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

King and K & S Freighters Pty Limited (Compensation) [2024] AATA 244 (20 February 2024)
Division:GENERAL DIVISION
File Numbers: 2022/1713; 2022/2152
Re:Deakon King
APPLICANT

AndK&S Freighters Pty Ltd
RESPONDENT

REASONS FOR INTERLOCUTORY DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:20 February 2024
Place:Perth

On 7 and 9 February 2024 I made the following order:
The Tribunal refuses to grant a confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1974 (Cth) over surveillance footage and associated materials obtained by the Respondent and supplementary medical opinion in relation to the events depicted in the surveillance footage, as described and/ or annexed to the affidavit of Mr Snell dated 6 February 2024.

On 9 February 2024, I made the following order:
The Tribunal refuses to give leave to the Respondent to rely upon surveillance footage and associated materials obtained by the Respondent and supplementary medical opinion in relation to the events depicted in the surveillance footage, as described and/ or annexed to the affidavit of Mr Snell dated 6 February 2024.

These are my written reasons for the above orders.
.....................[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – interlocutory orders – workers’ compensation
CONFIDENTIALITY ORDER – Respondent applied for confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) over video surveillance and associated materials (surveillance evidence) – ex-parte hearing in the absence of the Applicant to determine whether confidentiality order should be granted – procedural fairness – application for confidentiality order made by Respondent six business days before substantive hearing listed to commence – confidentiality order refused – Applicant previously unaware of existence of surveillance evidence and has not seen the evidence – Hayes and Bessey distinguished – trend in the case law towards a “cards on the table” approach
LEAVE TO RELY ON SURVEILLANCE EVIDENCE – further interlocutory hearing to determine whether Respondent should be given leave to rely on surveillance evidence – Respondent sought to rely on surveillance evidence less than 28 days before substantive hearing listed to commence – leave for Respondent to rely on surveillance evidence refused – unnecessary to decide whether surveillance evidence attracts legal professional privilege because leave refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 35(4)
Safety, Rehabilitation & Compensation Act 1988 (Cth) s 14
CASES
Australian Postal Commission and Hayes (1989) 23 FCR 320
Australian Postal Corporation v Bessey [2001] FCA 266
Boyes v Colins [2000] WASCA 344
Buttigieg and Comcare [2017] AATA 1002
Comcare v Maganga [2008] FCA 285
Digby v Essex County Council [1994] PIQR P53
Esso Australia Resources v Commissioner of Taxation [1999] HCA 67
Khan v Armaguard Ltd [1994) 3 All ER 545
Morton v Colonial Life Assurance Society Limited [2013] FCA 681
Re Stoiche and Telstra Corporation Ltd (1995) 40 ALD 369
Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396
SECONDARY MATERIALS
Administrative Appeals Tribunal General Practice Direction
Administrative Appeals Tribunal Practice Direction: Lodgement of Documents under s 37 and s 38AA of the AAT Act
REASONS FOR INTERLOCUTORY DECISION
Senior Member Dr M Evans-Bonner
20 February 2024
BACKGROUND

Mr King is seeking review in this Tribunal of two decisions made by the Respondent.
The first is a Reviewable Decision dated 17 January 2022 (T25). The Reviewable Decision affirmed a determination dated 6 December 2021 to deny liability under s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) (SRC Act) to pay Mr King compensation for “lower back pain” (T22). Mr King lodged an application seeking a review of this decision in the Tribunal on 3 March 2022 (T2). This is application 2022/1713.
The second is a Reviewable Decision dated 11 March 2022 (T42). That Reviewable Decision affirmed a determination dated 1 March 2022 to deny liability to pay Mr King compensation under s 14 of the SRC Act for a secondary condition of “PTSD and anxiety” (T40). Mr King lodged an application seeking a review of this decision in the Tribunal on 17 March 2022 (T29). This is application 2022/2152.
The substantive hearing was listed in November 2023 for five days commencing on Monday 12 February 2024 until Friday 16 February 2024.
These reasons arise from an application made by the Respondent on 2 February 2024 for a confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) over surveillance footage and associated materials, being six business days before the hearing was scheduled to commence.
I define the surveillance footage and associated materials in more detail below, but for convenience, I will refer to them as the Surveillance Evidence.
I refused that confidentiality order, and subsequently refused leave to the Respondent to rely on the Surveillance Evidence.
These are my reasons for refusing to grant the confidentiality order, and for refusing to give leave to the Respondent to rely on the Surveillance Evidence.
I have produced these reasons expeditiously to assist the parties and the Federal Court of Australia because the Respondent stated an intention on 9 February 2024 to seek relief from the Federal Court.
THE SPECIFIC ORDERS MADE
The orders in question are as follows.
I made the first interlocutory order on 7 February 2024, following an ex-parte telephone hearing with the Respondent on 6 February 2024. It was:
The Tribunal refuses to grant a confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1974 (Cth) over surveillance footage and associated materials obtained by the Respondent and supplementary medical opinion in relation to the events depicted in the surveillance footage, as described and/ or annexed to the affidavit of Mr Snell dated 6 February 2024.
Due to an administrative error, only application 2022/1713 was included on that order. I became aware of that omission on 9 February 2024, and issued an identical order for application 2022/2152.
I also issued the following direction on 7 February 2024:
On or before Thursday 8 February 2024, the parties are to confer about proposed draft directions concerning how the application is to proceed, including whether the hearing can proceed next week and the filing of any additional evidence and timeframes. The parties are to advise the Tribunal about the result of their conferral and provide a draft direction for the Tribunal’s consideration if it can be agreed.
I made the second interlocutory order on 9 February 2024. Both application numbers were included on that order. It was:
The Tribunal refuses to give leave to the Respondent to rely upon surveillance footage and associated materials obtained by the Respondent and supplementary medical opinion in relation to the events depicted in the surveillance footage, as described and/ or annexed to the affidavit of Mr Snell dated 6 February 2024.
THE EX-PARTE HEARING – CONFIDENTIALITY ORDER
On Friday 2 February 2024, the Respondent’s legal representative, Mr Snell, emailed the Tribunal attaching a letter requesting an urgent ex-parte hearing.
In that letter, Mr Snell stated he had received instructions on 1 February 2024 from the Respondent to apply to the Tribunal for a confidentiality order under s 35(4) of the AAT Act over what was described as:
a. Surveillance footage and associated materials obtained by the Respondent in circumstances attracting legal professional privilege, and
b. Certain medical opinion recently received in relation to the events depicted in the surveillance footage.
The details of that evidence were set out in an affidavit of Mr Snell. At 8:55am AWST on the morning of the ex-parte hearing, the Respondent lodged with the Tribunal an unsigned affidavit of Mr Snell with Annexures. Before the hearing commenced, a signed and witnessed version was filed. The affidavit included the timeline for the surveillance and outlined the Surveillance Evidence that had been obtained. Consequently, when drafting refusal to grant the confidentiality order, I referred to the Surveillance Evidence by reference to Mr Snell’s affidavit as “surveillance footage and associated materials obtained by the Respondent and supplementary medical opinion in relation to the events depicted in the surveillance footage, as described and/ or annexed to the affidavit of Mr Snell dated 6 February 2024”. For clarity, this is what I referred to above as the Surveillance Evidence.
The confidentiality order was sought so that the Respondent would not be required to disclose the existence or content of the Surveillance Evidence to the Applicant prior to his cross-examination, at which time the Respondent could elect to put that material to the Applicant.
This was the first time the Tribunal was alerted to the existence of the Surveillance Evidence. As I stated above, Friday 2 February 2024 was the sixth business day before the commencement of the substantive hearing, listed to commence on Monday 12 February 2024.
An Associate from the Tribunal emailed Mr Snell on the afternoon of Friday 2 February 2024 to advise my availability for the ex-parte hearing subsequently scheduled for Tuesday 6 February 2024.
I conducted that hearing at 11.30am AWST on Tuesday 6^th February 2024. Mr Seymour of counsel appeared for the Respondent, instructed by Mr Snell. There was precedent for hearing an ex-parte application in cases concerning surveillance footage and associated materials such as Re Stoiche and Telstra Corporation Ltd (1995) 40 ALD 369 and Buttigieg and Comcare [2017] AATA 1002.
Immediately prior to that interlocutory hearing, the Respondent filed a document titled, “Respondent’s submissions on s 35(4) application” (s 35 Submissions) comprising [35] paragraphs. The first two paragraphs of the s 35 Submissions succinctly summarise the Respondent’s submissions:
The Respondent’s Application under s 35 (4)
1. The Respondent, for reasons set out further below, seeks an order that it be permitted to withhold, until the Applicant has been cross-examined by it, certain material obtained by it in circumstances attracting legal professional privilege.
2. It makes that application in order that it be permitted to properly conduct its case, and in particular that it might undertake effective cross-examination of the Applicant, in circumstances where the Respondent says:
• the evidence suggests the Applicant has not been candid about matters concerning his health and capacity
• his disputed conditions are both conditions as to the existence, consequences and severity of which the Tribunal is largely dependent upon an assessment of his credit and the truthfulness of his account to experts,
• it apprehends that if aware of the material when giving evidence in chief he will likely tailor his evidence dishonestly to accommodate it.
So do the last three paragraphs of the Respondent’s s 35 Submissions:
Conclusion
34. The Respondent submits that by reason of the large number of instances identified above in which, when given the opportunity to give a candid account of his history, he has given plainly misleading or frankly untruthful answers, the likelihood is that if the Applicant is made aware of the surveillance material and medical reports based upon them, he will similarly give untruthful evidence to the Tribunal in an effort to accommodate it.
35. For that reason, the Respondent contends that the orders sought are:-
• necessary for it to properly conduct its case;
• unlikely to cause substantial prejudice to the Applicant or undue disruption to the conduct of the case;
• may shorten other aspects of the case and
• to the extent any such disruption or prejudice might be unavoidable, the balance of convenience favours the making of orders that are conducive to it receiving an accurate appreciation of the facts in issue, rather than one likely to be untruthful or misleading.
36. Accordingly, the Tribunal ought therefore make the orders sought by the Respondent under s 35 (4).
Mr Seymour’s submissions for the Respondent at the ex-parte hearing expanded upon and reiterated these written submissions. In summary, Mr Seymour argued that the Respondent would be denied procedural fairness if they were not granted the confidentiality order because:
·The case was dependent on the evidence of the Applicant. Whether he suffered from the claimed injuries could not be established by independent, objective evidence. Therefore, the Applicant’s account, and his credibility, is “critical” to the outcome of the applications.
·The opinions of the medical experts were dependent of the Applicant’s self-reporting of his symptoms. For example, the Respondent submitted that the claimed psychological injury could only be based on what the Applicant self-reported to the medical practitioners assessing him. I will refer to this as the Self-reporting Submission which I will return to in a moment.
·The Applicant has a history of giving untrue answers regarding his prior claims, for example in his pre-employment questionnaire (T5). Consequently, if the Applicant was aware of the existence of the surveillance footage before cross-examination, he would tailor his evidence accordingly.
At the ex-parte hearing I raised the issue that the Respondent was required to seek leave from the Tribunal to rely on the Surveillance Material because it was not provided to the Tribunal and the Applicant at least 28 days before the day on which the hearing was listed to commence: see [9.4] and [9.5] of Practice Direction: Lodgement of Documents under s 37 and s 38AA of the AAT Act (Lodgement of Documents Practice Direction) and [4.45] of the General Practice Direction.
I expressed concern about the lateness of the material. That concern was, in part, based on the timeline of events set out in Mr Snell’s affidavit, in particular that the Respondent had arranged surveillance from mid-2022, received a report from the private investigation firm in September 2022, received a supplementary report from Dr Ghoshal who had reviewed the footage dated 25 May 2023, and had arranged further surveillance approximately a week after a direction requiring that the Respondent file any further evidence upon which they intended to rely at the hearing by 1 August 2023. I will provide more details about this timeline below because it is relevant to the issue of leave.
On 7 February 2024 I made the following order:
The Tribunal refuses to grant a confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1974 (Cth) over surveillance footage and associated materials obtained by the Respondent and supplementary medical opinion in relation to the events depicted in the surveillance footage, as described and/ or annexed to the affidavit of Mr Snell dated 6 February 2024.
I did not provide reasons at that stage due to the urgency of issuing an interlocutory order, given the proximity to the commencement of the substantive hearing.
I will now provide an overview of relevant legal principles and my reasons for refusing to make the requested confidentiality order.
Cases such as Australian Postal Commission and Hayes (1989) 23 FCR 320 (Hayes) and Australian Postal Corporation v Bessey [2001] FCA 266 (Bessey), lend support to a finding that a respondent may be denied procedural fairness if they are not permitted to cross-examine an applicant with surveillance material such as video footage that has not previously been disclosed to the applicant.
For example, in Hayes at 326-7, Wilcox J stated:
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 cross-examiner to contradict the evidence under manufacture.
Bessey was an appeal from a decision made by the Tribunal under the SRC Act. There were two grounds of appeal, and after considering the first ground, Gyles J decided to remit the application to the Tribunal. Gyles J therefore observed that it was not strictly necessary to deal with the second ground of appeal but provided some guidance to the Tribunal because the matter was being remitted. That ground concerned whether there was a denial of procedural fairness by the Tribunal in deciding that the Respondent could not rely upon video surveillance evidence. During cross-examination, counsel for the Australian Postal Corporation (Australia Post) sought to show the applicant a video tape. The Senior Member decided that the video tape was “inadmissible for any purpose”. Gyles J found that the view of the Senior Member was “directly contrary to a considerable body of authority in this and other Courts” and stated that: “[t]hose authorities establish that, absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross examination and ask questions based upon that.” Gyles J observed that the Senior Member had made some attempt to distinguish Hayes but opined that the Senior Member made the decision on “policy grounds”, and that Australia Post had been denied procedural fairness. Gyles J also provided the following clarification: “I am not dealing here with either the giving of a general practice direction by the President of the Tribunal or with the giving of express directions as to procedure in advance of the hearing of a particular case.” That is, whether the Respondent should be permitted to rely upon video footage, the existence and content of which was not previously disclosed to an applicant, should be determined with reference to the specific facts and circumstances of the individual case.
Further submissions as to whether I should have granted the confidentiality order were made by both parties at the interlocutory hearing on 9 February 2024. At that interlocutory hearing Mr Grey appeared as counsel for the Applicant, and Mr Snell appeared for the Respondent.

Mr Grey submitted that since cases like Hayes and Bessey, the authorities had developed to support a “cards on the table” approach whereby relevant evidence would be disclosed to both parties in advance of the hearing. One of these authorities was Boyes v Colins [2000] WASCA 344 (Boyes), a decision of the Western Australian Court of Appeal. In Boyes, the Court of Appeal upheld an appeal against an earlier order made by the trial Judge. That order gave the respondent leave to put “video film” of the appellant in evidence at a personal injury trial and excused the respondent from producing the video film to the appellant for inspection prior to trial.
Relevantly, Ipp J (with whom the other Justices agreed) observed this trend of “greater disclosure” and that inaccurate testimony could result from the witness being caught by surprise. Ipp J stated, at [57]-[58]:
The trend throughout the common law world is for greater disclosure and an open trial system. More and more jurisdictions require the exchange of witness statements prior to trial. That is indeed the case in trials before this Court. I do not accept that there is any difference between personal injuries litigation and commercial and other kinds of litigation that fall within the jurisdiction of this Court, warranting a different kind of treatment for the former.
Witnesses nowadays are generally prepared for their task of giving evidence by being shown the relevant discovered documents. It is recognised that human memory is such that many witnesses need time to absorb extrinsic material that is relevant to their versions of events. For witnesses to give evidence that is as accurate as possible, they need to refresh their memories by reference to contemporaneous material. A proper professional approach to the preparation of witnesses often requires many hours to be devoted to this task. To confront witnesses by surprise by material of this kind is generally accepted to be unfair and capable of resulting in distorted and inaccurate testimony. Honest witnesses often become flustered when unexpectedly shown documents of which they are unaware: see generally in this regard Craig v Troy, unreported; SCt of WA; Library No 950067; 24 February 1995. This is one of the reasons why late discovery can lead to adjournments of trials. There is no reason to apply different rules and attach different consequences to the use of video films.
Ipp J, at [59], endorsed the comments of Mathews J in Re Taxation Appeals NT 94/281-291 (1995) 30 ATR 1279 (also reported as Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683) (Taxpayer case). Matthews J was sitting as President in the Taxation Division of the Tribunal and was considering whether to make a confidentiality order restricting disclosure of documents to an applicant so they could be put to him during cross examination to see if the applicant gave inconsistent answers. Matthews J emphasised that the overriding consideration was one of procedural fairness, at [19]-[20]:
The overriding consideration in all these situations is that of procedural fairness. Would a party be so impeded in the presentation of its own case and in the challenging of its opponent’s case that fairness dictates that relevant material be withhold from the opponent? The situations in which this question were to receive an affirmative answer would, in my view, be rare indeed. It would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party’s version, even accepting that the credibility of that other party was critical to the case.
I should also say that it would be very unfortunate indeed if any rule of practice or procedure were to be developed within the Tribunal which assumed that witnesses before the Tribunal, whether they be parties or otherwise, were likely to lie upon their oath and to temper their evidence according to their knowledge of the material which was available to their opponents. It is important to maintain the distinction between safeguards designed to ensure that parties before the Tribunal are given the opportunity to present their cases fully and fairly, and devices which are designed to trap and expose unwary witnesses.
In summary, Matthews J’s remarks highlight that it will 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. Matthews J further emphasised that showing that the material may contradict another party’s version of events is not enough, even if credibility is “critical” to the case.
Relevantly, Matthews J also expressed disagreement with the general assumption that a witness would “lie” and “temper their evidence” if they had knowledge of the material. As I outlined above, a similar submission was made by the Respondent in these applications as a reason as to why the confidentiality order should be made. Conversely, it could be assumed that if a person is able to provide a considered response, they may be better able to present their case. Credibility will very much turn on the circumstances of the individual case. In this regard, the Tribunal frequently considers issues of credibility, which can be effectively tested during a competent cross-examination and without the witness being surprised by previously unseen material.
In the Taxpayer case, Matthews J provided some clarification at [17]-[18] concerning the remarks from Wilcox J in Hayes, referring to the circumstances having to be “exceptional” before evidence is permitted to be withheld from disclosure:
I do not understand Wilcox J in Hayes to be asserting as a general proposition that all documents to which a party would otherwise be entitled can routinely be withheld because it might alert that party to potentially adverse material and thus deprive a prospective cross-examiner of the benefit of surprise. Indeed his Honour himself described the situation in which this might occur as “exceptional”. In Hayes the acceptance of the applicant’s complaints as to her physical symptoms and disabilities was entirely dependent upon her being accepted as a witness of truth. The disabilities were not such as could be established by objective independent evidence. Accordingly, the veracity of the applicant on this matter was the central issue in the case.
This tribunal is bound by the decision in Hayes. However, I consider that that case must be seen as the high point for a party who is seeking to have otherwise relevant documents withheld from disclosure to another party. Hayes was decided in 1989. The intervening years have seen increased openness in the litigation process, together with a move away from the traditionally adversarial “ambush” method of conducting trials. This in my view is to be applauded. Little is to be gained in my experience by adopting confrontationist approach to litigation. This approach very frequently leads to an outcome which is welcome to no-one, at least to none of the parties. On the other hand, openness and cooperation can often serve to produce agreement where agreement had been thought to be impossible, and at the very least to isolate and focus upon the major issues in a case, thus containing what can sometimes be prohibitively expensive both in human and financial terms. This “cards on the table” approach has recently led the English courts to conclude that, in all but very rare personal injury cases, video films should be disclosed to plaintiffs. (Khan v Armaguard Ltd [1994] 3 All ER 545)
In summary, Matthews J described Hayes as a “high point” for a party seeking not to disclose documents from another party, and distinguished Hayes on the basis that the acceptance of the applicant’s disabilities was “entirely dependent” on her credibility and could not be “established by objective independent evidence”. However, Matthews J observed that since Hayes was decided in 1989, the authorities had progressed towards “increased openness” and a “cards on the table approach” and had moved away from the adversarial “ambush” approach for conducting trials.
The Tribunal is part of the Executive arm of government. It is not part of the Judicial arm of government like a court. The nature of Tribunal proceedings can be distinguished from court proceedings in that they are inquisitorial, and less adversarial in nature. An “ambush” approach is more consistent with adversarial proceedings in a court and less consistent with inquisitorial proceedings. In this regard, the Tribunal’s objective in s 2A of the AAT Act is relevant. It provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
A “cards on the table” approach where evidence is disclosed prior to the hearing is, in my view, more consistent with these objectives. An approach whereby a witness is surprised by material they were not previously aware of is more likely to be unfair. It may also compromise the hearing being economical, informal, and quick because of the delays that are likely to result because the hearing is likely to be adjourned so surveillance evidence can be viewed by experts being called by the applicant. Furthermore, the Tribunal making a confidentiality order so that an applicant may be caught by surprise may also compromise public trust and confidence in the decision-making of the Tribunal and may discourage future applications from being commenced or continued.
Relevant to public trust and confidence in the decision-making of the Tribunal favouring prior disclosure, in Boyes, Ipp J at [75] identified the difficulty an applicant faces when confronted with video footage they have not previously seen:
For my part, I consider that there would also be an injustice to the appellant herself in allowing the respondent to confront her by the video film, which she has not previously seen. I have previously observed that it is often difficult for parties to recall events, which took place in the past, and most people need time and assistance in putting particular events in appropriate context. That is why the rules require discovery of documents not subject to privilege to be produced before trial, even when those documents bear upon the credibility of the parties. …
In Boyes, Ipp J cited two English Court of Appeal authorities in support of a “cards on the table” approach. The first was Digby v Essex County Council [1994] PIQR P53, CA (at 57) (Digby) where Simon Brown LJ commented on the public policy reasons for disclosure:
… it is well recognised that the great majority of personal injury cases settle. That of itself is highly desirable and it must be in the public interest to encourage such an approach. The problems of acceding to a defendant's application to withhold material such as the video recording here are obvious. Such an order must inevitably give the defendant a powerful negotiation advantage. The plaintiff's advisers will be unable to value his case properly and confidently and advise him fully upon the advantages of settlement and the risks of litigation, fearful as they would always be that there was some skeleton in their client's cupboard, more troubling than he, for his part, was prepared to recognise. That is one of the countervailing considerations in favour of a policy of general disclosure. But in my judgment, even with regard to those personal injury claims, public policy generally commands a practice of cards on the table.
Ipp J also cited Khan v Armaguard Ltd [1994] 3 All ER 545 (at 1211) where Rose LJ (with whom Steyn LJ and Sir Thomas Bingham MR agreed) expressed a preference for a “cards on the table” approach, even when it is alleged the complainant is being dishonest about the existence or extent of their injuries:
The ‘cards on the table’ approach which now operates in my view requires that it should be very rare indeed in a personal injury case for an order for non-disclosure of a video film to be made. That in my judgment is an approach which is consistent with the tenor of the judgments of Sir Thomas Bingham MR and Simon Brown LJ in Digby’s case [Digby v Essex County Council [1994] PIQR P53, CA] it is, as it seems to me, in the interests of the parties, the legal aid fund, and the efficient dispatch of business by the courts, that cases should be disposed of by settlement at an early stage. Almost always, in my view, this should mean that disclosure of video films of the kind presently under consideration should be made, even in cases where the defendants' case is that the plaintiff is a malingerer.
It seems to me that the fundamental point at which [counsel for the respondents – the defendants in the action] breaks down is this. He submits that it is only in cases where there is clear film evidence to support malingering and lack of bona fides that disclosure should not take place: but it is in precisely those cases that the possibility of the plaintiff trimming his evidence is most remote.
Ipp J continued to state, at [68]:
I agree entirely with these observations. Where a plaintiff is malingering and has feigned or contrived his symptoms, pleaded them in detail and told the expert witnesses about them, then “the possibility of the plaintiff trimming his evidence is most remote”. Any cross-examiner worthy of the art will expose lying in such a case. That is what the adversarial system is all about.
Although Tribunal proceedings are better characterised as inquisitorial rather than adversarial, an applicant will be subject to cross-examination to test the veracity of their evidence. As I have mentioned above, the Respondent in these proceedings would not be denied the opportunity to test the Applicant’s credibility in cross-examination because there is evidence concerning inconsistent statements and a lack of disclosure of his injuries in pre-employment screening forms that could be put to him during cross-examination.
A more recent authority favouring disclosure of surveillance footage is Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396 (Tuimaseve). The statutory context differs from Mr King’s applications because Tuimaseve was a Migration case. Tuimasave was an appeal from a decision made by the Tribunal. The Tribunal affirmed the decision of a delegate of the Minister not to revoke the cancellation of the applicant’s visa. At the Tribunal proceedings, the applicant gave evidence about an incident he was involved in whilst in immigration detention. During cross-examination, the Minister’s legal representative sought to tender a DVD of CCTV footage of the incident which had not been lodged with the Tribunal or provided to the applicant prior to the hearing. The Tribunal granted an adjournment to enable the applicant and his counsel to view the CCTV footage, and the Tribunal stated that it was not accepting the tender of the evidence at that stage. When the hearing resumed several weeks later, the Tribunal decided to put the DVD into evidence as well as a statement from the applicant which sought to explain some inconsistencies between the CCTV footage and his previous evidence to the Tribunal. The hearing then resumed with further cross-examination, re-examination, and some questions from the Tribunal about the CCTV footage. During closing submissions, the Minister challenged the applicant’s credit based on the CCTV footage.
The applicant appealed the Tribunal’s decision to the Federal Court. One of the grounds of appeal was whether the decision of the Tribunal was affected by jurisdictional error, because the Tribunal had allowed the Minister to introduce the DVD of the CCTV footage which was procedurally unfair to the applicant. Moshinsky J held that the Tribunal’s decision to admit the DVD of the CCTV footage into evidence resulted in a denial of procedural fairness to the applicant. This was despite the Tribunal adjourning the proceedings so the applicant and his legal representatives could view the CCTV footage and prepare a statement. Moshinsky J stated at [81]-[82]:
In the circumstances, the introduction of the CCTV footage into evidence after the applicant had completed his evidence-in-chief and after he had been cross-examined on the topic caused practical injustice to the applicant. The applicant and his counsel were taken by surprise. They were not aware that the CCTV footage was available. (The fact that it is mentioned in the Serco Report is not inconsistent with this.) And they were not aware that the Minister would be relying on it. Had the DVD been provided before the hearing (as it should have been), the applicant would have been able to refresh his memory of the relevant events before giving evidence. It is very likely that he would have presented his case differently in these circumstances.
It is important to note the way in which the Minister’s solicitor sought to rely on the DVD. As noted above, the DVD was sought to be used to impugn the applicant’s credit. This potentially affected the applicant’s case generally. Thus, not only did the Minister fail to comply with the obligation to provide a copy of the DVD to the applicant before the hearing, he sought to take advantage of his own non-compliance. The proceeding before the Tribunal required an assessment, potentially finely balanced, of the risk that the applicant posed to the Australian community. In these circumstances, and given the case presented by the applicant (which included calling a number of character witnesses), matters going to the applicant’s credit potentially affected the outcome of the review.
Relevantly, in Tuimaseve, Moshinsky J (at para [78]) made the following remarks distinguishing Hayes and Bessey and referring to the judgment of Flick J in Morton v Colonial Life Assurance Society Limited [2013] FCA 681 (Morton):
The Tribunal relied on the line of authorities, commencing with Hayes and including Bessey, concerning the use of video surveillance evidence during cross-examination. But in my view, that line of authorities was inapplicable. In Hayes, the Australian Postal Commission sought to confront the applicant during cross-examination with film of her activities that had been taken in the period during which she alleged she was suffering from injuries. The Tribunal directed that the film be shown to the applicant at the beginning of her evidence-in-chief. It was held by Wilcox J that the direction given by the Tribunal denied the Commission procedural fairness because it so fettered the proposed cross-examination of the applicant that her evidence could not be tested. At 326-327, Wilcox J referred to a category of case involving a dispute as to the existence of a physical disability, being a disability whose existence or otherwise could not be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant’s account of the symptoms was likely to be critical. Both Hayes and Bessey were such cases. The present case is not. Further, in Morton, Flick J (at [28]) approved the proposition that the situations in which evidence could be withheld from another party would be “rare indeed” and that it “would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party’s version, even accepting that the credibility of that other party was critical to the case”.
After reviewing the authorities, I accept that the overall trend is a move towards a “cards on the table” approach which favours disclosure. However, 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.

With respect to Mr King’s applications, I am not satisfied that the existence of, or any incapacity caused by his claimed injuries, cannot be established by objective medical evidence. Further, because there is objective evidence, any acceptance of the Applicant’s injuries and the effects of those injuries is not entirely dependent on his being accepted as a witness of credit. I observe that the parties have filed substantial medical evidence including medical reports (from six medical experts who are being called to give evidence), as well as reports from other medical practitioners and medical records. The experts the Applicant proposed to call at the hearing were a consultant neurologist, a general practitioner in occupational medicine and a consultant psychiatrist. The Respondent proposed to call an orthopaedic spinal surgeon, a psychiatrist, and a neurosurgeon to give evidence at the hearing. Given this medical evidence, which is not insubstantial, I am not satisfied that the applications are “largely dependent upon an assessment of [the Applicant’s] credit”.
That is not to say that credibility is not relevant. However, as the Respondent has submitted, there is other evidence concerning the Applicant’s credibility before the Tribunal including a failure to disclose previous injuries or workers’ compensation claims on two occasions.
With respect to the Self-reporting Submission, it may be an over-simplification to say that medical professionals would have accepted without question the self-reported symptoms of the Applicant. Whether they did so is something that should be put to those expert witnesses at the hearing.
At the interlocutory hearing on 9 February 2024, Mr Snell submitted that in Morton, Flick J permitted the respondent to conduct their case in such a way as the Respondent is seeking to do in these proceedings. More specifically, Flick J stated, at [33], that “orders should be made preserving to Colonial Mutual the forensic advantage of presenting to Mr Morton certain documents for the first time in cross-examination”. I note that Flick J, at [34], stated that the basis for making the order was:
The making of such an order, it is respectfully concluded, is warranted when consideration is given to:
·the nature of the claim being made, namely a claim to personal injury and disability, being a claim inherently within the sole ability of Mr Morton to present for medical examination and a claim difficult to otherwise objectively verify;
·the fact that the credibility of Mr Morton is expected to be a central issue to be resolved in the ultimate hearing;
·the comparative inability to otherwise effectively test the claims being advanced by Mr Morton; and
·the fact that the affidavit material of Ms Hanlon provides a basis for concluding that a distinct possibility exists that Mr Morton may well “tailor his evidence” if he is given advance notice of the surveillance material.
I am not of the opinion that the same conclusions could be reached with respect to Mr King’s applications. The requirements of procedural fairness, and whether a confidentiality order is warranted, will depend on the circumstances of the individual case. The current applications do not turn on the sole issue of credibility. It may be a factor, but there is other medical evidence, including evidence from six expert medical practitioners being called at the hearing, other medical reports, contemporaneous medical records, and diagnostic radiology reports that provide some objective verification. The Respondent can test Mr King’s claims and credibility in cross-examination, including his failure to disclose prior compensation claims and injuries in previous pre-employment screening forms.
The Respondent also relied upon Comcare v Maganga [2008] FCA 285 (Maganga). Maganga was another appeal from a Tribunal decision made under the SRC Act. In that case, the issue of credit was the main issue in the proceedings. The issue was whether the Tribunal denied Comcare procedural fairness by refusing to give leave to Comcare to inspect summonsed documents which related to a previous injury. The Court held that the Tribunal’s refusal to give Comcare access to the summonsed documents potentially denied Comcare the opportunity to cross-examine effectively. The Court also held at [39] that the documents were “prima facie, relevant to the proceedings” and that “there was a reasonable possibility they could have assisted in the resolution of issues in the proceedings”. Whilst I understand the submission the Respondent was making about procedural fairness, the circumstances of Maganga differ from those in the current application. That is because Maganga concerns access to summonsed documents in circumstances where the main issue was credit.
Returning to Mr King’s applications, I am not satisfied that this is one of those exceptional or rare occasions contemplated in the applicable case law. In this regard I note that para [9.6] of the Lodgement of Documents Practice Direction provides that: “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”. Further, in addition to stating that there must be a persuasive reason to make the confidentiality order, the General Practice Direction, at [4.47] states: “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”.
The sole (or at the very least the predominant purpose) stated in correspondence and submissions from the Respondent as to why the confidentiality order was required, was so that the Respondent could reserve for itself the option of using the Surveillance Evidence to test the Applicant’s credibility under cross-examination. I note the Respondent’s submission that they are seeking to show “a pattern of conduct” by the Applicant, but nevertheless it is a pattern of dishonest or less than frank conduct that is relevant to credibility. Regardless of the description, the issue of the Applicant’s credibility remains the primary purpose for the Respondent seeking the confidentiality order. Although the Surveillance Evidence may contradict the Applicant’s version of events, that is not enough for me to make the confidentiality order. As I have mentioned above, there is also other evidence of credibility, and of a pattern of conduct, that the Respondent can put to the Applicant during cross-examination.
Overall, I am not satisfied that the Respondent would be denied procedural fairness if they were not granted the confidentiality order. On balance, it is more likely that the Applicant would be denied a fair opportunity to present his case if the confidentiality order was made.
I am therefore not of the opinion that there was a persuasive reason in the circumstances of the case which required me to make the order (see [4.47] of the General Practice Direction).
Those are the reasons for my refusal to grant the confidentiality order under s 35(4) of the AAT Act.
LEAVE TO RELY ON THE SURVEILLANCE EVIDENCE
At the ex-parte hearing I did not decide whether leave should be granted to the Respondent to rely on the Surveillance Evidence because both parties had not been able to make submissions on that issue.
Following the Tribunal’s General Practice Direction, and Lodgement of Documents Practice Direction, leave is required before the Respondent can rely upon the Surveillance Evidence because the Respondent has sought to rely on the materials less than 28 days before the commencement of the substantive hearing.
Specifically, the Tribunal’s General Practice Direction provides at [4.45]-[4.46]:
Subject to any other direction or order we may make, if you or the decision-maker intend to rely on video surveillance material at the hearing and that material has not already been lodged with us and given to any other party, it must be lodged with us and given to any other party at least 28 days before the day on which the hearing is listed to commence.
If video surveillance material has not been lodged with us and any other party prior to the hearing in accordance with this Direction, or such other direction or order that we may make, you or the decision-maker may not rely on the material as evidence in the application without the leave of the AAT.
Further, the Tribunal’s Lodgement of Documents Practice Direction provides at [9.4]-[9.5]:
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.
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.
The Tribunal’s General Practice Direction and Lodgement of Documents Practice Direction should not be applied inflexibly, and there may be some circumstances where leave should be granted, depending on the individual circumstances of the case. They do, however, exist to provide for the efficient case management of applications through the Tribunal, and to provide clarification about procedural issues that may arise, consistent with the Tribunal’s objective in s 2A of the AAT Act.
On 9 February 2024 at the interlocutory hearing, I heard from both parties on the issue of leave.
Mr Snell submitted that I should grant leave for the Respondent to rely on the Surveillance Evidence for the following reasons:
·The Surveillance Evidence is relevant and goes to a fact in issue, that is, whether the Applicant suffers from the claimed back condition and psychological issue.
·Those conditions cannot be ascertained with reference to objective evidence and the evidence of experts depended on the history given to them by the Applicants.
·The circumstances in which the Surveillance Evidence came into existence are circumstances to which legal professional privilege attracted.
·The Surveillance Evidence is material and will assist the Tribunal to reach the correct or preferable decision.
Mr Grey for the Applicant submitted that leave should be refused because:
·The provision of leave is dependent on the evidence being filed with the Tribunal earlier than 28 days before the day on which the hearing is listed to commence.
·At the point where the Respondent saw that the Surveillance Evidence was inconsistent with the medical evidence, the Respondent should have applied to the Tribunal for a confidentiality order earlier, and if they had done so they would not have needed leave.
·It was not clear why medical reports regarding the surveillance material were not sought by the Respondent at an earlier stage.
·There would be prejudice to the Applicant because the Applicant’s doctors would not have sufficient time to digest the Surveillance Evidence and to present supplementary reports commenting on that evidence. This was bound to cause the proceedings to be delayed.
·Mr Grey referred to the Surveillance Evidence being “like an invisible sword of Damocles” being held over the Applicant. This was a reference to the following passage from Ipp J’s judgment in Boyes, at [82]-[83], where His Honour observed:
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.
There is merit in this last submission. I note that in a letter to the Tribunal dated 8 February 2024 Mr Snell stated that it was “the Respondent’s position that it must be given the opportunity to hear the Applicant’s evidence in-chief and ask some questions of the Applicant in cross-examination before it decides whether and how it will use those materials”. That is the type of “sword of Damocles” situation that Ipp J was referring to in Boyes.
The specific timeline from Mr Snell’s affidavit is as follows. I have also included when a relevant direction was made and when listing notices for the hearing were sent:
·Mr Snell, acting on instructions from his client, arranged for surveillance of the Applicant in around mid-2022 through a private investigation firm. That firm produced a report dated 21 September 2022.
·On 28 April 2023, Mr Snell requested a supplementary report from Dr Ghoshal who produced a supplementary report dated 25 May 2023.
·A direction made by the Conference Registrar dated 29 May 2023 which specified when the parties were to file a Statement of Facts, Issues and Contentions, and any further evidence upon which they intended to rely at the hearing stated that the Respondent must do so by 1 August 2023.
·Mr Snell arranged for the private investigation firm to conduct more surveillance on 9, 10 and 11 August 2023.
·Mr Snell arranged for the Applicant to be re-examined by Dr Ghoshal on 9 October 2023.
·Listing notices were sent to the parties in November 2023 for the substantive hearing in February 2024.
·On 20 December 2023 Mr Snell requested that Dr Ghoshal review the surveillance footage obtained in August 2023.
·Mr Snell followed up receipt of the report on 10 January 2024 and 23 January 2024, and received the report on 24 January 2024.
·The Tribunal was made aware of the existence of any Surveillance Evidence on 2 February 2024 when Mr Snell requested an urgent ex-parte hearing.
I agree with the Applicant’s submissions that leave should be refused. The Respondent did not apply for leave within the 28 day period before the commencement of the hearing. The Respondent has had a substantial amount of time since the applications were first lodged in the Tribunal and has been given ample opportunity to collect and lodge evidence. It was clear from the Direction made by the Conference Registrar on 29 May 2023 that the Respondent had to lodge any evidence upon which they wished to rely on at the hearing on or before 1 August 2023. The Respondent did not request an extension. The Respondent had a surveillance report concerning the Applicant on or around 21 September 2022. They also had a report from Dr Ghoshal dated 25 May 2023 commenting on that material, which raised concerns relevant to the Applicant’s credibility. Nevertheless, a week after the Respondent was directed to lodge any evidence they wished to rely upon at the hearing, the Respondent arranged further surveillance of the Applicant. That footage was not given to Dr Ghoshal until 20 December 2023, and Dr Ghoshal did not produce a supplementary report until 24 January 2024.
At both interlocutory hearings, I asked the Respondent about the reason for the delay in bringing the existence of the Surveillance Evidence to the Tribunal’s attention. As I understood the submissions, it was on (or just after) 24 January 2024 when Mr Snell’s office received a further supplementary report from Dr Ghoshal that the Respondent decided that it wanted to rely on the Surveillance Evidence. I understand there was a delay between Mr Snell requesting on 20 December 2023 that Dr Ghoshal review surveillance footage obtained in August 2023, and Dr Ghoshal delivering the report on 24 January 2024. However, in my view, when the timeline is reviewed, there were far earlier opportunities for the Respondent to decide whether they wanted to rely upon the Surveillance Evidence and to approach the Tribunal to make a confidentiality order. Instead, the Respondent approached the Tribunal six business days before the commencement of the hearing, which required an application for leave. The position that the Respondent now finds themselves in is due to the Respondent’s own choices, and specifically is due to the Respondent’s delay in making forensic choices about the evidence they wanted to rely upon.
I also agree that there is likely to be prejudice to the Applicant if I gave the Respondent leave to choose whether to use the Surveillance Evidence in cross examination. At the ex-parte hearing, counsel for the Respondent, Mr Seymour, accepted that if I were to grant the requested leave, that the Applicant would likely apply for an adjournment. He also accepted that I would not, as a matter of procedural fairness, have much choice but to grant the adjournment so that the Applicant’s medical witnesses could review and respond to the Surveillance Evidence. There is also prejudice to the Applicant, as was referred to by Ipp J in Boyes, in that the Surveillance Evidence would be held over the Applicant who will not know whether or how those materials might be used, or what they contain. In that regard, the Applicant’s ability to explain himself may be compromised by the element of surprise which raises the possibility that the Surveillance Evidence may not assist the Tribunal to reach the correct or preferable decision.
At the ex-parte hearing when I raised the issue of leave, the Respondent also submitted that their ability to rely on the evidence of Dr Ghoshal, to whom they had shown the surveillance footage and who had produced two supplementary reports after viewing the material, would be compromised if they were not permitted to rely upon the Surveillance Evidence. However, the Respondent chose to seek those supplementary reports from Dr Ghoshal and the position that the Respondent now finds themselves in is due to their own choice to do so in circumstances where they were likely to require leave to rely on that evidence.
As I have refused the Respondent leave to rely upon the Surveillance Evidence, I do not have to decide whether it is subject to legal professional privilege in accordance with the relevant authorities including Esso Australia Resources v Commissioner of Taxation [1999] HCA 67. However, a claim of legal professional privilege did not prevent the Respondent 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, especially when the Tribunal’s General Practice Direction and Lodgement of Documents Practice Direction make that timeframe clear.

Overall, I am not satisfied that I should exercise discretion to give the Respondent leave to rely upon the Surveillance Evidence.
CONCLUSION
Above, I have outlined my reasons for making the two orders refusing to grant a confidentiality order under s 35(4) of the AAT Act (on 7 and 9 February 2024) and for making the order that leave should not be granted to the Respondent to rely on the Surveillance Evidence (on 9 February 2024).
Subsequently, on Friday 9 February 2024 at 9.24pm, Mr Snell emailed the Tribunal to “indicate to the Tribunal that [the Respondent] is not in a position to proceed at the commencement of the hearing on 12 February 2024 and that it will seek judicial review of the Tribunal’s decision”.
In an email dated Monday 12 February 2024 at 1.49am, the Applicant stated that “The Applicant does not oppose the Respondent’s request to adjourn the hearing of this matter”.
Consequently, my Associate sent the following correspondence to the parties on Monday 12 February 2024 at 10:15am:
Dear Parties,
We refer to correspondence from Mr Snell dated Friday 9 February 2024 at 9.24pm stating that the Respondent is not in a position to proceed with the hearing due to the Tribunal’s refusal to grant the Respondent leave to rely on the surveillance and related material on 9 February 2024, and indicating an intention to seek judicial review.
We also refer to Mr Abouchrouche’s email dated Monday 12 February 2024 at 1.49am indicating that the Applicant does not oppose the Respondent’s request to adjourn the hearing of this matter.
In light of these developments, the Tribunal proposes to make the following directions:
1. That the hearing listed for 12 February 2024 to 16 February 2024 is vacated.
2. On or before 23 February 2024 the parties are to confer and provide an update to the Tribunal, including confirmation as to whether a further telephone directions hearing is required, and/or whether any further directions are required to progress the applications.
Prompt confirmation from the parties would be appreciated so the Tribunal can issue the directions.
Yours sincerely
After confirmation was received from both parties indicating they were satisfied with the proposed directions, my Associate sent a separate email at 1:35pm which attached the following direction:
The Tribunal DIRECTS:
1. The hearing listed for 12 February 2024 to 16 February 2024 is vacated.
2. On or before 23 February 2024 the parties are to confer and provide an update to the Tribunal, including confirmation as to whether a further telephone directions hearing is required, and/or whether any further directions are required to progress the applications.
As I indicated above, I am mindful that Mr King filed his applications approximately two years ago and of the Tribunal’s objective in s 2A of the AAT Act which includes, amongst other things, that the Tribunal should provide a mechanism of review that is “fair, just, economical, informal and quick”. The preparation of these reasons will hopefully assist with the timely resolution of these interlocutory issues and the progress of the applications to a final hearing.
................[Sgd]..........................................
Associate
Dated: 20 February 2024

Date of ex-parte hearing:

Date of interlocutory hearing:

Representative for the Respondent at ex-parte hearing:

6 February 2024

9 February 2024

Mr M Seymour instructed by Mr M Snell of McInnes Wilson Lawyers

Representative for the Applicant at interlocutory hearing: Mr L Grey instructed by Mr J Abouchrouche of LHD Lawyers

Representative for the Respondent at interlocutory hearing:

Mr M Snell of McInnes Wilson Lawyers