amend Notice of Appeal – argument not raised below – limited factual dispute – application to adduce further evidence

Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Health Insurance Act1973 (Cth) ss 82, 84, 85, 101, 102, 106, 106A, 106KD, 106L, 106T
Cases cited:

Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337, 251 ALR 633, cited
Australian Postal Corporation v Sellick [2008] FCA 236, 101 ALD 245, cited
Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, 148 FCR 446, cited
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 75 ALD 630, considered
British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414, cited
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, considered
CDJ v VAJ [1998] HCA 67, 197 CLR 172, referred to
Chamberlain v The Queen (1983) 72 FLR 1, referred to
Commissioner of Taxation v Osborne (1990) 26 FCR 63, 95 ALR 654, referred to
Commissioner of Taxation v Walker (1984) 2 FCR 283, referred to
Cottrell v Wilcox [2002] FCA 232, considered
Dart Industries Inc v Décor Corporation Pty Ltd (1989) 15 IPR 403, referred to
Dreamtech International Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 103, 187 FCR 352, considered
Johnson v Johnson [2000] HCA 48, 201 CLR 488, considered
Jones v Australian Competition and Consumer Commission [2002] FCA 1054, 76 ALD 424, cited
Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216, cited
Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Gummow J, 11 December 1987), 14 ALD 291, cited
Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCA 330, 165 LGERA 203, considered
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 273 ALR 122, considered
Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, referred to
Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, 106 FCR 426, referred to
Minister for Immigration and Multicultural Affairs v Jia Legeng

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Details
AGLC
Reece v Webber [2011] FCAFC 33
Case
[2011] FCAFC 33
Decision Date

CaseChat Overview and Summary

The case of Reece v Webber involved an appeal against the decisions made by a Committee under the Health Insurance Act. The central issue in this case was whether the Committee had breached statutory requirements when preparing its draft report and final report. Specifically, the appellant argued that the Committee failed to consider the submissions made by the practitioner under review and did not separately address the expert opinions in those submissions. Furthermore, the appellant sought to amend the Notice of Appeal to include an argument not previously raised and to adduce further evidence.

The court was tasked with determining whether the Committee had complied with the statutory requirements outlined in sections 106KD and 106L of the Health Insurance Act. It was established that section 106KD mandates the preparation of a draft report detailing preliminary findings, with an obligation to provide these to the person under review and invite submissions. Section 106L, in turn, requires the Committee to prepare a final report considering any submissions received within the specified timeframe. The court had to assess if the Committee had adhered to these requirements and if there was any procedural unfairness.

In its reasoning, the court found that the Committee had not breached the statutory requirements by failing to consider the submissions made by the practitioner under review. The court noted that the Committee's draft and final reports were compliant with the statutory obligations as outlined in sections 106KD and 106L. The court further held that there was no reasonable apprehension of bias or procedural unfairness in the Committee's handling of the submissions. Additionally, the court rejected the application to amend the Notice of Appeal, finding that the new arguments and evidence proposed did not constitute a limited factual dispute warranting amendment. Consequently, the appeal was dismissed.

The final orders of the court were that the Notice of Motion seeking leave to amend the Notice of Appeal was dismissed, and the appellant was ordered to pay the costs of the Fourth Respondent for the dismissal of the Notice of Motion and the appeal. Additionally, the Notice of Appeal itself was dismissed, and the appellant was ordered to pay the costs of the First, Second, and Third Respondents. The court applied the standard rule that costs should follow the event.

Orders

Orders of the court

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:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second Ground of Appeal is rejected. CONCLUSIONS It is thus concluded that the Notice of Appeal should be dismissed. 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. There is no reason why the normal rule as to costs should not apply, namely that costs should follow the event. ORDERS 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.

Ratio Decidendi

Legal Principle Established

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. 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:106LFinal 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.