Reece v Webber [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 Act 1973 (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 [2001] HCA 17, 205 CLR 507, considered Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323, considered NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24, considered Penhall-Jones v New South Wales [2007] FCA 925, referred to R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10, 122 CLR 546, considered Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342, considered SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358, referred to SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, considered Sobey v Nicol [2007] FCAFC 136, 245 ALR 389, considered SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389, referred to SZHOP v Minister for Immigration and Multicultural Affairs [2006] FCA 1640, cited SZHPI v Minister for Immigration and Citizenship [2008] FCA 306, cited SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76, referred to SZLVN v Minister for Immigration and Citizenship [2008] FCA 1301, cited University of Wollongong v Metwally (No 2) [1985] HCA 28, 60 ALR 68, considered VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, referred to WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364, cited WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106, 80 ALD 435, referred to Williams v Minister for the Environment and Heritage [2003] FCA 535, 74 ALD 124, cited John McMillan, 'Judicial Restraint and Activism in Administrative Law' (2002) 30 Federal Law Review 335