Reece v Webber

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: Draft Report August 2009 Submission 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. In any case, ignoring the Chair's mistake about the date of the service (although I don't concede it is insignificant) the implicit criticism behind the Chair's question to Dr Reece and the very brief description of the Committee's criticism on page 4 of its Draft report may be that Dr Reece should have ordered an ECG at the time of his referral to Dr Aroney. That view is not shared by Dr Aroney. I enclose the report of Dr Aroney, consultant and interventional cardiologist and Associate Professor of Medicine at the University of Queensland, dated 23 June 2009 in which he strongly supports Dr Reece's clinical management of this patient and disputes the value of a resting ECG in this patient's circumstances: "I believe that your assessment and management of this patient was exemplary and that referral for an urgent exercise stress test was very appropriate. As he had not had any prolonged or recurrent chest pain it was most unlikely that a resting ECG would have shown any abnormality and indeed the resting ECG which I performed the day I saw him was entirely normal." I also enclose the report of Dr David Colquoun, cardiologist and Associate Professor of Medicine at the University of Queensland, who is similarly very supportive of Dr Reece's clinical management of this patient and who likewise does not share the Committee's apparent criticism of Dr Reece's decision not to perform a resting ECG on this patient: "Regarding the patient who had chest pain for less than one minute you did the appropriate and in fact above the call of duty management by ordering a stress test. An ECG after a classic episode of equivocal angina is normal in almost all individuals within a few minutes of relief of pain. Your patient had chest pain for about one minute with no other features to suggest myocardial ischaemia. You saw the patient 24 hours after this very brief episode. It was very reasonable not to do a resting ECG. You are to be congratulated for ordering a prognostic stress test. The stress test was strongly positive; he had urgent cardiological review and then went on to have bypass grafting. Your clinical suspicion the [sic] he needed to have a prognostic stress test possibly saved his life." For the Committee to rely on that service (whichever service it is) to find clinical incompetence against Dr Reece's [sic] is utterly unreasonable. The manner in which the Committee has sought to make that finding is most unfair. 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. I enclose a letter from Dr Heiner who is a widely respected senior chest physician in Brisbane and who previously was a clinical professor of respiratory medicine in North America. I quote: "…I think this is an unjust criticism. … This is standard practice." I know that the common practice is for general practitioners and specialists to be sure that the patient is to have an x-ray no longer than six weeks." "… He responded well, recovered and returned to his business activities, and is now asymptomatic." It seems that the Committee members are unaware of this standard practice and calls into question the likelihood of the general body of GPs finding such practice unacceptable. In a letter of 24/07/09 Dr Heiner writes: "1. It is routine an [sic] in fact established practice to obtain a chest X-ray six weeks after a patient has been diagnosed with pneumonia. In fact a definition of non-resolved pneumonia is present is [sic] the x-ray has not returned to normal within a six week period. If the pneumonia has not resolved investigations must occur… 2. If pneumonia had not resolved and a general practitioner had not reviewed the x-ray at six weeks, then in my opinion the treating doctor would be culpable. In my experience many doctors who treat patients with pneumonia will order the x-ray to be performed prior to the next visit at six weeks. Consequently the patient is not examined before the x-ray is obtained…. The pertinent point is to see the x-ray. Hence I think it is unfair for you to be criticized for not examining the patient's chest before ordering the x-ray. 3. In my experience it takes at least five minutes to obtain blood from a patient with "good veins". It takes longer in a patient with no veins, and presumably in a person who has been a drug user, extremely difficult. It may take 10 minutes. Hence I find your testimony believable that it took at least 20 minutes to see [XX]." (emphasis added) 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. At the hearing before the Committee on 14 November 2008 Dr Reece tendered without objection exhibits 12 and 13 being the report of Dr John Cameron, consultant neurologist, dated 27 October 2004 and a typed summary page titled 'Headache management of [XX]'. I enclose the report of Dr John Cameron dated 25 June 2009. Dr Cameron's opinion is: "It is quite obvious that [XX]'s headache disturbance was of longstanding and was associated with emotional upheaval in her life and depression." She has seen a number of neurologists and no abnormalities have ever been detected on examination. She has had what would be regarded as extensive neurological assessments and even CT head scans with nothing turning up. I believe you rightly identified that the issue here was one of a psychological/psychiatric disturbance and that her headache disturbance was a symptom of this underlying psychiatric/stress problem. Obviously the management depends on addressing the psychological issues. Only when that is under control will the headache disturbance come under control. … I cannot see any specific need for you to be doing repeated formal neurological examination on her once the diagnosis of a psychological disturbance has been made and there has been no change in her symptomatology on subsequent reviews."

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. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson, Flick and Reeves JJ.