Federal Court of Australia

K & S Freighters Pty Ltd v King [2026] FCA 58

ORDERS

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to ‘Administrative Review Tribunal’.

2.    The orders of the Administrative Appeals Tribunal made on 7 and 9 February 2024 and the decisions of the Tribunal refusing to grant the applicant an order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) and refusing to grant the applicant leave to rely upon surveillance footage and associated materials and supplementary medical reports in relation to events depicted in the footage be set aside.

3.    The applicant’s application for an order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) be remitted to the second respondent for determination according to law.

4.    Costs be reserved.

5.    By 4.30 pm (AWST) on 20 February 2026:

(a)    the applicant file a minute of proposed consent orders with respect to the costs reserved in paragraph 4 of these orders; or

(b)    the parties each file and serve minutes of proposed orders with respect to the costs reserved in paragraph 4 of these orders and an outline of written submissions (limited to three pages) in support of the proposed orders.

6.    Subject to further order, the question of the costs reserved in paragraph 4 of these orders be determined without an oral hearing.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    This application raises the question of the approach that ought to have been taken to late disclosure and reliance on video surveillance material and supplementary medical reports that K & S Freighters (applicant) claimed were subject to legal professional privilege in compensation review proceedings in the Administrative Appeals Tribunal.

2    In the Tribunal Mr King (first respondent) sought review of decisions K & S Freighters had made rejecting claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Days before the final substantive hearing K & S Freighters applied to the Tribunal for a confidentiality order by way of a direction prohibiting or restricting the publication or other disclosure of the information under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) that would have permitted K & S Freighters to lodge the video surveillance material and medical reports with the Tribunal without disclosing the material and reports to Mr King. Late disclosure of the material and reports raised competing issues of the fairness to Mr King of permitting K & S Freighters to rely on previously undisclosed material and reports as evidence and the fairness to K & S Freighters of excluding and precluding cross-examination of Mr King on the material and reports at the hearing. The Tribunal struck the balance of fairness in favour of Mr King.

3    The Tribunal decided it would not make a confidentiality order. It also decided that K & S Freighters required leave to rely on the video surveillance material and medical reports at the hearing and that it would not grant leave. In making these decisions the Tribunal applied certain paragraphs of practice directions the President had made under s 18B of the AAT Act (General Practice Direction and Lodgement of Documents under Section 37 and 38AA of the AAT Act Practice Direction). The Tribunal made its decisions refusing a confidentiality order and leave without deciding if the video surveillance material and medical reports were, in fact, subject to legal professional privilege.

4    K & S Freighters asserts that the Tribunal made numerous errors that engage the Court’s jurisdiction to grant constitutional writs and other relief under s 39B of the Judiciary Act 1903 (Cth) and (or) to make various orders under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). All the asserted errors are predicated on an assumption that the video surveillance material and medical reports were, in fact, confidential and subject to legal professional privilege. Otherwise, there is no challenge to the exercise of the Tribunal’s powers under the AAT Act on the assumption that the material and reports were not privileged. As Mr King has not conceded privilege and the question was not decided by the Tribunal, the various asserted errors boil down to the following principal issues.

(1)    Was it a reviewable error to decide the application under s 35(4) of the AAT Act on the assumption that the General Direction and Lodgement Direction applied to the video surveillance material and medical reports irrespective of whether or not the material and reports were subject to legal professional privilege?

(2)    Was it a reviewable error to decide that leave was required for K & S Freighters to rely on the video surveillance material and medical reports as evidence in the proceedings irrespective of whether or not the material and reports were subject to legal professional privilege?

5    For the reasons that follow, the Tribunal made a number of material errors of law and failed to accord K & S Freighters procedural fairness because the question of legal professional privilege was the central issue that the Tribunal was required to decide. It was necessary for the Tribunal to decide that issue before it could apply s 35(4) of the AAT Act, the practice directions made under s 18B of the AAT Act and principles relevant to the exercise of the Tribunal’s power to exclude otherwise relevant evidence on the ground of late disclosure of that evidence to the opposing party.

6    After this application was filed, the Administrative Appeals Tribunal was abolished, the AAT Act repealed, the Administrative Review Tribunal Act 2024 (Cth) enacted and the Administrative Review Tribunal created. In accordance with certain transitional provisions made under the Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2024 (Cth) the ART was substituted for the AAT as a party and the second respondent in this application. The Court has power to do anything in relation to the ART that could have been done in relation to the AAT. Further, Mr King’s application for review made to the AAT is to be continued and finalised by the ART under the ART Act: Sch 16 items 10, 24, 25 of the ART Transitional Provisions Act.

7    For reasons given later, the appropriate order on review is to set aside the Tribunal’s orders and decisions refusing to make a confidentiality order and refusing to grant K & S Freighters leave to rely on the surveillance material and medical reports at the hearing before the Tribunal. The application for a confidentiality order under s 35(4) of the AAT Act should be remitted to the ART for determination according to law. It will be for the ART to determine that application as required in accordance with the provisions of the ART Transitional Provisions Act and ART Act and on the basis that it must decide if the video surveillance material and medical reports are ‘confidential’ because those materials are subject to legal professional privilege before deciding if a confidentiality order should be made.

Was it a reviewable error to apply the practice directions to the confidentiality application?

Background

8    K & S Freighters conducts business as a freight carrier. It is an eligible corporation under s 100(1)(c) of the Compensation Act and was issued with a licence under that Act. As a consequence, K & S Freighters is authorised to make decisions under the Compensation Act in relation to its liability to pay compensation to its employees: s 108 and s 108A of the Compensation Act.

9    Mr King was an employee of K & S Freighters who made a claim for compensation under the Compensation Act in respect of an incident involving a truck roll-over on 24 May 2021. K & S Freighters made a determination accepting liability for certain injuries Mr King sustained in that incident under s 14 of the Compensation Act. Mr King later made claims for compensation for alleged injuries to his lower back and mental health. K & S Freighters made determinations denying liability to pay compensation for those later claims under s 14. Mr King requested reconsiderations of the denials of liability under s 62(2). K & S Freighters affirmed its decisions denying liability under s 63(5). Mr King made applications for review of each of those decisions in the Tribunal under s 64(1). The applications were listed for substantive hearing for five days commencing on 12 February 2024.

10    In the course of preparing for the substantive hearing, K & S Freighters conducted covert surveillance of Mr King and obtained video footage of him during September 2022 and August 2023 and reports prepared by the private investigator who had undertaken the surveillance. K & S Freighters also obtained medical reports from an orthopaedic surgeon in September 2022, May 2023, October 2023 and January 2024. For the purposes of the May 2023 report, the surgeon was requested to comment on the video surveillance material obtained prior to September 2022. In December 2023 the surgeon was provided with the video surveillance material obtained prior to August 2023 and asked to prepare a report commenting on that footage. The surgeon provided his report on 18 January 2024.

11    On 2 February 2024 K & S Freighters applied ex parte to the Tribunal under s 35(4) of the AAT Act for an order to the effect that the video surveillance footage and associated materials and supplementary medical report of 18 January 2024 be confidential (confidentiality application). On 6 February 2024 the Tribunal heard and refused the ex parte confidentiality application. At the time of the ex parte hearing, the Tribunal expressed the view that paras [9.4] and [9.5] of the Lodgement Direction and para [4.45] of the General Direction applied to the video surveillance material and that K & S Freighters required leave of the Tribunal to rely on that material and the supplementary medical reports at the hearing because the material and reports had not been lodged with the Tribunal and given to Mr King at least 28 days before the hearing was listed to commence.

12    On 7 February 2024 the Tribunal published, without reasons, an order refusing the ex parte confidentiality application. The Tribunal directed the parties to confer about the hearing listed for the following week including the filing of any additional evidence. The parties conferred and agreed that subject to resolution of the question of the surveillance video the parties were in a position to proceed. Pending resolution of that question, Mr King agreed not to seek disclosure of the video surveillance material at that time. K & S Freighters indicated in correspondence to the Tribunal that it was not in a position to assess its readiness to proceed ‘in the absence of knowledge as to whether it may rely upon the surveillance and associated material, and how and when if so’. It then said:

…

There are at least the following possibilities.

[Mr King] may indicate he agrees with [K & S Freighters] being permitted to rely on the material and in the manner in which it chooses, subject only to his right to seek such opportunity as he may reasonably require to meet it by further evidence. Were that the position, then assuming the Tribunal were content with that course, the matter could go ahead as presently planned. However, when that position was explored today it was not then possible to reach agreement, however discussions to that end may continue.

The second possibility is that he may agree to [K & S Freighters] relying upon the material, but subject only to terms with which we are unlikely to agree (e.g. that the surveillance film first be shown before [Mr King] gives evidence, or some similar order to which [K & S Freighters] would object). In such circumstances [K & S Freighters] would say that such an issue should be resolved by the Tribunal, and at a Directions hearing of the sort to which the Tribunal refers, before [K & S Freighters] could determine what response it may be required to make and with what implications for the matter proceeding on Monday.

The third possibility is that no agreement whatever is capable of being reached, in which case the same circumstances arise as are referred to in 2 above.

Ideally, those questions would be considered without the need for the content to be redacted during submissions, however given the Tribunal has declined to make as 35(4) order, and [Mr King] wishes to make submissions as to the question of leave (and potentially, upon what terms) it will have to be a Directions Hearing conducted in such a way as to avoid disclosing the content of the disputed material if [K & S Freighters’] interests are to be protected. Provided that might be done, we would welcome resolving those issues tomorrow at a TDH, assuming that proposal is convenient to our colleagues. Once the Tribunal's position is clear we will be in a position to indicate our readiness or make some other response as may be required.

…

13    On 9 February 2024 the Tribunal held an inter partes hearing to address the question of whether K & S Freighters should be granted leave to rely on the relevant materials (leave hearing). After that hearing, the Tribunal communicated that it had made a decision to refuse leave. The effect of that decision was that K & S Freighters was not permitted to rely on the video surveillance material and supplementary medical reports at the hearing listed to commence on 12 February 2024. K & S Freighters then informed the Tribunal that it was not in a position to proceed with the hearing, requested an adjournment and indicated that an application for judicial review would be made. The Tribunal granted an adjournment on 12 February 2024 and published reasons for its decisions refusing to make a confidentiality order and to grant leave on 20 February 2024.

The confidentiality application

14    Relevantly, s 35 of the AAT Act provided:

…

(4)    The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

(a)    relates to a proceeding; and

(b)    is any of the following:

(i)    information that comprises evidence or information about evidence;

(ii)    information lodged with or otherwise given to the Tribunal.

(5)    In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

(a)    that hearings of proceedings before the Tribunal should be held in public; and

(b)    that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

(c)    that the contents of documents lodged with the Tribunal should be made available to all the parties.

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

…

15    K & S Freighters submitted to the Tribunal that a confidentiality order should be made with respect to the video surveillance material and medical reports because that information was confidential and subject to legal professional privilege. It also submitted that it would be denied procedural fairness if a confidentiality order were not made because disclosure of the information to Mr King before the hearing would undermine an effective cross-examination of him during the hearing.

Tribunal reasons for refusing confidentiality order

16    The Tribunal’s reasons for refusing to make a confidentiality order focused on the question of whether, in the absence of a confidentiality order, K & S Freighters would be denied procedural fairness (T [30]-[60]). There was no consideration of the question of legal professional privilege. The Tribunal expressed the view that there was a trend in the authorities towards a ‘cards on the table approach’ which favours disclosure. Further, while each application for a confidentiality order would depend on the facts and circumstances of the individual case, the cases in which a party would be denied procedural fairness without disclosing video surveillance material were likely to be ‘exceptional’ or ‘rare’ and required more than conflicting medical evidence and assertions regarding credibility (T [51]). The Tribunal was not satisfied that the existence of, or any incapacity caused by Mr King’s injuries could not be established by objective medical evidence (T [52]-[54]). Mr King’s applications did not ‘turn on the sole issue of credibility’ (T [56]). The case was not exceptional or rare and the Tribunal was not satisfied that K & S Freighters would be denied procedural fairness if a confidentiality order were not made (T [58]-[60]). Ultimately, the Tribunal was ‘not of the opinion that there was a persuasive reason in the circumstances of the case which required [the Tribunal] to make the order (see [4.47] of the General Practice Direction)’ (T [61]).

17    K & S Freighters contends that the Tribunal made an error of law applying para [4.47] of the General Direction. It submits that the para [4.47] has no application to video surveillance material that is confidential and subject to legal professional privilege. Further, that the confidential nature of the video surveillance material and medical reports the subject of the confidentiality application was a mandatory relevant consideration under s 35(5) of the AAT Act. In substance, K & S Freighters contends that the Tribunal’s failure to decide if the material was subject to legal professional privilege was the result of a misconstruction of s 35(4) and s 35(5) and para [4.47] of the General Direction.

18    Mr King contends, in substance, that the Tribunal’s decision to refuse a confidentiality order is of no consequence because the video surveillance material has not been lodged with the Tribunal or disclosed to Mr King. He submits any common law right that K & S Freighters has to withhold disclosure of the material and deploy it at the hearing at a time of its choosing is unaffected by the Tribunal’s decision. These submissions are of relevance to the question of whether there would be utility in setting aside the Tribunal’s order and decision refusing to make a confidentiality order and requiring the ART to reconsider the confidentiality application. Otherwise, Mr King submits, in effect, that if K & S Freighters wanted to rely on the video surveillance material and medical reports at the hearing, including to cross-examine Mr King, by operation of the practice directions K & S Freighters was bound to lodge the material with the Tribunal more than 28 days before the hearing was listed to commence and apply for a confidentiality order to preclude disclosure to Mr King before the hearing. That is, there was no error by the Tribunal applying the practice direction.

Legal professional privilege

19    Legal professional privilege is a rule of substantive law which may be availed by a person to resist the giving of information or the production of documents which would reveal communications between a client and its lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; 213 CLR 543 at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). It is generally accepted that there are at least two aspects, or limbs, to common law privilege: (1) advice privilege; and (2) litigation privilege. The first protects communications between client and lawyer that are made for the dominant purpose of giving or obtaining legal advice (advice privilege). The second protects communications between client and lawyer made for the dominant purpose of providing the client with legal services in connection with pending or anticipated legal proceedings (litigation privilege).

20    While there is authority for the proposition that litigation privilege did not extend to proceedings in the Tribunal: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530; 67 NSWLR 91 at [55] (Bergin J), the Tribunal declined to follow that authority: Re Farnaby v Military Rehabilitation and Compensation Commission [2007] AATA 1792; 97 ALD 788 at [2], [3], [15], [16], [25]-[35] (Downes P and Groom DP) citing, in particular, Waterford v Commonwealth [1987] HCA 25; 163 CLR 54 at 63-64, 67 (Mason CJ and Wilson J), 101 (Dawson J), Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; 172 CLR 319 at 322 (Brennan J) and SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; 159 FCR 1 at [15], [37] (Lander J) as authority for the proposition that litigation privilege applied to proceedings in the Tribunal. Although, the specific issue has not been authoritatively determined by this Court or the High Court, I am prepared to accept, without deciding, that litigation privilege applied to proceedings in the Tribunal.

21    Legal professional privilege is not merely a ‘rule’ of substantive law. It is an important common law right or common law immunity. Statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect: Daniels Corporation International at [11]. That is, ‘[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation’: Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 523 (Brennan J), cited with approval in Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

Sections 37 and 38AA of the AAT Act

22    Section 37(1) of the AAT Act required K & S Freighters, as the person which had made the decisions under review, subject to any directions made under s 18B, to lodge with the Tribunal a copy of every document in its possession or under its control that was relevant to review of the decisions by the Tribunal within 28 days after receiving notice of the application. Section 37(1AF) provided that K & S Freighters was not required to lodge a copy of a document with the Tribunal if an application for a direction under s 35(4) was made unless and until after the hearing of that application the Tribunal directed it to do so. Section 37(3) provided that the section had effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.

23    Section 38AA(1) provided that a person required to lodge documents with the Tribunal under s 37(1) was, subject to any directions given under s 18B, required to lodge with the Tribunal a copy of any relevant document of which that person obtained possession after the 28-day initial period that had not already been lodged with the Tribunal as soon as practicable after obtaining possession. Section 37(1AF) also applied to those documents: s 38AA(2). There was no equivalent of s 37(3) in s 38AA.

24    Section 18B(1) provided that the President of the Tribunal was able to give written directions in relation to, amongst other things, the procedure of the Tribunal including the provision of documents that are or are not required to be lodged under s 37(1)(b) and s 38AA(1). Relevantly, the President had given directions under s 18B described as the ‘General Practice Direction’ and ‘Lodgement of Documents under Sections 37 and 38AA of the AAT Act Practice Directions’. A failure to comply with a practice direction did not invalidate anything done by the Tribunal: s 18B(2). However, if the Tribunal had dealt with a proceeding in a way that complied with a practice direction, the Tribunal was not required to take any other action in dealing with the proceeding: s 18B(3).

25    Otherwise, s 33(1) provided that in a proceeding before the Tribunal the procedure was, subject to the AAT Act and the regulations and any other enactment, within the discretion of the Tribunal. Further, the Tribunal was not bound by the rules of evidence and was able to inform itself on any matter in such manner as it considered appropriate: s 33(1)(c). Section 39 provided that subject to, amongst other provisions, s 35, the Tribunal was to ensure that every party to a proceeding before the Tribunal was given a reasonable opportunity to present its case and, in particular, to inspect any documents to which the Tribunal proposed to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

26    The extent to which s 37(3) of the AAT Act manifested an intention to abrogate legal professional privilege is not a straight-forward matter. Section 37(1) was directed to ‘a person who [had] made a decision that [was] the subject of an application for review’. Although a person who had made a decision was a party to the proceeding in accordance with s 30(1)(b), s 37(1) was not directed to a person described as a party to the proceeding before the Tribunal: see, Australian Postal Commission v Hayes [1989] FCA 231; 23 FCR 320 at 328 (Wilcox J). In general, the provisions of the AAT Act drew a distinction between the person who had made the decision under review and a person who was a party to the proceeding before the Tribunal: e.g., ss 29AC(1)(a)-(b), 30(1), 33(1AA), 33(1AB), 33(2A)(a)-(b), 37(1). It is not obvious that a confidential document that would reveal communications between the original decision-maker, as a party to the proceeding, and that party’s lawyer in connection with pending or anticipated proceedings before the Tribunal was the intended target of s 37(1) of the AAT Act. That is, the AAT Act as a whole did not manifest an unmistakably clear intention to abrogate litigation privilege with respect to proceedings in the Tribunal even if the documents were in the possession or control of the original decision-maker at the time of receiving notice of the application for review.

27    Given that the function of the Tribunal was to stand in the shoes of the original decision-maker and make the correct or preferrable decision, it stands to reason that the legislature would have intended that the Tribunal be provided with all the relevant material that was before the original decision-maker. To that extent, there was a clear intention to preclude the decision-maker from objecting to production to the Tribunal of documents subject to advice privilege that were in its possession or under the control as the decision-maker of the decision under review. It is self-evident that documents of that character may have been relevant to the decision under review because the original decision-maker may have had reference to or relied on communications subject to advice privilege for the purpose of making the decision under review. However, production of documents to the Tribunal for that purpose would not necessarily mean that the legislature intended that the confidentiality of privileged communications would automatically be lost upon lodging documents with the Tribunal. Section 37(1AF) and s 35(4) afforded the original decision-maker an opportunity to assert privilege and maintain the confidentiality of privileged information. Moreover, the right of a party to the proceeding to inspect documents lodged with the Tribunal under s 39(1) was not unfettered and was subject to any direction made under s 35: see, Hayes at 328 (Wilcox J).

28    In circumstances of voluntary conduct by the person entitled to legal professional privilege, the privilege is lost (or ‘waived’) if the person discloses the information to a third party or acts in some other manner that is inconsistent with maintenance of the confidentiality of the privileged communication: Mann v Carnell [1999] HCA 66; 201 CLR 1 at [28]-[29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). In a context in which the original decision-maker and the Tribunal each form part of a governmental administrative decision-making continuum directed towards ultimately making the correct or preferrable administrative decision, it is not obvious that mere disclosure of privileged information by the original decision-maker to a subsequent reviewing decision-maker would be conduct inconsistent with maintaining confidentiality of the information as between the subsequent decision-maker (here, the Tribunal) and the person subject to the administrative decision (here, the applicant in the proceeding before the Tribunal).

29    In deciding if a direction should be made under s 35(4), the Tribunal was required to take into account the ‘confidential nature’ of the information: s 35(5). In the context of documents in the possession or control of the original decision-maker, mere reference by an administrative decision-maker to a document containing privileged information that contributes towards decision-making would not be inconsistent with maintaining the confidentiality of that information: Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 at [67] (Kenny, Stone and Edmonds JJ). On the other hand, reliance upon privileged information to make the decision or incorporation of the information into the reasons for decision would be inconsistent with maintaining the confidentiality of the document containing that information: Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; 223 ALR 284 at [87] (Lee J); Rio Tinto at [67].

30    Therefore, while the inability of the original decision-maker to object to production of documents to the Tribunal on the ground of legal professional privilege under s 37 abrogated the privilege as between the original decision-maker and the Tribunal, subject to the original administrative decision-maker making an application under s 35, the legislative scheme conferred power on the Tribunal, rather than the original decision-maker, to decide if and under what circumstances there would be disclosure of that privileged information to another party to a proceeding before the Tribunal. Put another way, it was not an inevitable consequence of the legislative scheme that the confidentiality of information subject to legal professional privilege would be lost by lodgement of that material with the Tribunal under s 37(1) of the AAT Act. Further, s 37(1) was of no application to documents of which the decision-maker obtained possession or control after the initial 28-day period: Hayes at 328.

31    As to s 38AA(1) of the AAT Act, whatever may have been the position with respect to s 37(1), there was no unmistakably clear intention to abrogate legal professional privilege with respect to information or documents of which the decision-maker obtained possession after the initial 28-day period. There was no equivalent of s 37(3) in s 38AA. Insofar as s 38AA incorporated or depended on the provisions of s 37, express reference was made to ss 37(1), 37(1AAA), 37(1AAB), 37(1AE), 37(1AF) and 37(1AG) and no reference was made to s 37(3). These omissions can be assumed to have been deliberate. Further, unlike communications between a decision-maker and its lawyers for the dominant purposes of giving or obtaining legal advice in relation to the decision under review, communications between a decision-maker, as a party, and its lawyers will be for the dominant purpose of giving or obtaining legal advice or legal services in relation to the proceeding before the Tribunal. To the extent there may be any ambiguity, the Explanatory Memorandum to the Tribunals Amalgamation Bill 2015 (Cth) provided no support for a legislative purpose to abrogate privilege over communications of that character. Deputy President Forgie reached the same conclusion for similar reasons in Buttigieg v Comcare [2017] AATA 1002 at [27]-[36], [43]-[47].

Applicability of the practice directions to privileged video surveillance material

32    Although taken from authorities concerning adversarial proceedings, the following propositions may be accepted as applying equally to proceedings before the Tribunal where, although inquisitorial in character, it will often be in the interests of a party to adduce particular evidence and test, and perhaps destroy, the evidence of the opposing party: Hayes at 327-328.

(1)    In the absence of an express power to do so, the Tribunal was not able to direct or order a party to lodge confidential and privileged video surveillance material with the Tribunal and to give or disclose that material to the other party: State of Victoria v Davies [2003] VSCA 65; 6 VR 245 at [31] (Batt JA, Callaway and Chernov JJA agreeing), citing Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475 at 490-491 (Deane J); Daniels Corporation International at [9]-[11], [43]-[44] (McHugh J), [85]-[87] (Kirby J), [132] (Callinan J).

(2)    A party entitled to legal professional privilege may waive the privilege, but has the right to choose when to waive the privilege. It is for the parties to make a forensic decision about when, and in what manner, they deploy their legally privileged materials: Stark Investments (NT) No 2 Pty Ltd v Ware [2018] NTSC 58; 41 NTLR 224 at [6] (Kerr, Barr and Hiley JJ).

(3)    In the absence of an express power to do so, the Tribunal was not able to make an order or direction that derogated from the right of a party entitled to privilege to waive that privilege at a time of that party’s choosing. That is, the Tribunal was not able to make an order or direction that had the effect of indirectly imposing an obligation on the party entitled to privilege to waive the privilege by otherwise subjecting that party to a restriction in the conduct of its case unless the party later persuades the Tribunal to lift that restriction: Cockerill v Collins [1999] 2 Qd R 26 at 28-29 (Fitzgerald P, Ambrose J agreeing), 29-30 (McPherson JA).

(4)    A provision of a rule of court (or subordinate legislation) may expressly or by necessary implication abrogate or derogate from a party’s legal professional privilege: Davies at [37] citing Boyes v Colins [2000] WASCA 344; 23 WAR 123 at [32]-[52] (Ipp J, Pidgeon and Wallwork JJ agreeing) as an example where the relevant rule of court provided that ‘[u]nless the Court otherwise ordered no plan, photograph or model shall be receivable in evidence at trial unless at least 10 days before its commencement the other parties had been given an opportunity to inspect it and agree to its admission without further proof’.

33    The general power of the President to make directions regarding the procedure of the Tribunal in s 18B and general discretionary power of the Tribunal to determine its procedure under s 33(1) of the AAT Act provided no unmistakably clear intention to abrogate legal professional privilege over communications between any party to a proceeding and that party’s lawyer. Further, although the power was broad and if read literally would permit directions to be made relating to the procedure of the Tribunal insofar as it affects a party’s legal professional privilege, that power was to be read down because no clear intention to permit the power to have been exercised in that way emerged from the text of the legislation: Cockerill at 28-29 (Fitzgerald P, Ambrose J agreeing), 29-30 (McPherson JA). Thus, power was not conferred on the President under s 18B or on any member of the Tribunal under s 33(1) to make directions that would have had the effect of abrogating legal professional privilege.

34    Under the heading ‘2 When to lodge documents under section 37’ para [2.13] of the Lodgement Direction provided that if video surveillance material was in the possession of, or under the control of, a decision-maker and was relevant to the review of the decision, the decision-maker was required to lodge a copy of that material with the Tribunal. Video surveillance material was defined in para [1.4] to include ‘footage recorded in any format, any report relating to the footage and any log sheets produced in connection with the footage’. Clearly, para [2.13] had no application to privileged video surveillance material obtained after the 28-day timeframe for the application of s 37(1) of the AAT Act. With respect to applications under s 37(1AF) and s 35 relating to video surveillance material to which para [2.13] applied, the Lodgement Direction provided:

3.    Confidential documents

3.1    In accordance with subsection 37(1AF), a decision-maker may apply for a direction under section 35 of the AAT Act that all or part of the contents of one or more of the Section 37 documents not be disclosed to the applicant or another party.

Applying for a direction that documents not be disclosed to another party

3.2    An application for a direction under section 35 must be made in writing and lodged with us together with a copy of each document in respect of which the direction is sought. The application must be made within the time period for complying with subsection 37(1) (including any extension of time that we grant).

3.3    The decision-maker must give a copy of the application, but not any document in respect of which the direction is sought, to any other party to the application.

3.4    The decision-maker is not required to include with the Section 37 documents any document in respect of which a direction is sought unless and until we:

(a)    decide the application for a direction under section 35; and

(b)    direct the decision-maker to do so.

3.5    We will usually decide an application for a direction under section 35 on the papers. If we consider a hearing should be held or, if a party advises us that it wishes to make submissions, we may hold a hearing in person or by telephone.

3.6    We note that certain information may be protected from disclosure where an Attorney-General gives a certificate under section 36 or s 36B that disclosure of matter contained in a document would be contrary to the public interest.

35    Under the heading ‘9. Ongoing requirement to lodge relevant documents under section 38AA’ of the Lodgement Direction paras [9.1]-[9.3] summarised the requirements of s 38AA and then provided:

Video surveillance material

9.4    Subject to any other direction or order we may make, if a decision-maker intends to rely on video surveillance material at the hearing of an application and that material has not already been lodged with us and given to any other party, the decision-maker must give a copy of the material to us and to any other party at least 28 days before the day on which the hearing is listed to commence.

9.5    If video surveillance material has not been given to us and any other party prior to the hearing in accordance with this Direction, or such other direction or order that we may make, the decision-maker may not rely on the material as evidence in the application without the leave of the AAT.

9.6    We will not make a direction under section 35 in respect of video surveillance material unless there is a persuasive reason, in the particular circumstances of an individual case, which requires us to make such a direction. The fact that the credibility of another party may be in issue will not, of itself, be a sufficient reason to make such a direction.

36    Under the heading ‘Lodging evidence, including video surveillance material’ in the General Direction para [4.44] provided that the parties were required to lodge with the Tribunal and give to each other party any evidence on which the decision-maker proposed to rely at the hearing in accordance with any direction the Tribunal had made. Paragraphs [4.46]-[4.47] were then in the same terms as paras [9.4]-[9.5] of the Lodgement Direction except that they applied where any party (the decision-maker or any other party) intended relying on video surveillance material at the hearing.

37    Paragraph [4.44] of the General Direction applied to documents such as witness statements and expert medical reports. Typically, documents of that nature would have been confidential and subject to legal professional privilege until lodged with the Tribunal and given to the other party: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547 at [51]-[53], [102]-[103] (Mansfield, Kenny and Middleton JJ). Paragraph [4.45] of the General Direction and para [9.4] of the Lodgement Direction were to similar effect with respect to video surveillance material. However, in the case of video surveillance material, para [4.46] of the General Direction and para [9.5] of the Lodgement Direction provided that if that material was not lodged at least 28 days before the commencement of the hearing K & S Freighters ‘may not rely on that material as evidence’ in the proceeding ‘without leave of the AAT’. There was no equivalent sanction for a failure to lodge other evidence, such as witness statements and expert medical reports, in accordance with a direction to which para [4.44] of the General Direction applied.

38    The effect of paras [4.45]-[4.46] of the General Direction and paras [9.4]-[9.5] of the Lodgement Direction was to indirectly impose an obligation on a party that intended relying on video surveillance material at a hearing to make a decision to waive any privilege over that material at least 28 days before the commencement of the hearing so as to avoid becoming subject to a restriction (leave) on the manner in which it was to conduct its case. These provisions derogated from the right of a party entitled to privilege to waive that privilege at the time of its choosing. Neither the Tribunal nor the President had power to make a direction that had the effect of abrogating legal professional privilege in that manner.

39    For the purposes of this proceeding, it is not necessary to decide whether para [4.46] of the General Direction and para [9.5] of the Lodgement Direction affect the validity of each of those practice directions as a whole. It is sufficient to record that these paragraphs were not applicable to video surveillance material that was confidential and subject to legal professional privilege. Nonetheless, rather than rendering the whole practice directions unauthorised, it would generally be preferrable to construe references to the video surveillance material in the practice directions as references to unprivileged video surveillance material. The same conclusion was reached for similar reasons in Buttigieg.

40    Paragraph [4.47] of the General Direction and para [9.6] of the Lodgement Direction contemplated that a party that wanted to rely on video surveillance material may have applied to the Tribunal for an order prohibiting or restricting the disclosure of the material to the other party in the proceeding (confidentiality order) under s 35(4) of the AAT Act. As already mentioned, a confidentiality order was only necessary under s 38AA(2) (applying s 37(1AF)) and s 35(4) in circumstances in which a party had decided that it intended to rely on the material as evidence in the proceeding and had waived privilege by lodging the material with the Tribunal. It would only be in that circumstance that the material would be disclosed to the Tribunal and, subject to a confidentiality order, available for inspection by the other party under s 39. Accordingly, paras [3.2]-[3.6] of the Lodgement Direction made provision for an application for a direction to be made under s 35 with respect to video surveillance material that was no longer confidential or over which privilege was waived. In a context in which video surveillance material was no longer confidential, para [4.47] of the General Direction and para [9.6] of the Lodgement Direction provided that a direction under s 35 would not be made unless there was a ‘persuasive reason’. Paragraph [4.47] and para [9.6] had no application to video surveillance material or other documents that remained confidential because privilege had not been waived.

Applicability of authorities in favour of disclosure before the hearing

41    In the course of its reasons for refusing the confidentiality order the Tribunal asked itself whether K & S Freighters would be denied procedural fairness if it were not able to withhold disclosure of the video surveillance material until its cross-examination of Mr King (T [24], [60]). The Tribunal acknowledged that Hayes and Australian Postal Corporation v Bessey [2001] FCA 266 support the proposition that a party may be denied procedural fairness if they are not permitted to cross-examine a witness without disclosing surveillance material to the witness before the cross-examination. However, by reference to Boyes v Colins (and Brown v Metro Meat International Ltd [2000] WASCA 123, Digby v Essex County Council [1994] PIQR P53 and Khan v Armaguard Ltd [1994] 3 All ER 545 referred to in that authority), Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683 (Taxpayer case), Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396 and Morton v Colonial Mutual Life Assurance Society Ltd [2013] FCA 681 at T [34]-[50], the Tribunal expressed the view that there was a trend towards a ‘cards on the table’ approach which favours disclosure. The Tribunal said:

51.    … I reiterate that each application for a confidentiality order will depend on the facts and circumstances of the individual case. It may be that in the circumstances of some applications a respondent would be denied procedural fairness if they were denied the opportunity to cross-examine an applicant on surveillance footage without prior notice or disclosure. Those cases are likely to be “exceptional” or “rare” and require more than conflicting medical evidence and assertions regarding credibility to put them into that category.

42    The Tribunal then went on to address the reasons that this was not, in its view, one of the exceptional or rare cases in which there should not be prior disclosure of video surveillance material (T[52]-[60]). Ultimately, by reference to para [4.47] of the General Direction, the Tribunal ‘was not of the opinion that there was a persuasive reason in the circumstances of the case which required [the Tribunal] to make the order’ (T [61]).

43    All of the authorities dealing with ‘cards on the table’ and para [4.47] of the General Direction, with the exception of Boyes, were directed applications to withhold unprivileged video surveillance material or documents that were otherwise required to be disclosed to the opposing party before the trial or hearing. As already mentioned, in Boyes there was a specific court rule that, in substance, had the effect of abrogating privilege and requiring a party to elect to waive privilege and disclose the video surveillance before trial. In Boyes Ipp J expressed the view that in the exercise of the discretion to ‘otherwise order’ the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstance of the individual case to make an order: Boyes at [60]-[87]. Therefore, the ‘cards on the table’ principles explained in Boyes also apply where the common law privilege has been abrogated and the video surveillance material is otherwise required to be disclosed to the opposing party before the trial or hearing. None of these authorities was of any direct relevance to the question of whether a cross-examining party would be denied procedural fairness if it were not permitted to waive privilege and produce video surveillance material to a witness during cross-examination in circumstances in which the cross-examining party was under no obligation to disclose that material before the trial or hearing. Only Hayes and Bessey were authorities directly relevant to that question. Further, none of the authorities upon which the Tribunal relied was relevant to the question of whether the video surveillance material and medical reports were ‘confidential’ for the purposes of the application of s 35(4) and s 35(5) of the AAT Act.

44    Hayes and Bessey explained the reasons why K & S Freighters applied for a confidentiality order but were not the substantive reason for making a confidentiality order. The substantive reason for making a confidentiality order was that the material was confidential and subject to legal professional privilege and K & S Freighters did not intend to waive privilege until a time of its choosing during the cross-examination of Mr King. Plainly, the issue of confidentiality could not be resolved without determining if the material was privileged. Therefore, the Tribunal failed to decide the central issue it was required to determine on the application for a confidentiality order.

The Tribunal’s decision was affected by reviewable errors

45    The Tribunal made at least the following reviewable errors in its decision refusing to make a confidentiality order.

(1)    In refusing to make a confidentiality order on the ground that K & S Freighters would not be denied procedural fairness if it disclosed the video surveillance material and medical reports before the hearing it asked itself the wrong question: see e.g., Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The correct question was whether a confidentiality order should be made under s 35(4) with respect to the video surveillance material and medical reports as information that ‘relates to the proceeding’ on grounds that included the ‘confidential nature’ of the information because it was subject to legal professional privilege that had not been waived.

(2)    Relatedly, in failing to decide if the video surveillance material and medical reports were confidential and subject to legal professional privilege it failed to determine the central issue upon which the confidentiality application was founded. That was a constructive failure to exercise the power conferred on the Tribunal under s 35(4) of the AAT Act or a failure to accord K & S Freighters procedural fairness: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24] (Gummow and Callinan JJ).

(3)    In asking itself if there was a ‘persuasive reason’ to make a confidentiality order under s 35(4) it applied para [4.47] of the General Direction and para [9.5] of the Lodgement Direction. It did so implicitly on a misconstruction of the practice directions and mistaken assumption that the practice directions applied to video surveillance material that was confidential and subject to legal professional privilege. That was an error of law: Craig at 179.

(4)    Relatedly, in considering if there was a ‘persuasive reason’ to make a confidentiality order, it applied principles that favoured disclosure of video surveillance material before a hearing. It did so implicitly on the mistaken assumption that these principles were applicable to material that was confidential and subject to legal professional privilege. That was also an error of law.

Utility of relief regarding the decision to refuse a confidentiality order

46    For the foregoing reasons, the video surveillance material and medical reports subject to litigation privilege that came into existence or the possession of K & S Freighters more than 28 days after it received notice of Mr King’s application to the Tribunal were not required to be lodged with the Tribunal under s 37(1) or s 38AA(1) of the AAT Act. However, it was open to K & S Freighters to lodge privileged video surveillance material and medical reports with the Tribunal before the hearing. Lodging otherwise privileged documents with the Tribunal may have been regarded as conduct inconsistent with maintaining the confidentiality of the communications revealed by those documents because, subject to a direction under s 35, Mr King would have been entitled to inspect that material under s 39. Therefore, if otherwise privileged documents were lodged with the Tribunal, to avoid disclosure of the material to Mr King, it would have been necessary for K & S Freighters to obtain an order or direction under s 35(4) precluding disclosure of the material to Mr King.

47    The application K & S Freighters made to the Tribunal and supporting submissions and affidavit are not in evidence. However, based on the Tribunal’s reasons and other evidence before the Court, I infer that the video surveillance material was not lodged, but an affidavit annexing the reports of the orthopaedic surgeon and submissions referring to the surveillance material were lodged with the Tribunal at the time the application was made.

48    Although not entirely clear, as best as can be determined, K & S Freighters made the confidentiality application because it wanted to lodge the video surveillance material and medical reports with the Tribunal before the substantive hearing so the material and reports would be available for use during the hearing. In particular, K & S Freighters wanted to have the video surveillance material available so that it could waive the claimed privilege and disclose that material to Mr King during his cross-examination. Therefore, the confidentiality application appears to have been made under s 35(4)(a) on the ground that privileged video surveillance material and medical reports comprise information that ‘relates to the proceeding’ and, if the application had been successful, it would have lodged the documents with the Tribunal.

49    Accepting the video surveillance material has not been lodged with the Tribunal (or the ART), there remains practical utility in making orders to set aside the Tribunal’s order and decision refusing to make a confidentiality order under s 35(4) of the AAT Act for a number of reasons.

(1)    The supplementary medical reports have evidently been lodged with the Tribunal (now ART). These reports and the submissions K & S Freighters made in support of the confidentiality application make reference to the video surveillance material. No confidentiality order has been made with respect to the medical reports or submissions.

(2)    In the absence of a confidentiality order regarding the medical reports and submissions, Mr King may be entitled to inspect those documents. Alternatively, Mr King may contend that lodging the documents with the Tribunal is inconsistent with maintaining the confidentiality of any privileged communications revealed in those documents and the video surveillance material.

(3)    The Tribunal’s reasons for refusing to make a confidentiality order, in effect, were based on a decision not to permit Mr King to be cross-examined on the video surveillance material without prior disclosure of that material to Mr King. As will be explained later, the Tribunal’s preference for a ‘cards on the table’ approach also informed its decision not to allow K & S Freighters to rely on the video surveillance material at the hearing to cross-examine Mr King. Therefore, the issue of a confidentiality order is linked to the issue of the fairness of permitting K & S Freighters to rely on late disclosed video surveillance and medical reports as evidence in the proceeding.

(4)    In the reconsideration of the confidentiality application the ART would be required to decide if the video surveillance material and medical reports are confidential and subject to legal professional privilege. In so deciding, each of the matters referred to in the preceding paragraphs will also be resolved including the extent to which K & S Freighters would be entitled to cross-examine Mr King on the video surveillance material without disclosure of that material before the hearing.

Was it a reviewable error to apply the practice directions to reliance on surveillance material?

The Tribunal’s reasons

50    Although K & S Freighters only applied for a confidentiality order, because it had applied for that order for the purpose of maintaining the confidentiality of the video surveillance material and medical reports until it had cross-examined Mr King, the Tribunal was also of the view that K & S Freighters was ‘required to seek leave from the Tribunal’ to rely on the video surveillance material and medical reports at the hearing in accordance with paras [9.4] and [9.5] of the Lodgement Direction and para [4.45] of the General Direction (T [25], [63]-[67]).

51    Mr Snell gave unchallenged evidence to the effect that he had made a submission to the Tribunal to the effect that K & S Freighters was not required to seek leave from the Tribunal to rely on the video surveillance material and medical reports because the practice directions had no application to information that was confidential and privileged. Further, that considerations of procedural fairness required the Tribunal to afford K & S Freighters the opportunity to effectively conduct its case by making use of the video surveillance material to test Mr King’s evidence in cross-examination without first disclosing that material to Mr King.

52    The Tribunal concluded that it was not necessary to decide whether the video surveillance material and medical reports were subject to legal professional privilege because it refused K & S Freighters leave to rely on that information at the hearing (T [77]). Otherwise, the Tribunal’s reasons do not address the submission that the practice directions were not applicable to privileged video surveillance material and proceed on the assumption that K & S Freighters required leave to rely on that material and the medical reports. Therefore, the Tribunal’s reasons focus on the party’s submissions regarding the exercise of the discretion and factors for and against granting K & S Freighters leave to rely on the information at the hearing (T [68]-[78]).

53    The Tribunal largely accepted Mr King’s submissions as the reasons for refusing K & S Freighters leave to ‘rely’ on the video surveillance materials (T [73]). There were two substantive reasons for refusing leave.

54    The first reason was substantial delay and an inadequate explanation for that delay. The Tribunal indicated that in accordance with pre-hearing orders K & S Freighters was required to lodge the evidence upon which it intended relying in August 2023. No extension of time was requested to that deadline. K & S Freighters had also failed to apply for leave to rely on the video surveillance material within the 28-day period referred to in the practice directions. It had substantial time and opportunity to gather the video surveillance and provide it to the medical expert. It had a surveillance report from September 2022 and a report from the medical expert in May 2023 commenting on that material. It obtained further video surveillance after the time for lodging evidence in August 2023 and that was not provided to its medical expert until December 2023. The supplementary report was not produced until 24 January 2024. The Tribunal was of the view no proper explanation was given for the delay and that the position in which K & S Freighters found itself was due to its own choices and specifically delay making forensic choices about the evidence upon which it wanted to rely (T [73]-[74]).

55    The second substantive reason was that there would be prejudice to Mr King if leave were granted and there would likely be need for an adjournment for Mr King’s medical experts to consider the video surveillance material (T [75]). The Tribunal’s reasoning in this regard was founded on an assumption that Mr King would not be shown the video footage before his cross-examination and, as a consequence, his medical experts would not have sufficient time to consider the material leading to an inevitable adjournment (T [75]). The Tribunal accepted Mr King’s submission that the surveillance material was ‘like an invisible sword of Damocles’ held over him and his ability to explain himself may be compromised by the element of surprise which raised the possibility that the video surveillance material may not assist the Tribunal to reach the correct or preferrable decision (T [75]).

56    The Tribunal also considered that while K & S Freighters would be prejudiced in that its ability to rely upon the evidence of its medical expert would be compromised, that was due to the choice it had made to seek supplementary reports from the medical witness in circumstances in which it was likely to require leave to rely upon, at least, the last report (T [76]). The Tribunal was of the view that it was unnecessary to determine whether the surveillance materials were subject to legal professional privilege as leave to rely on them would be refused. However, the Tribunal expressed the view that a claim of privilege had not prevented K & S Freighters from advising the Tribunal of an ‘intention to rely on that material (and to seek a confidentiality order) more than 28 days before the day the hearing is scheduled to commence’ (T [71]).

57    K & S Freighters contends that the Tribunal had no power under the practice directions or at all to make an order that pre-emptively excluded evidence before K & S Freighters had made a decision to waive privilege, disclose the video surveillance material to Mr King and seek to rely on that material and the medical reports as evidence at the hearing. K & S Freighters submits that the Tribunal lacked the power to make such an order or direction because it abrogated legal professional privilege. It also contends that the Tribunal failed to accord it procedural fairness because it was denied the opportunity to waive privilege and disclose the material to Mr King and cross-examine him on it at the hearing.

58    Mr King contends that the practice directions applied and, in effect, K & S Freighters was required to elect to waive privilege and rely on the video surveillance material and medical reports at least 28 days before the hearing or risk the Tribunal refusing leave. On the assumption the practice directions apply and material and reports are privileged, Mr King submits that K & S Freighters is now in a better position than it was at the time of the Tribunal’s decision because it will be able to lodge the material and reports more than 28 days before the final hearing and apply for a confidentiality order as the practice directions contemplate. Alternatively, Mr King submits even if the practice directions do not apply, the Tribunal had the power to exclude those materials as evidence in the proceeding under s 33 of the AAT Act. The same factors the Tribunal took into account in refusing leave were the factors that it would have taken into account to exclude those materials as evidence in the application of the power under s 33. Therefore, so Mr King submits, the failure of the Tribunal to decide if those materials are privileged has not deprived K & S Freighters of a realistic prospect of a different outcome.

59    For the reasons already given, para [4.46] of the General Direction and para [9.5] of the Lodgement Direction had no application to the video surveillance material and medical reports if the material and reports were subject to legal professional privilege. As explained later, the failure of the Tribunal to determine the question of privilege involved an error of law on the grounds that the Tribunal asked itself the wrong question, constructively failed to exercise jurisdiction, or implicitly misconstrued the practice directions and mistakenly decided that they applied to privileged video surveillance material, or involved a failure to accord procedural fairness in that it ignored a substantial and clearly articulated argument as the reason leave was not required. Therefore, the real question is whether the Tribunal’s errors in failing to decide the question of privilege were material.

Tribunal power to exclude privileged surveillance material as evidence

60    For the reasons already given, on the assumption that the video surveillance material and medical reports were subject to legal professional privilege, K & S Freighters had the right to maintain the confidentiality of that information and decide if and when to waive privilege through disclosure. But, any circumstance in which privilege is waived after the hearing has commenced is likely to cause prejudice to Mr King. Accordingly the right of K & S Freighters to delay disclosure of privileged material does not necessarily equate to a right to tender and rely on that material as evidence in the proceeding.

61    In general, the authorities favour the view that disclosure of privileged video surveillance material at trial is not an impediment admission of that material into evidence subject to adjournment of the trial and costs to mitigate prejudice to the opposing party: Cooke v Australian National Railways Commission (1985) 39 SASR 146 at 149 (Olsson J); King v Nolan [1992] 2 Qd R 498 at 501 (Thomas J); Davies at [2] (Callaway JA), [34]-[35] (Batt JA). Nonetheless, a degree of caution should be exercised before relying too heavily on authorities from an era pre-dating modern case management provisions. In a modern context, granting an adjournment with costs may not be an appropriate or adequate measure to mitigate the prejudice to opposing parties and the public interest in the timely and efficient resolution of disputes: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5], [30] (French CJ), [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). In Davies the court expressly reserved the question of whether a court’s general discretion to conduct its proceedings as it sees fit authorised the court to make a direction to preclude a party from tendering otherwise relevant and admissible evidence disclosed late in the proceeding: Davies at [2] (Callaway JA, Batt and Chernov JJA agreeing).

62    In carrying out its functions the Tribunal was required to pursue the objective of providing a mechanism of review that was: accessible; fair, just, economical, informal and quick; proportionate to the importance and complexity of the matter; and promoted public trust and confidence in its decision-making: s 2A of the AAT Act. These objectives reflect the same or similar principles as modern case management in court proceedings. The discretionary power to determine its procedure and power to inform itself in such manner as it thought fit conferred on the Tribunal under s 33 were to be exercised and its function to ensure that every party to a proceeding was given a fair opportunity to present its case under s 39 was to be performed in accordance with the objectives of the Tribunal expressed in s 2A. Thus, it should be accepted that, in the exercise of the powers conferred under s 33 and s 39, the Tribunal had a discretion to exclude, in appropriate circumstances, late disclosed privileged material as evidence in the proceeding.

63    A range of factors would have been relevant to the exercise of the discretion to exclude late disclosed privileged video surveillance material and medical reports as evidence. These factors would have included some of the factors the Tribunal took into account when considering whether to grant leave such as the potential prejudice to Mr King if those materials were received as evidence and the potential prejudice to K & S Freighters if those materials were not received as evidence. However, while similar factors would have been relevant to the exercise of the powers, the nature of the discretions was different. One was a power to exclude evidence that was otherwise relevant and probative of the facts the Tribunal was called upon to determine. The other (leave) was a power to include evidence that was otherwise to be excluded.

64    Further, the requirement for leave was founded on non-compliance with a direction for timely lodgement of the video surveillance material with the Tribunal and either giving that material to the other party or applying for a confidentiality order under s 35(4) of the AAT Act with respect to that material. In the context of a failure of timely compliance with an order for discovery (pre-trial disclosure), there is authority for the proposition that: ‘Generally, the sanction for the failure of a party to discover documents is that the party is unable to tender those documents in evidence’ (emphasis added): Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264 at 278 (Sheppard, Einfeld and Beazley JJ). Here, the Tribunal’s approach was consistent with the imposition of a sanction on K & S Freighters for non-compliance with the pre-hearing procedural directions and practice directions that required timely lodgement and disclosure of the video surveillance material. The Tribunal said that the position in which K & S Freighters found itself was due to its ‘own choices, and specifically due to [its] delay in making forensic choices about the evidence [it] wanted to rely upon’ (T [74]). Further, it could have applied for a confidentiality order earlier in the proceeding due to its delay making forensic choices (T [74], [78]).

65    Sanction for non-compliance or delay would not have been a relevant consideration in the exercise of a power to exclude late disclosed privileged video surveillance material and medical reports because the practice directions would not have applied to that material and those reports. That is, there would not have been any non-compliance to ‘sanction’. Moreover, the forensic choice would have been consistent with K & S Freighters’ common law rights flowing from privilege. Therefore, absent the Tribunal’s error in failing to decide if the material and reports were subject to legal professional privilege, the outcome of the leave hearing could realistically have been different.

66    As already mentioned, the potential prejudice to Mr King if the video surveillance and medical reports were received as evidence and the potential prejudice to K & S Freighters if they were not received as evidence were both factors that were relevant to the exercise of the Tribunal’s power to include (leave) or exclude (general discretion) evidence. However, for the reasons that follow, the Tribunal’s approach to these factors may also have differed if it had decided the question of legal professional privilege.

Balancing the potential prejudice to the parties

67    Although not a court and not bound by the rules of evidence, the Tribunal was ‘under a duty to observe the requirement of natural justice’: McMullen v Commissioner for Superannuation [1985] FCA 143; 61 ALR 189 at 208 (Fisher, Gallop and Neaves JJ). Where the rules of natural justice (or procedural fairness) apply, a party is entitled to a fair opportunity to correct or contradict any relevant material prejudicial to it: Kioa v West [1985] HCA 81; 159 CLR 550 at 569 (Gibbs CJ). Procedural fairness does not necessarily involve the extension of the opportunity of cross-examination to any party to a proceeding, but it may, in particular circumstances, do so. Procedural fairness does not require the application of fixed or technical rules; it requires fairness in all the circumstances: Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 at [73] (Jessup J), citing O'Rourke v Miller [1985] HCA 24; 156 CLR 342 at 276 (Gibbs CJ).

68    Where a party is given the opportunity to cross-examine a witness, a court has (and the Tribunal had) a discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity. However, the right to cross-examine means the right to cross-examine effectively, and if a court or tribunal fetters cross-examination in such a way that a witness’s evidence cannot properly be tested, then procedural fairness will be denied: Hayes at 289-290; Bessey at [15]-[16] (Gyles J).

69    Regarding Hayes, in Rawson Finance Jessup J said:

[74]    The judgment of Wilcox J in Australian Postal Commission v Hayes (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135 has occasionally been taken as providing encouragement for the view that cross-examination of witnesses called to give evidence before the tribunal must be permitted. The actual question which came before the court in that case was whether a respondent to a claim for compensation had been denied procedural fairness when the tribunal ruled that a video which it proposed to put to the claimant under cross-examination be played in her evidence-in-chief. There was no suggestion that she would not be cross-examined, but Wilcox J accepted the contention that, by trammelling upon the way in which counsel for the respondent (to the claim) proposed to use the video in cross-examination, the tribunal had denied it procedural fairness. The case is obviously no authority for the proposition that to admit evidence without the other party having the opportunity to test that evidence by cross-examination must necessarily amount to a denial of procedural fairness.

70    In Hayes Wilcox J said (at 326-327):

…

Counsel argue that the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply. Moreover, although counsel accept that there exists some discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity, it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness' evidence cannot properly be tested, procedural fairness has been denied. Reference is made to R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 33-34 by way of example.

In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant. One way of testing the credit of such a claimant, counsel say, is to ask questions which require the claimant to commit himself or herself in relation to the extent of the disability the actions which he or she can, and cannot, perform before confronting the claimant with a film depicting his or her actions. If it should happen, in such a case, that the film shows the claimant performing actions which have been said to be impossible, doubt may be cast upon the claimant's credit, causing the tribunal of fact to be cautious about relying on the claimant's evidence in relation to matters incapable of objective demonstration. If, in such a case, a claimant has seen. the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed and uncontradicted.

I think that the above submission must be accepted. It is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Mr J W Smyth QC called "closing the gates": see "The Art of Cross Examination" (Autumn 1988) Bar News at 12-13. It is important, in that process, that a mendacious witness not be aware of the material available to the crossexaminer to contradict the evidence under manufacture.

…

71    In Bessey during cross-examination of a witness in the Tribunal the cross-examiner sought to show the witness some video tape. The Tribunal ruled the video inadmissible for any purpose essentially because no notice of its existence had been given to the witness. Justice Gyles expressed the view that the Tribunal’s reasoning was ‘directly contrary to a considerable body of authority’ including Hayes and said that the ‘authorities establish that, absent special circumstance, [the cross-examining party] was denied natural justice or procedural fairness at least in not being able to show the video to the [witness] in cross examination and ask questions based upon that.’ His Honour was also critical of the Tribunal for departing from Hayes on ‘policy grounds’ and to do so was an error of law: Bessey at [16]-[17].

72    However, in the context of a direction that persons would not be permitted to cross-examine witnesses in a Royal Commission unless and until they had provided a signed statement of evidence advancing material contrary to the evidence of that witness, Heerey J declined to follow Hayes. His Honour said that Hayes appeared ‘to elevate a useful forensic technique to the status of a mandatory legal rule binding on an administrative decision-maker: Kingham v Cole [2002] FCA 45; 118 FCR 289 at [26].

73    While I do not necessarily accept that Wilcox J intended to propound a binding legal rule, having regard to the nature of the Tribunal proceedings, the absence of a right to cross-examine and that the requirements of procedural fairness are not fixed and require fairness in all the circumstances, the relevant principle to be extracted from authorities such as Hayes and Bessey is that there will be a failure to accord a cross-examining party procedural fairness if the Tribunal fetters the cross-examination in such a manner as to deny the cross-examining party a fair opportunity to correct or contradict any relevant material prejudicial to it. In the particular circumstances of Hayes and Bessey, the directions of the Tribunal had that effect. In the particular circumstances of Kingham, the direction of the Royal Commissioner did not have that effect. Considerations of the potential prejudice to the witness cross-examined and the opposing party may also be taken into account when considering whether the use of a particular forensic technique will deny the cross-examining party procedural fairness.

74    As already mentioned, in refusing to make a confidentiality order, the Tribunal expressed a preference for disclosure and a ‘cards on the table approach’ and applying that approach concluded that K & S Freighters would not be denied procedural fairness if it were not permitted to withhold disclosure of the video surveillance material and medical reports. Further, in refusing to allow reliance on those materials the Tribunal emphasised the prejudice to Mr King of being taken by surprise by the surveillance material at the hearing. The reference the Tribunal made likening that material to the sword of Damocles was an allusion to the following passage from the reasons of Ipp J in Boyes (at [82]-[83]) the Tribunal had earlier cited in its reasons (T [70]-[71], [75]):

An aspect of the learned Judge’s approach that strikes me as being particularly unfair is that it allows the respondent, shortly before trial, to obtain carte blanche with regard to the use of the privileged and secret video film, without committing himself to tendering it at trial. The respondent has the option to use the film and the appellant does not know whether it will be used.

Plainly, in such circumstances, the video film can be used in terrorem. It is held over a plaintiff like an invisible sword of Damocles. A plaintiff will often never be certain as to what the film reveals; it is generally (as in the present case) not made known to a plaintiff when and where the film was taken, and the subject matter of the film is ordinarily not disclosed in the detail that would enable the plaintiff to identify the occasion when he or she was being photographed. So the plaintiff is faced with mystery evidence that may well be (but also may not be) damning. The plaintiff would simply not know and might never be able to find out. Even if the plaintiff is completely innocent of any simulation, he or she is likely always to suffer from the fear that video material might have to be explained and, given the suddenness and surprise involved in a trial confrontation, it might be difficult to give a convincing explanation. I have pointed out that the proposition that it is not unfair to the appellant to withhold the video film from her until cross examination, because she should know what she can do and knows what she has done in the past, cannot be sustained.

75    The unfairness and in terrorem use of video surveillance material to which reference is made in Boyes applies to circumstances in which the video surveillance material is not privileged or, as in Boyes, the privilege was abrogated by the applicable rule of the court. In that circumstance, it may be unfair to allow the cross-examining party carte blanche. That is not the case where the cross-examining party is under no obligation to disclose the video surveillance material because it is subject to legal professional privilege. The witness may not be aware of the existence of the video surveillance material until it is produced to the witness during cross-examination. In that circumstance, the sword of Damocles analogy is inapposite and any unfairness of withholding disclosure is merely a feature of the common law right of the party entitled to the privilege to waive that privilege at a time of its choosing.

76    Moreover, absent an obligation to disclose video surveillance material before the hearing, any unfairness to the witness of the suddenness and surprise involved in a trial confrontation is of diminished significance. As Wilcox J observed ‘it is an everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted with documents’ and it is often important in that process ‘that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture’: Hayes at 327. I do not believe much has changed since Wilcox J made those observations in 1989.

77    It is also important not to confuse the cross-examination of a witness on a document as a means of obtaining concessions to contradict evidence that the witness has earlier given with tender of that document as the means of contradicting that evidence. A cross-examining party may ‘show’ a witness a document and cross-examine on that document without necessarily tendering the document in evidence. In court proceedings there are well-established principles that strike a balance between fairness to the witness and fairness to the cross-examining party relating to cross-examination on third-party hearsay evidence (such as video surveillance material) which is not tendered in evidence.

78    For proceedings in Commonwealth courts these principles are set out in s 44 of the Evidence Act 1995 (Cth). In accordance with these principles, even if the third-party hearsay is not admissible or will not be admitted into evidence, a cross-examining party may produce the document to the witness and, subject to the witness having a fair opportunity to view and consider the document (or video surveillance material), may be asked whether, having examined the contents of the document, the witness stands by the evidence that he or she has given. But, in those circumstances, neither the cross-examiner nor the witness is to identify the document or disclose any of its contents: s 44(3). The common law principles are to similar effect: see, e.g., R v Orton [1922] VLR 469; 28 ALR 193; Australian Securities and Investments Commission v Rich [2006] NSWSC 643; 201 FLR 207 at [3], [18]-[24] (Austin J).

79    In Rich Austin J (at [22]) noted that reservations have been expressed about the fairness of the R v Orton procedure to a witness who has not seen the document before and the fairness to the opposing party of the use of a document that will not be tendered due to the inferences the trier of fact (such as a jury) will inevitably draw about the contents of the document. However, as Austin J observed in Rich, any unfairness in surprising a witness can be addressed by affording the witness a reasonable opportunity to consider the document before cross-examination on the document: at [24]. In the context of a proceeding in the Tribunal, any unfairness to the opposing party is not as relevant where a document has been or will be excluded from evidence because that party has successfully objected to the Tribunal receiving the document as evidence. Moreover, in Bessey Gyles J alluded to the use of the R v Orton procedure in the Tribunal and expressed the view that it would be procedurally unfair for the cross-examining party if denied ‘at least … being able to show the video’ to the witness: at [16].

80    Insofar as proceedings in the Tribunal concerned review of decisions under the Compensation Act, the principles to be derived from Hayes and Bessey were not distinguishable in the circumstances of this case if the video surveillance material was subject to legal professional privilege. Relevantly, Hayes and Bessey are authority for the proposition that in circumstances in which there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the witness's account of his or her symptoms is likely to be critical, absent special circumstances, the cross-examining party would ordinarily be denied a fair opportunity to correct or contradict the witness’s account if not permitted to, at least, show the witness video surveillance material. Likewise, in the Tribunal’s evaluation of the potential prejudice to Mr King the principles to be derived from Hayes and Bessey suggest that absent ‘special circumstances’ it would be a denial of procedural fairness to not, at least, permit K & S Freighters to show the video surveillance material to Mr King and cross-examine him on it using the R v Orton procedure if the material was subject to legal professional privilege. Further, and in any event, irrespective of whether or not the video surveillance material was or was not received as evidence in the proceeding, ordinarily, any unfairness arising from the suddenness or surprise of confrontation with a previously undisclosed document can usually be addressed by affording the witness a reasonable opportunity to view the material before continuing with the cross-examination on that material.

81    It follows that, in its consideration of the potential prejudice to K & S Freighters and the potential prejudice to Mr King, the Tribunal failed to take into account that Hayes and Bessey were binding and directly applicable authorities if the video surveillance material were subject to legal professional privilege. Thus, absent error, the Tribunal’s conclusion that K & S Freighters would not be denied procedural fairness if it were not permitted to cross-examine Mr King on the video surveillance material and the decision, in effect, to exclude the video surveillance material and medical reports as evidence in the proceeding could also realistically have been different.

The Tribunal’s decision to refuse leave was affected by reviewable error

82    The Tribunal made at least the following reviewable errors in its decision refusing to grant K & S Freighters leave to rely on the video surveillance material and medical reports at the hearing listed to commence on 12 February 2024.

(1)    In deciding that K & S Freighters required leave to rely on the video surveillance material and medical reports because these materials had not been lodged with the Tribunal more than 28 days before the commencement of the hearing in accordance with paras [4.45]-[4.46] of the General Direction and paras [9.4]-[9.5] of the Lodgement Direction, the Tribunal asked itself the wrong question. The correct question was whether those paragraphs of the practice directions were inapplicable and leave was not required because the video surveillance material and medical reports were subject to legal professional privilege.

(2)    Relatedly, in failing to decide if the video surveillance material and medical reports were subject to legal professional privilege it failed to determine the central issue upon which K & S Freighters contended that the practice directions were inapplicable and leave was not required. That was a constructive failure to exercise the power conferred on the Tribunal under s 33 and s 39 of the AAT Act or a failure to accord K & S Freighters procedural fairness.

(3)    In asking itself if K & S Freighters should be granted leave to rely on the video surveillance material and medical reports at the hearing listed to commence on 12 February 2024 it did so implicitly on the misconstruction of the practice directions and the mistaken assumption that they applied to information that was confidential and subject to legal professional privilege. That was an error of law.

(4)    Relatedly, in considering potential prejudice to Mr King if leave were granted and potential prejudice to K & S Freighters if leave were refused, it applied principles that favoured disclosure of video surveillance material to Mr King before the hearing. It did so implicitly on the mistaken understanding and assumption that these principles were applicable to video surveillance material and medical reports that were subject to legal professional privilege. That was also an error of law.

83    The Tribunal’s errors of law and failure to accord K & S Freighters procedural fairness were material because absent the errors there is a realistic prospect that the outcome of the leave hearing would have been different.

Disposition

84    For the preceding reasons the Tribunal made material errors of law and failures to accord K & S Freighters procedural fairness in its decisions refusing to make a confidentiality order and to grant leave. These errors are sufficient to engage the Court’s jurisdiction at least to make orders under s 16 of the ADJR Act.

85    K & S Freighters applies for the issue of a writ of certiorari (or an order in the nature of certiorari) quashing or setting aside the orders of the Tribunal, the issue of a writ of mandamus (or an order in the nature of mandamus) directing the ART to reconsider granting K & S Freighters an order under s 70(2) of the ART Act in terms equivalent to the order it sought under s 35(4) of the AAT Act, and the issue of a writ of prohibition or an injunction restraining the ART from acting on or giving effect to the Tribunal’s orders. K & S Freighters also applies for prerogative relief or orders under s 16 of the ADJR Act that would have the effect of requiring the ART to grant K & S Freighters a confidentiality order and to permit K & S Freighters to rely on the surveillance material and medical reports in the proceeding before the ART.

86    It is appropriate to make orders setting aside the Tribunal’s orders and decision and remitting the application for confidentiality orders to the ART for determination according to law. However, it is not appropriate to direct that the ART reconsider that application as if it were an application under s 70(2) of the ART Act.

87    After repeal of the AAT Act and abolition of the AAT, Mr King’s proceeding in the AAT is to continue and be finalised by the ART ‘in a manner that the ART considers is efficient and fair’ having regard to the repeal of the AAT Act, the enactment of the ART Act and the effect of the ART Transitional Provisions Act. The ART must, as far as possible, continue the proceeding under the ART Act: Sch 16 item 24(2), (4) of the ART Transitional Provisions Act. The ART Act applies in relation to a thing done by, or in relation to, the AAT as if the thing had been done by, or in relation, to the ART: Sch 16 item 26(1). Pursuant to s 70(2) the ART has power to make a confidentiality order under s 70(2) and is to take into account the confidential nature of the information under s 71(2)(d)(iii) of the ART Act and other factors of a similar character to the factors the AAT was required to take into account under s 35(5) of the AAT Act. Nonetheless, as the confidentiality application was made under s 35(4) of the AAT Act in a proceeding that was not finalised at the time the AAT Act was repealed and the ART Act came into force, having regard to the applicable provisions of the AAT Act, ART Act and ART Transitional Provisions Act, the manner in which the ART applies the provisions of the ART Act to an application made under s 35(4) under the AAT Act is a matter for the ART to determine in accordance with the ART Transitional Provisions Act.

88    It is not necessary or appropriate to make an order for prohibition or an injunction because the orders will be set aside. It is also not appropriate to make any order that would compel the ART to make a confidentiality order or to permit K & S Freighters to rely on the material in the ART proceeding because the question of privilege has not been decided and Mr King does not concede it. Further, for the reasons already given, these are matters that require the exercise of a discretionary power on the part of the ART.

89    K & S Freighters made the formal submission that it would not seek its costs of this application other than certain costs associated with an earlier adjournment of the final hearing. Nonetheless, the costs of this application will be reserved and the parties afforded an opportunity to file agreed or competing proposals for orders relating to costs.

Associate:

Dated:    6 February 2026