No confidentiality order or leave to rely on surveillance evidence granted in favour of a “cards on the table” approach

Date: September 12, 2024

King and K & S Freighters Pty Limited (Compensation) [2024] AATA 244.

Key Points:

• The Tribunal was asked to consider making a confidentiality order over and granting leave to rely on surveillance footage and associated materials (surveillance evidence).
• The Tribunal decided not to grant the requested confidentiality order over the surveillance evidence based on ensuring procedural fairness to the Applicant by not ambushing the Applicant or their medical expert witnesses with evidence they had not seen prior.
• The Tribunal decided not to grant leave to rely on the surveillance evidence based on procedural fairness and given the Respondent had extensive time to have made forensic choices about the evidence they wanted to rely on.

Background:

This matter concerns an ex parte interlocutory proceeding.

The Respondent made an Application for a confidentiality order under section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) over surveillance footage and associated materials (surveillance evidence). The confidentiality order was sought so the Respondent would not be required to disclose the existence or content of the surveillance evidence to the Applicant prior to their cross-examination. The Respondent submitted that this would enable it to undertake effective cross-examination of the Applicant, due to the Applicant’s credibility being questioned because they had withheld matters concerning their health and capacity. This Application was made six days prior to the commencement of the substantive hearing.

During the ex parte hearing, the Tribunal raised the issue of the Respondent being required to seek leave from the Tribunal to rely on the surveillance evidence as it was not provided to the Tribunal and Applicant at least twenty-eight days before the commencement date of the substantive hearing. This was raised in light of sections 37 and 38AA of the AAT Act, the Tribunal’s General Practice direction and the Lodgement of Documents Practice Direction.

The Respondent therefore sought leave to rely on the surveillance evidence but only sought leave six days prior to the commencement of the substantive hearing.

The Law:

Section 35(4) of the AAT Act provides that 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 relates to a proceeding and is either information that comprises evidence or information about evidence, or information lodged with or otherwise given to the Tribunal.

Conclusion:

On the confidentiality order sought, the Tribunal concluded that if the confidentiality order were granted, the Applicant would likely not be afforded procedural fairness.

The Tribunal reasoned that the Respondent would not be denied the opportunity to test the Applicant’s credibility in cross-examination given other evidence, including inconsistent statements and lack of disclosure of the Applicant’s injuries, which could be put to the Applicant instead.

The Tribunal was also not satisfied that the Applicant’s credibility was the sole issue in dispute in the substantive proceedings given the abundance of medical evidence available for the Tribunal to consider and or the Respondent to put to the Applicant during cross-examination.

In reaching its decision, the Tribunal affirmed comments made by Matthew J in Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279 that it would only be in rare situations that a party would be denied procedural fairness if they were not permitted to withhold relevant material from the other party, and that the argument that showing the material may contradict another party’s version of events, is not enough even if credibility is critical to the case.

The Tribunal noted that the Tribunal is part of the Executive arm of government and that Tribunal proceedings are more inquisitorial rather than adversarial. By seeking to effectively ambush the Applicant and their medical expert witnesses with evidence they had never seen before, the Respondent would be seeking an approach that is less consistent with the Tribunal’s inquisitorial approach.

With respect to the leave sought by the Respondent, the Respondent submitted that their ability to rely on supplementary medical reports, prepared by a practitioner after viewing the surveillance evidence, would be compromised if leave was not granted.

The Applicant submitted that the case law including Hayes and Bessey supported a “cards on the table” approach whereby relevant evidence would be disclosed to both parties in advance of the hearing.

The Tribunal did not accept the Respondent’s reasons, particularly in relation to any delays noting that the Respondent facilitated these delays because of the Respondent’s delay in making forensic choices about the evidence they wanted to rely on.

The Tribunal endorsed the “cards on the table” approach as being more consistent with the Tribunal’s function and objectives to reduce procedural delays including adjournments the Applicant would likely seek to review the new evidence.

For this reason and to facilitate procedural fairness for the Applicant with respect to showing the surveillance evidence, the Tribunal did not grant leave to rely on this evidence.

Lessons Learnt:

The decision demonstrates that the Tribunal does not take matters concerning procedural fairness for Applicants lightly. The threshold for withholding access to evidence prior to proceedings and cross-examination remains high despite issues of credibility which may arise. Parties should also remain conscious about filing dates and timeframes as although the timeframes are not completely inflexible, applications seeking leave or extensions of time must be made promptly and with sufficient reason.

Contact:

Download here:  King and K&S Freighters Pty Limited

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