King and K & S Freighters Pty Limited (Compensation)

The matter before the Administrative Appeals Tribunal (AAT) concerned an application by the Respondent, K & S Freighters Pty Limited, for a confidentiality order under s 35(4) of the *Administrative Appeals Tribunal Act 1975* (Cth) regarding video surveillance and associated materials. The Applicant, King, was not present at the ex-parte hearing where this application was considered, having been unaware of the existence of the surveillance evidence. The Respondent sought to withhold this evidence until after the Applicant's cross-examination, arguing it was necessary to prevent the Applicant from tailoring his evidence dishonestly.

The Tribunal was required to determine whether to grant the confidentiality order, considering principles of procedural fairness and the Respondent's stated need to conduct effective cross-examination. Additionally, the Tribunal had to consider whether to grant the Respondent leave to rely on this surveillance evidence, given that it was lodged less than 28 days before the substantive hearing, contrary to the Tribunal's practice directions.

The Tribunal refused to grant the confidentiality order. It noted that the Respondent's application was made only six business days before the substantive hearing, and the Applicant had no prior knowledge of the evidence. The Tribunal distinguished this case from precedents where confidentiality orders had been granted, indicating a trend towards a "cards on the table" approach in proceedings. Furthermore, the Tribunal refused to grant the Respondent leave to rely on the surveillance evidence due to its lateness, noting that the Respondent had obtained the material significantly earlier, including reports from mid-2022 and May 2023, yet only sought to rely on it shortly before the hearing. The Tribunal considered the timeline of events, including further surveillance arranged after a direction for the Respondent to file evidence by August 2023, as relevant to the refusal of leave.