FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2012] FCAFC 118

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Ms Clement appeals from the dismissal of her appeal against a decision of the Administrative Appeals Tribunal (AAT). The AAT decision affirmed 11 decisions by Comcare rejecting Ms Clement’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Comcare rejected Ms Clement’s claims for payment of compensation for incapacity and medical treatment expenses in relation to her accepted condition. The AAT found that, although Ms Clement was incapacitated for work from time to time as a result of her condition, neither the injury nor the incapacity were caused by her work and neither her incapacity nor her requirement for medical treatment arose from a compensable injury under the SRC Act.

2    Ms Clement also appeals from the determination by the primary judge of three interlocutory applications:

1.    Filed 30 June 2011 seeking the determination of two questions as follows:

(a)    Has the applicant's employment in the Australian Public Service ceased?

(b)    Has the onus to rehabilitate the Applicant been discharged?

2.    Filed 2 November 2011 seeking orders that the Court determine the causes of death of her former husband and her partner and to determine the extent to which their deaths invalidate certain unspecified laws of the ACT.

3.    Filed 23 November 2011 seeking a sealed copy of orders by which the hearing before the primary judge on 20 February 2012 was fixed and associated procedural measures were made.

3    The primary judge dealt with the three interlocutory applications. Her Honour decided that the first two were not properly before her in the appeal from the decision of the AAT and ordered that they be dismissed. The primary judge found that the third interlocutory application had been overtaken by the event of the hearing and ordered that it be dismissed. Justice Foster granted Ms Clement leave to appeal from that part of the judgment of the primary judge that constituted a determination of those interlocutory applications.

The decision of the AAT

4    In coming to its conclusion, the AAT considered, in some detail, the competing medical evidence in respect of Ms Clement. The AAT said that it preferred the evidence of three medical experts over others and explained, again in some detail, its reasons for doing so. The AAT said (at [18]) that it was reasonably satisfied, and found, that:

(a)    Ms Clement suffers from a Delusional Disorder;

(b)    the Delusional Disorder was present and operative prior to September 1991 and persists presently;

(c)    the perceptions and beliefs that Ms Clement held (and holds) in relation to her discovery of data security issues in March 1991, especially concerning fears for her safety and the significance of her ‘discovery’, are not based in fact and are delusional;

(d)    these perceptions and beliefs were the products of disease: they focused on events in the employment but were not produced or materially contributed to by those events; and

(e)    the aetiology and causes of Ms Clement’s Delusional Disorder are simply unknown – it is possible that the condition has a constitutional basis, it is possible that it arose as a result of the head injury Ms Clement sustained in a motor vehicle accident in 1987, it is possible that events in her workplace added their measure and played a causal role, but none of these possibilities emerge from opaque uncertainty into the relative light of probability on the present evidence.

The decision of the primary judge

5    Ms Clement’s appeal to the primary judge was under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). As her Honour observed, the appeal may be brought only on a question of law. That Ms Clement has appealed against the judgment given by the primary judge does not mean that questions of fact may now be examined. The question is whether the disposition of the specified, asserted questions of law was attended with error as particularised in a ground of appeal. The primary judge characterised the sixteen matters said by Ms Clement to be questions of law and numerous associated grounds as grounds that the AAT:

(i)    lacked jurisdiction or power to make the decisions or otherwise erred in making the decisions in all of the circumstances,

(ii)    made such serious erroneous findings of fact as to amount to errors of law; and

(iii)    denied the applicant procedural fairness in numerous ways said to evidence bias by the AAT against the applicant.

6    Her Honour noted that the notice of appeal also contended that the AAT erred by reason of insufficient evidence.

7    Her Honour also characterised Ms Clement’s submissions as raising, in addition to and/or in support of some of the groups of claims in the notice of appeal, the following grounds:

(i)    the legal requirements for closure of her rehabilitation program had not been met, and therefore the medical reports obtained by Comcare (and relied on by the AAT) were obtained unlawfully;

(ii)    the AAT unfairly excluded all the medical evidence on which the applicant relied; and

(iii)    it was a breach of procedural fairness for the AAT to rely on the three illegally obtained medical reports.

8    The primary judge noted that the AAT correctly identified that its task was to determine whether, as she claimed, Ms Clement was incapacitated for work as a result of a psychological injury during any relevant period and whether she incurred costs from medical treatment during any such period in relation to the injury. Further, her Honour found, the AAT correctly identified this task as involving asking whether it was reasonably satisfied that Ms Clement had suffered a compensable injury of the kind or in the manner alleged and previously accepted by Comcare. If so, as the AAT said, it would have been necessary to determine whether the incapacity for work Ms Clement claimed was “as a result of” that injury. Her Honour observed that the AAT noted the meaning to be given to “as a result of” and “in relation to” within the meaning of the SRC Act. Her Honour also said that the AAT appreciated that the relationship between medical treatment and injury was to be determined as a matter of probability, applying the reasonable satisfaction civil standard and that mere possibility is not sufficient, even if the possibility is real rather than fanciful. The AAT’s reasoning was, her Honour said, consistent with Telstra Corporation v Hannaford (2006) 151 FCR 253 at [57]–[59] and gave effect to the statutory scheme.

9    The primary judge concluded that no question of law capable of invalidating the AAT’s decision arose from these aspects of its reasoning.

10    At [16], the primary judge summarised Ms Clement’s submissions as to various asserted breaches of procedural fairness that were said to demonstrate an overall bias of the AAT, as follows:

(i)    questioning from AAT members to try to show she was deluded;

(ii)    the alleged fact that the AAT did not consider her evidence;

(iii)    the alleged failure of the AAT to make factual findings in relation to points the applicant raised;

(iv)    the AAT’s erroneous references to her “perceptions and beliefs” as these were not “perceptions and beliefs” but statements about what actually happened; and

(v)    the failure of the AAT to take account of the evidence it heard.

11    Her Honour summarised further submissions (at [17]) as being to the effect that:

(i)    the finding of delusional disorder was wrong and, in any event, the disorder involves non-bizarre beliefs and, as such, is nothing more than the “medicalisation” of normal people;

(ii)    the AAT misunderstood the criteria for delusional disorder as it relied on so-called bizarre beliefs of the applicant when the criteria for the disorder is non-bizarre beliefs;

(iii)    the AAT showed its bias in numerous ways including by acting in concert with Comcare and her employer, refusing to take notice of what the applicant said, and refusing to consider the question (sic) whether the applicant was still employed and thus that the termination of her rehabilitation plan was unlawful and invalid;

(iv)    the applicant’s fears for her safety and that of her family were not delusional but based on the actual circumstances existing in 1991 and thereafter;

(v)    the AAT wrongly gave weight to false reports or forgeries attached to her personnel file;

(vi)    the AAT made unfair findings about the applicant being a whistleblower when other people called her a whistleblower and her fears being grandiose when they were soundly based in fact, especially given the risks to people in the ACT under Mental Health (Treatment and Care) Act 1994 (ACT), all of which demonstrated that the AAT needed expert assistance to understand what was happening in the Australian Bureau of Statistics (ABS) where the applicant was employed at the time;

(vii)    the AAT got its dates wrong as nothing was happening in early 1991 and ignored the applicant’s explanation of a letter being incorrectly dated;

(viii)    the AAT acted outside its proper functions by trying to prove the applicant was delusional rather than determining what had actually happened in the ABS at the time;

(ix)     the AAT’s attention was focused substantially on events that occurred around 1991 and not on the relevant periods for which the applicant’s claims were made;

(x)    the AAT did not give proper weight to the report of the Merit Protection and Review Agency (MPRA) from the time which supported the applicant’s case;

(xi)    the AAT unfairly made the applicant justify inclusion of the T documents in evidence when this was a matter for the respondent to justify and unfairly called on the applicant to explain what crimes had been committed again demonstrating the fact that the AAT needed expert help;

(xii)    the AAT’s reasons contain numerous footnotes which are difficult to follow and often incorrect; and

(xiii)    the failure of the ABS to rectify the security problems identified by the applicant caused her anxiety and depression as she knew it to be an indictable offence pursuant to s 19 of the Census and Statistics Act 1905 (Cth) and therefore the AAT could have concluded only that the applicant’s injury arose out of workplace events.

12    Her Honour also referred to submissions by Ms Clement that:

    She was ‘not given a reasonable opportunity to submit to the AAT all the material she considered relevant. Instead, she was repeatedly interrupted about the “T documents” and her time for giving evidence was reduced. The applicant submitted further that Doctors Skinner, Saboisky and Tym were provided with inaccurate transcripts of her evidence before they gave evidence’ (at [18]).

    The AAT had no evidence before it on which to base its findings that ‘(i) she suffers from a delusional disorder; (ii) she suffered from the delusional disorder prior to 1991; and (iii) her interpretation of events was the product of illness.’ Ms Clement ‘strongly objected to these findings and their publication which exposed her to the serious deprivation of human rights possible in the ACT by reason of its mental health legislation’ (at [19]).

    At the time of her husband’s death in 1991 the “ACT authorities” were subsequently involved in numerous breaches of the law.

    She was misled by Comcare, the AAT and ABS when they informed her that she would not be entitled to compensation or ongoing rehabilitation after accepting redundancy.

    The AAT made an error of law in refusing to refer questions of law to the Federal Court of Australia under s 45 of the AAT Act.

13    We find this summary helpful and apposite to the amended notice of appeal and submissions before this Court.

14    Her Honour made the general observation (at [22]) that:

    Most of the questions said to be questions of law were not.

    Insofar as any question might be characterised as one of law, there was no error by the AAT which would have the effect of invalidating its decision.

    The complaints of bias and denial of procedural fairness, on objective analysis, were unfounded.

15    Further, her Honour pointed out that many of Ms Clement’s challenges amounted to complaints about the fact that the AAT preferred Comcare’s evidence and characterisation of facts based on that evidence. Her Honour found that these challenges were an impermissible attempt to have the Court review the merits of the claim. The Court could not do so by reason of s 44(1) of the AAT Act.

16    Ms Clement had also challenged decisions of two other judges of the Court, Emmett and Stone JJ, in the grounds of appeal before the primary judge. In Clement v Comcare [2007] FCA 2039, Justice Emmett dismissed proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Justice Stone heard what were purportedly appeals against Emmett J’s decision. In Clement v Comcare [2008] FCA 1780, her Honour heard Ms Clement’s application for leave to extend time to appeal the interlocutory orders of Emmett J dismissing her application under the ADJR Act as against Comcare. Her Honour dismissed the application for an extension of time and for leave to appeal. In Clement v Comcare [2008] FCA 1779, Stone J dismissed an application to have the court decide questions of law in relation to proceedings in the AAT. Some of the questions would have involved a challenge to the orders made by Emmett J. The primary judge pointed out that Ms Clement’s challenge to these decisions could not be made in the appeal from the AAT decision and were, in any event, based on an incorrect understanding of the Court’s jurisdiction and procedures. Further, her Honour said, it was apparent that these decisions did not prevent the AAT from hearing a merits review of the Comcare decision.

17    For reasons that her Honour gave at [25], she decided that the AAT was entitled to act on the material before it and properly did so. Further, the AAT correctly considered which Comcare decisions were before it for review.

18    For completeness as to the matters already dealt with and in relation to points not specifically dealt with, the primary judge provided answers to other matters raised by Ms Clement (at [29]):

(1)    The AAT did not unfairly exclude the applicant’s medical evidence. As the reasons at [19] and thereafter make clear, the AAT considered that evidence but preferred other medical evidence.

(2)    The AAT did not breach the requirements of procedural fairness by relying on the three medical reports it preferred. The reports were in evidence and the AAT was bound to take them into consideration.

(3)    The AAT was entitled to ask the applicant questions in order to understand the bases of her claims. Nothing in the general course of questions apparent from the transcript provides any basis for the allegations of denial of procedural fairness or bias by the AAT. The applicant gave extensive evidence both in chief and in cross-examination over three days.

(4)    The AAT considered the applicant’s claims and evidence. The AAT did not omit to make findings in the applicant’s favour. It simply preferred the respondent’s case to that of the applicant.

(5)    The AAT was aware that the applicant’s case was that nothing which occurred at the ABS was a mere matter of her perception or belief but, rather, happened in fact. Nevertheless, the AAT was entitled to make the findings it did which were reasonably open on the evidence before it.

(6)    Equally, the AAT was entitled to prefer the evidence of some of the medical experts to others. It was also entitled to act on the basis of that evidence it preferred in terms of its findings about delusional disorder.

(7)    Nothing in the available material, as referred to by the applicant or otherwise, supports the submission of bias on the part of the AAT either in the immediate case or over a lengthier period in its dealings with the applicant. The conduct on which the applicant relied, which extended back many years, viewed objectively, did not support the contentions in any way.

(8)    The AAT was entitled to act on the material before it. It was a matter for the AAT to determine the reliability of that material and the weight which should be given to components of it.

(9)    The submission about the AAT being confused or incorrect about the dates of events is not supported by the AAT’s reasons. In particular, the evidentiary basis for the AAT’s finding that the applicant was suffering from delusional beliefs by May 1991 is set out at [30] of the AAT’s reasons. Insofar as the AAT referred to correspondence which was incorrectly dated at [31], it appears that the AAT found this material “opaque” which indicates that it did not rely on it as material. Even if it did, at worst, the AAT has made an incorrect factual finding which does not give rise to any question of law in all of the circumstances; the finding was patently immaterial to the AAT’s conclusions.

(10)    The AAT considered the report of the MPRA (see at [37]). The weight which it gave to that report was a matter for the AAT to decide.

(11)    Given the evidence before it the AAT was bound to consider the question whether the applicant was suffering from a delusional disorder and its connection, if any, to the events surrounding the applicant’s employment. This did not involve the AAT in any act beyond its statutory remit.

(12)    The AAT’s approach to the T documents was reasonable given the nature of the case before it. As the respondent noted, the applicant was given numerous opportunities to identify the documents on which she relied. Similarly, the AAT was entitled to ask questions to clarify its understanding of the applicant’s evidence. Neither circumstance involved any denial of procedural fairness or bias.

(13)    The submission about incorrect transcripts of part of the applicant’s evidence being given to medical experts is not supported by the evidence.

(14)    The AAT’s choice to include footnotes to the material, whether the footnotes be difficult to follow or incorrect, cannot have the effect of vitiating its decision and involves no question of law.

(15)    Section 45 of the AAT Act involves a discretion on the part of the AAT. The AAT was not bound to refer any questions of law to this Court and made no error in not doing so.

(16)    The circumstances surrounding the deaths of her ex-husband and partner are matters which the applicant considers relevant to her case. The AAT dealt with these concerns at [38] on the basis that they were further manifestations of the applicant’s delusional disorder. For present purposes it is sufficient to note that irrespective of the strengths of the applicant’s beliefs, these matters are outside the scope of the review the AAT conducted and of this appeal, which is limited to questions of law from the AAT’s decision. For these reasons the second interlocutory application must also be dismissed.

(17)    The applicant’s concerns about her privacy are genuinely held. The difficulty is that the applicant chose to pursue her claims in the AAT (as was her right by reason of the statutory scheme for compensation). In carrying out its functions the AAT, however, was bound by the AAT Act. The provisions of that Act limit the circumstances in which a hearing may be other than in public (s 35) and generally requires the AAT to give reasons for its decision (s 43), which reasons “shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (s 43(2B)). The making of an application for review to the AAT in respect of a claim for compensation under the Compensation Act, as a matter of course, will involve the public disclosure of medical details about the applicant which, but for the claim and review, otherwise would ordinarily remain confidential between the applicant and her treating physicians.

(18)    The third interlocutory application relates to procedural matters and has been overtaken by the event of the hearing. Accordingly, it too must be dismissed.

THE GROUNDS OF APPEAL

19    Ms Clement’s grounds of appeal and written submissions are extensive. There are 56 grounds of appeal, all said to be based on errors of law by the primary judge. Some represent different ways of asserting the same point and some raise more than one point. The same can be said of the written submissions. Comcare has usefully provided a summary of the subject matter of those matters:

Jurisdictional issues – contending that for a number of different reasons the Tribunal did not have jurisdiction, or should not have exercised its jurisdiction. By failing to agree with those grounds of appeal, the Court also fell into error;

Factual Findings – contending that for a number of different reasons the Tribunal erred in law in reaching the findings that it made. By failing to agree with those grounds of appeal, the Court also fell into error;

Procedural Fairness – again contending for a number of different reasons that the Tribunal erred in law by denying the applicant procedural fairness. Again, by failing to agree with those grounds of appeal, the Court also fell into error; and

Interlocutory Applications – By failing to find for the appellant in respect of her interlocutory applications, the Court fell into error.

20    These issues largely mirror the issues that were before the primary judge.

21    Grounds of appeal 10, 18 – 23 and 45 can loosely be described as jurisdictional arguments.

22    Grounds 1, 2, 4, 6, 11, 14, 16-17, 29-32, 36 and 37 relate to findings of fact reached by the AAT and the AAT’s evidentiary conclusions.

23    Grounds 1, 3, 6, 12, 15, 24-27, 33, 35, 38, 47-53 and 56 appear to relate generally to arguments as to procedural fairness.

24    Grounds 7 – 9, 13, 40 – 46 and 54 – 55 deal with the contention that the dismissal of the interlocutory applications involved errors of law.

25    In addition, by ground 28, Ms Clement contends that ‘the AAT applied the wrong legal test in construing the test for relation of the Applicant’s claims for incapacity payments to her injury, as the test of the relation between medical expenses and her injury’.

26    The remaining grounds relate to matters that took place after the AAT decision or clearly, on their face, disclose no question or error of law.

General matters

27    The primary judge found at [23] that ‘the AAT’s reasons for decision disclose that it correctly identified the task it was required to perform, identified the principles applying to that task in orthodox terms, weighed up the competing material it had available to it, and drew its conclusions based on its own weighing of that material.’ Apart from the mere assertion in her grounds of appeal, Ms Clement has not established that, contrary to the findings of the primary judge, the AAT applied the incorrect test in relation to Ms Clement’s claims. No error arises from her Honour’s finding that the AAT had, and properly understood and exercised, the jurisdiction to hear and determine the applications before it.

28    Ms Clement’s submissions canvass the subject matter of a number of proceedings that she has commenced in the Court and in the AAT that are not the subject of this appeal. In particular, she addresses a number of matters in connection with her employment at the ABS, which she says are relevant to the motives of Comcare. She asserts that there was conduct in breach of the Crimes Act 1914 (Cth), in connection with a national security threat prior to and including 1991. Those concerns were the subject of Clement v Comcare [2011] FCA 404, a decision of Cowdroy J and are not properly before this Court.

29    Ms Clement also raises a number of matters citing, inter alia, Magna Carta 1215 (Eng) and the Act of Settlement 1701 (Imp) in the context of contentions concerning the Australian Capital Territory (Self Government) Act 1988 (Cth) (the Self Government Act). These are not relevant to this appeal except to the extent that in one of the interlocutory applications she seeks orders concerning the death of her children’s father and of her former partner, one of which is said to constitute a breach of s 23(1A) of the Self Government Act.

30    As to the AAT decision the subject of these proceedings, Ms Clement’s complaint, as expressed by her, is that it found that the medical reports that she obtained were to be disregarded in favour of the medical reports obtained by Comcare. She says that the “weight of the merits” is on her side. As the primary judge observed at [27], this seeks to review the merits of the AAT decision, which is not a question of law for determination by this Court.

Jurisdictional issues

31    Ms Clement’s jurisdictional arguments may be generally characterised as:

    the AAT failed to consider the current status of the rehabilitation program when it had jurisdiction to do so;

    the review of her compensation by the AAT had no legislative basis and the medical reports obtained as part of that review were illegally obtained;

    the AAT did not have jurisdiction to determine the question of whether the appellant’s condition was properly compensable (the Hannaford issue);

    the deaths of Ms Clements husband and former partner were not outside the scope of the appeal to the primary judge; and

    the effect of Ms Clement’s matters which had been before Stone J and Emmett J prevented the AAT from proceeding to determine the reviewable decisions

Rehabilitation program

32    Ms Clement contends that the AAT failed to consider the status of her rehabilitation program. This also relates to her allegations that the AAT failed to hear the first notice of motion, dated 30 June 2011. She makes numerous references to the jurisdiction of the AAT, s 37 of the SRC Act and her assertion that Comcare terminated her rehabilitation program prematurely. Section 37 relevantly provides that a rehabilitation program may be provided or arranged where an employee has suffered an injury resulting in an incapacity for work or an impairment, as those matters are defined in the SRC Act.

33    There are a number of answers to the grounds of appeal based on the AAT’s failure to consider the status of the rehabilitation program. The AAT referred to the issue of the alleged premature and illegal termination of the rehabilitation program and said, at [40] that it was not necessary to decide the question because, in the absence of injury, there can be no entitlement to rehabilitation under the SRC Act. The AAT also observed that while Ms Clement had objected to the service provider and had sought reconsideration of that aspect, no reconsideration had, apparently, eventuated.

34    The AAT concluded that reconsideration of the rehabilitation program was not properly before it and that it had no jurisdiction in relation to the rehabilitation program; ‘it had not been raised or considered in any decision-making process at the primary or reconsideration stages in any of the matters that Ms Clement had placed before the Tribunal’.

35    The primary judge held at [25] that the AAT was correct to find that it had no jurisdiction. Her Honour then concluded that, given the nature of an appeal under s 44(1) of the AAT Act, Ms Clement’s first interlocutory application of 30 June 2011 could not be entertained as part of the appeal and should be dismissed.

36    We see no error in her Honour’s conclusions.

37    We note that counsel for Comcare informs us that the question of Ms Clement’s present entitlement to rehabilitation and Comcare’s refusal to reinstate the rehabilitation program is presently before the AAT and that a decision of Comcare of 23 July 2010 has been appealed by Ms Clement and has been stayed pending the determination of this appeal. Comcare also points out that no proceedings were instituted by Ms Clement over Comcare’s decision to close the rehabilitation program, either to Comcare under s 38 of the SRC Act or to the AAT under s 64.

Review of compensation and the medical reports

38    Ms Clement also claims that the review of her compensation by Comcare had no legislative basis and that Comcare made her attend, under s 57 of the SRC Act, to “disreputable doctors”. This is also linked to her contentions about the rehabilitation program, as she asserts that the medical reports were illegally obtained as part of the review of that program. It follows, she says, that the AAT took into account illegally obtained material.

39    As the primary judge observed at [25], the AAT’s conclusion that the rehabilitation program was not before it for review undermines the assumptions inherent in Ms Clement’s case about the medical reports being illegally obtained. Further, as her Honour observed, the terms of s 57 of the SRC Act do not support the conclusion that the history of the matter precluded Comcare from obtaining further medical reports. Nor does s 57 preclude the obtaining of further medical reports because of a rehabilitation program. We agree with the primary judge that nothing in the available material supports the conclusion of illegality, irrespective of the status of Ms Clement’s employment and rehabilitation program, and that the AAT was entitled to act on the material before it.

40    As to Ms Clement’s assertion that Comcare had previously accepted liability under s 14 of the SRC Act, such acceptance does not negate the power made available under s 57 to require a medical examination.

The initial decision by Comcare to accept liability

41    Ms Clement contends that the Tribunal had no jurisdiction to undertake a review of the initial decision to accept liability for the injury. The primary judge found at [26] that the status or alleged inadequacy of Comcare’s decisions do not remove the AAT’s jurisdiction, Comcare’s initial decision to accept liability was not before the AAT for review and consistently with the reasoning in Hannaford, the initial decision did not need to be before the AAT before it could review the Comcare decisions.

42    Ms Clements contends that Hannaford does not apply and that Hannaford gives no effect to the statutory scheme. We see no error in her Honour’s reasoning.

The circumstances of the deaths of Ms Clement’s ex-husband and former partner

43    The primary judge said at [29] that the circumstances of the deaths of Ms Clement’s ex-husband and her former partner and her beliefs in that regard were outside the scope of review conducted by the AAT and of the appeal to her Honour. Her Honour dismissed the second interlocutory application. That decision is clearly correct.

Earlier interlocutory decisions

44    Ms Clement makes a number of submissions in relation to earlier interlocutory decisions of Emmett J and Stone J. Ms Clement contends that the ‘appeal’ in those interlocutory applications remains undetermined, that one of the applications was not listed and that by dismissing the interlocutory application, the Court refused to entertain the substantive matters in those interlocutory applications.

45    The primary judge correctly found that the interlocutory decisions of Emmett J and of Stone J were not properly before her for consideration. Justice Emmett’s decision did not involve his Honour remitting any part of that application to the AAT. Counsel for Comcare informed us that a special leave application was filed by Ms Clement in the High Court and then withdrawn. There was nothing in respect of those decisions that was properly before the primary judge; there was nothing arising from those decisions which prevented the AAT proceeding from hearing the application before it, as her Honour concluded. If follows that, contrary to Ms Clement’s assertions, her matters in those proceedings were dealt with. The decisions of Emmett J and of Stone J had no effect on the hearing in the AAT, or the appeal to the primary judge.

Factual findings

46    A number of Ms Clement’s grounds of appeal relate to findings of fact made by the AAT. These do not involve questions of law and could not be reviewed by the primary judge, nor can they be reviewed by this Court on appeal. The primary judge correctly observed that a question of law does not arise if the AAT made findings of fact that were open to it on the evidence which, as her Honour observed, is apparent from the AAT decision. That an opposite conclusion could have been reached is insufficient to amount to an error of law (MIMA v Betkoshabeh (1999) 55 ALD 609).

47    A number of Ms Clements grounds of appeal relate to allegations that the evidence before the AAT was insufficient where Comcare had not tendered evidence and/or where Ms Clement’s evidence was unchallenged. In addition, Ms Clements says that documents before the AAT were forgeries and that medical reports were unlawfully obtained.

48    The primary judge found at [25] that the AAT was entitled to act on the material before it. It was a matter for the AAT to determine the weight which should be given to evidence. No error is apparent in her Honour’s approach to the evidence that was before the AAT.

Procedural fairness/Procedural matters

49    Ms Clement raised a number of procedural fairness arguments which she claims involve an error of law by the primary judge, some of which are also said to demonstrate bias. These arguments generally include:

    the way in which her case was listed and managed involved procedural unfairness;

    the procedure by which the Court dealt with the interlocutory applications was improper;

    documents were relied upon by the Court that should not properly have been before the Court;

    not giving Ms Clement a reasonable opportunity to submit all the material she considered relevant to the issues to be addressed;

    providing “biased transcript extracts” to Drs Skinner, Saboisky and Tym and “tampering” with witnesses;

    the publication of the AAT decision was a violation of her privacy; and

    The AAT’s refusal to accept certain documents into evidence.

50    Ms Clement complains about the way in which the case was listed and managed. This complaint was raised in the grounds of appeal, submissions and the subject matter of the third interlocutory application, which relates to procedural matters concerning applications to the Court prior to the hearing. Without criticism, the matters raised by Ms Clement demonstrate a misunderstanding of listing and case management processes of the Court. The matters in the third interlocutory application were, as the primary judge said at [29], overtaken by the event of the hearing and her Honour correctly dismissed the third interlocutory application.

51    Ms Clement contends that the dismissal of interlocutory applications involves a “very serious judicial responsibility” and complains that Comcare was not required to make out a case before the primary judge, as it was not called on to address the interlocutory applications in oral argument. Comcare had filed written submissions for the hearing before the primary judge. Her Honour was not, of course, required to seek further oral submissions from Comcare. No error is apparent in her Honour’s approach to the determination of the matters before her.

52    Ms Clement says that there is a problem if the Federal Court Rules 2011 (Cth) did not permit consideration of documents referred to in affidavits in the determination of her appeal because they were not considered documents before the Court. Again, without criticism of Ms Clement who is self-represented, that submission demonstrates a misunderstanding of the Court’s jurisdiction under the AAT Act.

53    As to the assertion that she was not given a reasonable opportunity to present her case, Comcare points out that Ms Clement’s evidence before the AAT took three days and that she was given ample opportunity to refer to and to tender supporting documents. Ms Clement has not shown that there was bias or a denial of procedural fairness in this respect.

54    Ms Clement says that improper use was made of the transcript of her evidence which, she asserts, contained serious transcription errors. She asserts that incorrect transcripts were put to witnesses during the AAT proceedings. Comcare has referred the Court to an error in the transcript of Ms Clement’s evidence that was provided to one or more of the medical experts whose reports were before the AAT. That error, which appears to be a typographical error, clearly had no bearing on the conclusions in the reports or on the AAT’s evaluation of the medical evidence. The asserted serious transcription errors and any effect of them have not been substantiated. Nor have Ms Clement’s allegations of “witness tampering” by Comcare been substantiated.

55    Ms Clement expressed concern about the publication of the AAT decision, which refers to her medical diagnosis, and findings by the AAT as to her psychiatric assessment. As the primary judge pointed out at [29], Ms Clement, as was her right, chose to pursue her claims in the AAT and the AAT was obliged to give reasons for its decision. No application was made to the AAT or to the primary judge to restrict publication of the decision or of the contents of the reasons. As Ms Clement says, there is no point in considering such restriction now and she does not ask us to do so.

56    Ms Clement contends that the AAT wrongly refused to accept her T documents into evidence. The primary judge found that the AAT’s approach to the T documents was reasonable given the nature of the case before it and that there was no denial of procedural fairness. No error has been demonstrated in her Honour’s approach to the acceptance or refusal to accept documents into evidence.

57    No error is demonstrated in the conclusions of the primary judge. Ms Clement has not demonstrated a denial of procedural fairness nor provided a proper basis, or any basis, for findings of bias.

Interlocutory Applications

58    Ms Clement submits that an error arose in the primary judge’s decision by reason of dismissal of the three interlocutory applications. As previously stated, the first interlocutory application concerns questions of law relating to Ms Clement’s rehabilitation program, the second to the death of her former spouse and former partner and the third to Ms Clement’s concerns regarding listing and case management.

59    As set out above at [34], [42] and [50], the primary judge found that the first and second were not properly before her in the appeal from the AAT’s decision and that the third had been overtaken by the event of the hearing. Her Honour dismissed each interlocutory application. For the reasons already outlined above in respect of each application, Ms Clement has not identified any error of law in the primary judge’s dismissal of these applications.

Conclusion

60    We have considered the matters that Ms Clement has raised in her amended notice of appeal, her written submissions and her oral argument. She has not demonstrated any, and we see no, error in the decision of the primary judge to dismiss the appeal from the AAT decision, or in her Honour’s dismissal of the interlocutory applications.

Disposition

61    It follows that the appeal should be dismissed with costs.

Associate:

Dated:    29 August 2012