An ATO public servant was treated with sarcasm, aggression and bias by the Administrative Appeals Tribunal when she appealed a decision to refuse her a workers compensation-funded breast reduction, according to papers lodged with the Federal Court.
Lawyers for Roseanne Howes say the tribunal judge, who told Ms Howes to go to Jenny Craig to lose weight instead of undergoing the surgery, was unreasonable and unfair in her handling of the case.
Ms Howes' appeal to the Tribunal was knocked back in January with AAT member Dr Marella Denovan upholding the decision by federal workplace insurer Comcare not to pay for the public servant's breast surgery.
Dr Denovan had little sympathy with Ms Howes' lawyers' argument that the surgery was necessary to help the serious neck and shoulder problems the ATO staffer suffered in the course of her office work.
The tribunal member decided that the primary purpose of the $20,000 surgery, and a tummy tuck undertaken at the same time, had been cosmetic and therefore the workers' compensation application "must fail".
Dr Denovan added that exercise or consultations with weight loss outfits Jenny Craig or Weightwatchers might be of more benefit and accused Ms Howes of being an unreliable witness who gave "selective" evidence to the tribunal.
But in a 22-page appeal notice to the higher court, Ms Howes' lawyers allege their client was treated with an outrageous lack of fairness and respect by the tribunal member who, they say, had pre-judged the case before she even heard the evidence.
Lawyer Walter Hawkins of Maurice Blackburn says not only did Dr Denovan make several serious errors of law in her decision, but she had made her mind up to decide against Ms Howes' case before much of the evidence and submissions had been heard.
In his appeal papers, Mr Hawkins writes that Dr Denovan aggressively cross-examined the public servant and even "usurped" the role of Comcare's barrister in interrogating Ms Howes.
The appeal papers further allege that Dr Denovan openly criticised Comcare's barrister for not going hard enough on Ms Howes.
The Federal Court will be told that Dr Denovan was sarcastic and aggressive to Ms Howes in the tribunal hearing, which unlike a court, is supposed to be non-adversarial.
At one point in proceedings, the appeal notice alleges, Ms Denovan stood up and walked out of the room with a "dismissive wave of the hand" to Ms Howes' barrister.
Lawyers for the public servant have also taken serious exception to what they say was Ms Denovan's "conspiracy theory" that Ms Howes had engaged in a co-ordinated plan to make taxpayers pay for her cosmetic surgery.
Mr Hawkins was scathing of Ms Denovan's general handling of the case.
"The volume of conveniently erroneus constructions, adoption of erroneus facts, the aggressive demeanour, the adoption of the role of counsel for the respondent (Comcare), the admission of prejudgement, the willingness to attribute bad faith and dishonesty to the applicant, the willingness to engage in prejudicial speculation...collectively point to the actual bias of the tribunal," the appeal papers state.
A hearing date for the Federal Court case has not been set.