JUDGMENT OF: The Honourable Auxiliary Justice LT Olsson

Judicial determination - Videotape of activities of worker taken in part prior to and in part after completion of arbitration - Existence of videotape never discovered by claims agent - No cross-examination of worker at arbitration based on videotape - Existence first disclosed during cross-examination at hearing on the merits - Application to exclude videotape and also cross-examination based on it - Deliberate decision by claims agent not to make discovery on basis that it considered that it was not under duty to do so - Whether SCR 58.07(4) relieved claims agent from discovery of videotape - Whether videotape discoverable - Consequences of failure to make discovery - Nature and extent of discretions of Tribunal having regard to default - Discussion of principles established by published authorities - Pre-arbitration footage excluded - WCTR 4, SCR 58.01 - 58.09.

The Smith's Snack Food Company Ltd v Zienkiewicz [2002] SAWCT 48

Treleaven v WorkCover Corporation [1998] SAWCT 17

Monash v State of South Australia [1998] SAWCT 98

Raschella v Duggan (1967) 52 LSJS 241

Lanzon v State Transport Authority (1985) 38 SASR 321

Cooke v Australian National Railways (1985) 39 SASR 146

Southern Cross Exploration NL and Others v Fire & All Risks Insurance Co Ltd and Others (1985) 2 NSWLR 340

Austrust Pty Ltd v Astley and Others [1993] SASC 3969; (1993) 60 SASR 354

Workers Rehabilitation and Compensation Corporation v York Civil (1997) Print 22/1997

Mazinski v Bakka (1978) 20 SASR 350

Miller v Miller (1978) 141 CLR 119

Angelin v Security and General Insurance Co Limited (1984) 37 SASR 254

Pearce v Button (1985) 60 ALR 537

Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49

Southern Equities Corporation Ltd (in liq) and Others v Bond and Others (No 2) [2001] SASC 70; (2001) 78 SASR 554

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Duke Group Ltd (in liq) v Pilmer and Others (1994) 63 SASR 364

BHP Pty Co Ltd v Mason and Jennings (1996/1997) 67 SASR 456

Treleavan v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Ridge Park Nursing Home) JD59/1998

Robbins v Harbord [1994] SASC 4571; (1994) 62 SASR 229

R v Musolino [2003] SASC 203

1 In this matter the parties are in dispute as to whether the worker, Mrs Anastazia Bilac, is entitled to income maintenance payments in respect of any period from after about 23 March 2001. At the hearing it rapidly became apparent, for reasons upon which I shall dilate in due course, that the parties were by no means ad idem as to the definition of the dispute presently arising for resolution. However, in essence, the primary question is whether, on the evidence, the claims agent, Allianz Australia Workers Compensation (SA) Pty Ltd ("Allianz"), was entitled to discontinue income maintenance payments to the worker on the basis that she was, relevantly, no longer incapacitated for work as at the date of discontinuance.

2 These proceedings came before me for rehearing and judicial determination following an earlier arbitration pursuant to Div 5 of Pt 6A of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). That arbitration followed a conciliation process in mid-September 2001. It was conducted on 6 December 2001 and a written decision published on 17 January 2002. The worker was dissatisfied with the result of the arbitration and disputes the arbitrator's determination.

3 The hearing before me commenced on 19 June 2003. Much of that day was occupied in the examination and cross-examination of the worker. Late in the day Mr Possingham, counsel for Allianz, having already cross-examined the worker at some length, intimated that he wished to put a videotape of activities of the worker to her and cross examine her on its content. I assume that it was his ultimate intention to prove the content of the videotape and tender it as part of the Allianz case.

4 I take the purpose of the proposed cross examination to be to impugn the credit of the worker and to constitute a basis for suggesting that, at the times when the tape footage was taken, she was acting in a manner inconsistent with the level of disability now testified to by her. It is said that segments of the tape, totalling just over 10 minutes, were recorded on 30 October 2001 and 5 and 14 November 2001 respectively. Further segments, totalling just over 44 minutes, were recorded on 26 March 2002 and 1 and 2 April 2002 respectively.

5 It is common ground that the existence of the videotape footage has never been discovered by Allianz. Moreover, insofar as segments of it existed prior to the conclusion of the arbitration, no reference was made to it in the course of that proceeding. Although the worker was cross-examined when she gave evidence before the arbitrator, it was never put to her that her assertions as to the nature and level of her incapacity were false. Mr Possingham says, from the bar table, that this is because those segments contained nothing of probative value.

6 When Mr Possingham sought to use the video material, Mr Saies, counsel for the worker, strenuously objected to that course, or the admission of the videotape. Various facets were canvassed before me, but, in essence, it was asserted that the course of conduct of Allianz amounted to an abuse of process and that, in any event, the material in question was not admissible under the Act. Alternatively, I was invited to reject the evidence in question, having regard to the fact that a deliberate decision had been taken not to discover it. It was also contended that, quite apart from the foregoing considerations, the content of the videotape was irrelevant, because it related to periods of time long after the critical date of 23 March 2001, when the income maintenance payments were terminated.

7 Having heard full argument, I reserved my decision as to the issues raised. These reasons record my conclusions concerning the matters debated before me.

8 In order to appreciate the contentions advanced by the parties it is first necessary to rehearse at least an outline of the relevant factual background.

9 The worker is a married woman aged 50 years. She was born in Croatia and migrated from Europe to Australia (with her mother and sister) at about the age of 15. She speaks and reads English quite well, but has only a limited ability to write in that language.

10 The worker married at about the age of 17. Thereafter, she had a number of relatively unskilled forms of employment, interspersed with periods at home associated with the birth and upbringing of her three children. She obtained employment as a trainee with Silver Fleece Knitting Mills Pty Ltd ("Silver Fleece") in about 1994. After some 12 months, she was promoted to the position of trained sewing machinist. She normally worked an eight-hour shift (with very short morning and lunch breaks), bent forward over an industrial sewing machine and feeding material through it with repetitive hand movements. At times she got up to procure or move material, but this seems to have been relatively infrequent.

11 The worker says that, from about mid 1997, the constant movement of her hands caused them to become tired and sore. She particularly noticed that, after return to home at the end of the day, her hands would be swollen and sore. The pain steadily increased in intensity to the point that, by mid 1998, it would cause her to wake up during the night.

12 In late July 1998 the worker sought and obtained permission to work for four days per week instead of five. She took this initiative in an attempt to ameliorate her increasing symptoms. That arrangement continued until she was eventually certified unfit for work on 16 November 1998. However, the pain and discomfort continued. This was, she said, accompanied by developing pain in the right elbow and discomfort in the cervical region.

13 The worker consulted Dr Joy Bryant, a general practitioner. The documents indicate that the first consultation was on 23 October 1998, on which date the doctor issued a medical certificate noting:-

14 The certificate did not indicate unfitness for work, but stated that there should be a neurological assessment.

15 On 29 October 1998 Dr Bryant referred the worker to Professor Nigel Jones, a neurosurgeon, for assessment.

16 In the event, Professor Jones seems to have been unable to see the worker until 2 December 1998. The worker says that, in the interim, her work duties constantly aggravated her symptoms, to the point that, at night, the pain in her hands was "excruciating". Her hands would constantly be swollen and sore. In the course of her oral evidence, the worker explained that there was a general swelling of the whole of her hands and fingers, including the area of her wrists. She experienced "pins and needles" in certain of her fingers and, at times, a feeling of numbness.

17 Professor Jones, having had nerve conduction studies carried out, diagnosed bilateral carpal tunnel syndrome, the problem being worst on the right side. He advised the worker to have two successive carpal tunnel release operative procedures - one on each hand. It was his view that decompression of the two median nerves ought to abate the worker's symptoms, leaving no permanent residual disability. In a report dated 8 August 2000, he noted the existence of right lateral epicondylitis, but stated that this was outside his field of expertise and that he had not treated it.

18 Professor Jones carried out the decompression procedure on the right hand on 10 March 1999, pending which the worker was certified as totally incapacitated for work. A similar procedure was conducted on her left hand on 1 December 1999. She remained unfit for work between the two dates.

19 I pause to record that, in her report of 7 April 1999, Dr Bryant recorded that the worker had initially presented to her with "neck pain and swollen hands and pain over the right elbow."

20 Radiological investigations at the time noted the presence of degenerative spondylytic changes with disc narrowing at the C5-6 and C6-7 levels of the cervical spine. The doctor was of opinion that the neck symptoms were probably the product of aggravation of the degenerative situation, resulting from sitting with the neck "in a position of sustained flexion in order to do ... [the worker's] ... job".

21 Dr Bryant further noted the existence, on examination, of a right lateral epicondylitis and was also suspicious of carpal tunnel problems - hence the referral to Professor Jones.

22 The above, developing scenario formed the backdrop to the lodgement by the worker with Silver Fleece, on or about 25 November 1998, of a notice of work-related injury and an associated claim for compensation. That documentation was actually signed by the worker on the preceding day. It is quite obvious that, although some personal details were written by the worker personally in s 1 of the notice, the balance of it was written in by Dr Bryant for her.

23 Details of the notified injury were stated to be "Rt elbow both arms/pain". In response to the question "What part of the body was affected?", the doctor simply filled in "arms. Both".

24 The then claims agent for WorkCover issued a determination of the worker's claim on 22 December 1998. This, inter alia, stated that it had been determined that, "as a result of bilateral carpal tunnel & right lateral epicondylitis which was sustained on 23/10/98, you are entitled to income maintenance payments". The determination also accepted the existence of total incapacity for work at that point.

25 There was a continuing acceptance of total incapacity for work until, on 31 January 2000, Dr Bryant certified the worker fit to return to light duties after 3 February 2000. The worker did return, on very much reduced hours, four days per week.

26 It should be mentioned that the worker travelled to Croatia for a holiday and was absent from Australia from about the end of June 1999 to 19 November 1999. She did so without complying with the notice requirements imposed by s 41 of the Act. This situation came to the notice of the claims agent for WorkCover which, by letter dated 12 November 1999, suspended her weekly payments of income maintenance as from 4 October 1999.

27 Following her return to Australia, the worker lodged a notice of work-related injury and associated claim for compensation dated 13 November 1999. ie the day prior to the left hand median nerve decompression operation.

28 It is to be observed that, in such documentation, the worker described the relevant injury as being "Swollen Hands and Pain and elbow pain" in her "Hands and armes[sic]", which had first manifested itself on "3/98". Clearly she was seeking to identify the symptoms complained of on her initial presentation to Dr Bryant.

29 The response to that claim, from the claims agent for WorkCover, was a letter of determination dated 31 January 2000.

"MMI Workers Compensation (SA) Ltd makes the following further determination.

This letter is to let you know that MMI Workers Compensation (SA) Ltd, acting as claims agent on behalf of the WorkCover Corporation, have determined that, as a result of bilateral carpal tunnel & right lateral epicondylitis, which was sustained on 23/10/1998, you are entitled to income maintenance payments.

We have determined that you are totally incapacitated for work from 1/12/1999 as a result of this disability, that is, you are unable to perform any duties."

31 It will at once be noted that the determination did not, in terms, specifically relate to what was said in the worker's notice and claim. It simply picked up the terminology of the original letter of determination dated 22 December 1998. On the other hand, it was, undoubtedly, purporting to determine the claim of 30 November 1999.

32 The worker says that, at the time when she was certified fit for light duties, her hands were still swelling with physical activity and she was also experiencing a resumption of discomfort in the right elbow. By the end of the day she would again experience "pins and needles" in her fingers. She lacked strength in her grip and, from time to time, dropped objects. She stated that, as her hours were progressively increased, so also did the degree of pain and swelling in her hands become more acute.

33 She further testified that, although certain of her symptoms were ameliorated by the decompression operations, she was, nevertheless, still left with significant residual incapacitating symptoms. It is her case that pain and discomfort in her cervical region, stemming from work-related aggravations of her degeneration in that area, still persist; and that the decompression operations have not relieved the swelling of her hands on physical exertion and the incapacitating pain and discomfort stemming from them. She also relies on evidence of the impact of a secondary psychological condition, which has developed, as exacerbating and adding to the effect of her physical problems.(cf The Smith's Snack Food Company Ltd v Zienkiewicz [2002] SAWCT 48)("Zienkiewicz").

34 I understand the stance of Allianz to be that certain of these matters (particularly any questions of incapacity arising from aggravation of cervical degeneration or the impact of any psychological condition) are not presently justiciable, because they fall outside the ambit of the dispute between the parties. There has, it is said, been no relevant determination in respect of those aspects. Hence the contention between the parties as to the proper definition of the ambit of dispute.

35 The dispute now before me arises by virtue of the fact that, by determination dated 2 March 2001, Allianz has terminated income maintenance payments to the worker. It did so on the footing that she no longer sufferers any incapacity for work by virtue of bilateral carpal tunnel syndrome and right lateral epicondylitis, following recuperation from the two decompression operations. The worker disputes the propriety of such determination. She also denies that it is proper to limit the relevant dispute to those aspects alone.

36 It is against the foregoing sequence of events that the issues now debated before me have arisen.

37 A core issue that arises at this stage is as to whether Allianz is in default in not making discovery of the videotape material that it now seeks to use. There is a consequential issue as to what follows if it be found that Allianz has breached its discovery obligations.

38 A primary stance adopted by Mr Possingham was that Allianz was never under any obligation to discover, much less produce, any of the videotape material. He contended that this was so because all of the videotape material had been produced subsequently to the conciliation phase of the proceedings. Thus, he said, authorities such as Treleaven v WorkCover Corporation [1998] SAWCT 17 ("Treleaven") were not applicable and, in fact, actually established the principle that the material in question was not discoverable.

39 In the course of argument, reference was also made to Zienkiewicz and Monash v State of South Australia [1998] SAWCT 98 ("Monash").

40 In my view none of those authorities are directly determinative of the matter now before me. They essentially focus on the operation and effect of s 92 of the Act and the circumstances in which a worker will be entitled to have access to videotape material, where this is brought into existence at the point in time at which s 92 applies. With respect, I agree with Gilchrist ADP (as he then was) in Monash, where he pointed out that, once the process of conciliation has passed, s 92(1)(b) has no further operation. Accordingly, any obligation to discover and/or produce surveillance videotapes falls to be determined by reference to the general provisions of the Workers Compensation Tribunal Rules.

41 R 4 of those Rules, inter alia, specifically enlivens the provisions of SCR 58.01 to 58.09 inclusive so far as are relevant, as to obligations of discovery in relation to proceedings in this jurisdiction. It does so in the context of an introduction expressed in the following terms:-

"In any case not provided for by the Rules or by the Act, the general principles of the practice of the Supreme Court of South Australia, Part 1 of the Supreme Court Rules as in force from time to time and any relevant forms used in connection therewith, may be adopted and applied in matters before the Tribunal with such modifications as the circumstances in any particular case may render necessary. Accordingly, for example, the Supreme Court Rules concerning the following matters shall generally apply as if such rules and related forms were part of the Rules -"

43 First, it stipulates that, mutatis mutandis, the practice of the Supreme Court, as enshrined in the Supreme Court Rules, is to be generally applicable to the jurisdiction of the Tribunal in any case not specifically provided for by the Workers Compensation Tribunal Rules. That is subject to the qualification that such practice shall be applied with such modifications as the circumstances may render necessary.

44 Second, and specifically, it mandates that certain listed provisions of the Supreme Court Rules shall generally apply within the jurisdiction of the Tribunal as if the Rules referred to (and related forms) formed portion of the last mentioned Rules. Amongst the listed provisions are those contained in SCR 58.01 - 58.09. It may well be a moot question as to the extent to which the reference to "modifications" is to be taken to refer to the listed provisions, by way of contrast with the general provisions of the Supreme Court Rules.

45 SCR 58.01 imposes a general duty of discovery of all documents relating to any question in a proceeding within twenty-one days of the close of pleadings [or its equivalent in proceedings pursuant to the Act]. SCR 56.06 establishes a subsequent, continuing obligation to discover all documents of that type as soon as practicable after they come into the possession of a party. Videotapes fall within the definition of "document" for the purposes of those Rules (see SCR 5).

46 There is clear authority to the effect that all relevant documents must be discovered, notwithstanding that privilege may be claimed in respect of some of them (Raschella v Duggan (1967) 52 LSJS 241, Lanzon v State Transport Authority (1985) 38 SASR 321). As I pointed out in the latter case, the basic principle is that all documents adverted to in a party's list of documents must be described with sufficient particularity to identify them. This is so that the Court can rule on issues of privilege and order production, if privilege is not made out. But a brief reading of the express wording of SCR 58.01(1) indicates such a situation. It stipulates that, if a party claims that any document is privileged, the document is to be specified, as it is the ground of privilege asserted in respect of it.

47 The above provisions, taken in combination, render it apparent that, prima facie, it was the obligation of Allianz in this case to make discovery of the videotape material to the worker as soon as practicable after each segment of it came into existence. Mr Possingham sought to escape such a conclusion by invoking the exclusionary provisions of SCR 58.07 (4). However, they are plainly inapplicable.

48 The last mentioned sub-rule is quite explicit in its expression. It stipulates that there is no obligation to discover any investigatory film of a plaintiff "in an action claiming damages for personal injury", that is brought into existence solely for the purposes of the litigation. It is stating the obvious that the present proceedings are not of a type so described. Allianz is unable to derive any comfort from SCR 58.07(4) for present purposes.

49 In so concluding I by no means ignore the submission of Mr Possingham that, giving effect to the precept of WCTR 4 that the general principles of the practice created by the SCR should be adopted and applied with such modifications as the circumstances in any particular case may render necessary, SCR 58.07(4) should be taken to apply to the video footage in this case.

50 There are two obvious ripostes to such a proposition.

51 The first is that, on the normal construction of the introduction to WCTR 4, it, inter alia, sets out to import into the procedures of the Tribunal the specific provisions of SCR 58 in terms, leaving little scope for variation as to substance.

52 The second is that it is difficult to perceive any justification for committing major surgery on SCR 58.07(4) in the manner espoused by Mr Possingham. This is so even if the intention of the introduction is to permit modification of specifically imported rules as the circumstances of any particular case may render necessary - a construction which I do not necessarily accept.

53 In the last mentioned regard it is significant that WCTR 4 envisages modification only to the extent rendered necessary by the circumstances of a particular case. It does not contemplate a wholesale rewriting of well established principles and rules to apply to generic classes of case. It is really the latter approach that was espoused by Mr Possingham, who did not identify any features of the instant case as being so unique as to demand modification of SCR 58.07(4). In point of fact the present case and the proposed use of the video material are quite typical of many matters coming before the Tribunal.

54 The plain fact is that, had it been the intention of the drafter of WCTR 4 to apply the concept of SCR 58.07(4) to classes of generic circumstances which were clearly outside of its expressed ambit this could have simply been stated. It was not.

55 The inevitable conclusion is that Allianz is therefore plainly in breach of its obligation as to discovery of the videotape material now sought to be used and relied upon. Moreover, I glean from Mr Possingham that its failure to discover was a conscious decision not to disclose the existence of the tapes, because it or its advisers considered that it was not under a duty to make discovery of the material in question. That being so, Mr Saies urges upon me that I should exclude the videotape from evidence and not permit its use in cross-examination.

56 The approach proper to be adopted to failures to satisfy discovery obligations is to be extracted from the trilogy of cases Cooke v Australian National Railways (1985) 39 SASR 146, Southern Cross Exploration NL and Others v Fire & All Risks Insurance Co Ltd and Others (1985) 2 NSWLR 340 and Austrust Pty Ltd v Astley and Others [1993] SASC 3969; (1993) 60 SASR 354.

57 The following propositions can be extracted from those authorities:-

1 In general, a failure to make discovery of a document does not automatically result in its inadmissibility at trial. It will, normally, still be admissible provided that the other party is protected against surprise by adjournment and/or the recall of relevant witnesses in chief; and due recognition of the failure in relation to ultimate orders as to costs. (Cooke at 149)

2 The key principle is that appropriate orders should be made to prevent prejudice or injustice to the other party to whom discovery has been denied. There is a wide power to tailor orders to meet the circumstances of the case, particularly to deal with situations that constitute an abuse of process. In the case of a defaulting plaintiff this can even extend to a dismissal or stay of the proceedings in extreme cases of prejudice. (Austrust at 382 - 3)

3 In some situations, the practical impact of the failure to discover may be so profound that it may, in the relevant sense, "poison the fountain of justice" and so prejudicially affect the particular trial process that it ought to be terminated and a new trial ordered. (Southern Cross at 356 - 7)

58 In Monash, Gilchrist ADP considered that the authorities indicate that the Tribunal possesses a general discretion to exclude evidence. He cited Workers Rehabilitation and Compensation Corporation v York Civil (1997) Print 22/1997 and Mazinski v Bakka (1978) 20 SASR 350 in aid of such a proposition.

59 It is to be noted that, in those cases, the issue was whether evidence that had been obtained by unlawful means or in disregard of express statutory requirements ought to be excluded. In Bakka the Full Court expressly left open the question of the extent of any inherent powers of a court in such a situation. In York Civil Thompson DP felt that, on the authority of Miller v Miller (1978) 141 CLR 119, a general discretion did exist.

60 In my judgment in Angelin v Security and General Insurance Co Limited (1984) 37 SASR 254, I drew attention to authorities extant at that time that make the point that considerations giving rise to a general discretion to exclude evidence (particularly where they are the product of unlawful conduct or exhibit a clear non-compliance with requisite statutory conditions) simply do not directly apply in the civil jurisdiction. Thus, those decided cases which bear on the exercise of discretion in the criminal jurisdiction may be of limited assistance.

61 In Pearce v Button (1985) 60 ALR 537 at 551, Pincus J expressed the view that, despite suggestions in Cross on Evidence to the effect that a civil Court may have some general discretion to exclude at least certain types of evidence, nevertheless, there was a strong weight of authority (to which he referred) to the effect that, in civil cases, there is no discretion to exclude relevant evidence of an excessively prejudicial kind, or evidence improperly obtained.

62 That was essentially the conclusion expressed by Kirby P, as he then was, in Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49, following an extensive review of the relevant authorities.

63 Lander J also considered this issue in depth in the course of his recent judgment in Southern Equities Corporation Ltd (in liq) and Others v Bond and Others(No 2) [2001] SASC 70; (2001) 78 SASR 554 at 564 - 571. His conclusion, with which I respectfully agree, was that there is no general discretion to refuse to admit evidence that has been lawfully and regularly obtained, is relevant to a matter raised on the pleadings and is probative of the party's claim or defence.

64 He was of opinion that the only relevant discretions that do exist in the civil jurisdiction are where relevant public policy considerations, akin to the type recognised in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, arise; or where, in all of the circumstances, an admission of the evidence would result in irremedial procedural unfairness Duke Group Ltd (in liq) v Pilmer and Others (1994) 63 SASR 364 [at 378]). But, even in the case of a Bunning v Cross type situation, exclusion will only be warranted in circumstances in which there has been an abuse of court's process and the party seeks to tender the fruits of the abuse in those or other proceedings.

65 Lander J summed up the overall situation in the these terms:-

"I am inclined to the view that the Bunning v Cross discretion is available to the Court in civil proceedings for the very reason it exists in criminal proceedings and that is to protect the administration of justice.

In my opinion the Court would not sit idly by and allow its processes to be abused and then allow the person guilty of that abuse to tender the fruits of the abuse in those or other proceedings. The Court has a duty to protect itself against such abuses. It will stay proceedings where otherwise a party will not receive a fair trial, until a fair trial can occur. It will stay proceedings for all time where a party has brought proceedings for an improper or collateral purpose: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519. If the Court will exercise those powers in civil proceedings it must have the power to refuse or accept the tender of evidence obtained by reason of an abuse of process.

In my opinion, there is a residual discretion in the Court to refuse to allow the tender of otherwise admissible evidence where that admissable (sic) evidence has been obtained by abuse of the Court's processes: Mazinski v Bakka.

Not all evidence improperly or illegally obtained will be rejected. Improperly or illegally obtained evidence is not by itself inadmissible: Cleland v The Queen. If evidence has been obtained in that way and is sought to be tendered in civil proceedings, the Court has a discretion, which will be exercised having regard to the underlying policies which call for the discretion's existence, the circumstances in which the evidence was obtained and the potential prejudice to any party if the evidence is admitted or rejected.

There are, however, not the same competing public policies operating. In civil proceedings there is the public policy that all admissible evidence ought to be before the Court to allow it to arrive at the correct result. On the other hand there are the public policies in protecting the individual from unlawful and improper conduct at the hands of another and in protecting the integrity of the Court's procedures."

66 In my opinion nothing that I have said runs counter to the views expressed by Gilchrist DP in Treleaven. I took Mr Possingham to seek to draw some comfort from the use by the learned Deputy President of the word "disclosure". He took it as encompassing both the discovery and the production of video evidence said to be privileged.

67 In Treleaven the worker was aware of the existence of the relevant film footage and what was in issue was whether or not, in the particular factual circumstances, there was any obligation to produce it prior to relevant cross-examination. Gilchrist DP held that, in the circumstances before him (ie post conciliation), the situation fell to be resolved in light of what was said by Debelle J in BHP Pty Co Ltd v Mason and Jennings (1996/1997) 67 SASR 456.

68 The learned Deputy President was there using the word "disclosure" in the same sense as that word was used in s 92 of the Act and its precursor. Relevantly, this was synonymous with "production" (see s 92(2)(b), relating to "access" to the material).

69 It is to be noted that, on appeal (Treleaven v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Ridge Park Nursing Home) JD59/1998), the Full Bench pointed out that certain of the views that had been expressed by Gilchrist DP at first instance were obiter. It declined to embark on a broad review of the issues above discussed.

70 The Full Bench merely stressed the important difference between material brought into existence in relation to a respondent's role as primary decision maker exercising its statutory functions of investigating and determining claims and supporting its determinations (to which the reasoning in Robbins v Harbord [1994] SASC 4571; (1994) 62 SASR 229 is applicable) and material brought into existence for the dominant purpose of obtaining legal advice, to which the normal principles of legal professional privilege apply (see also Zienkiewicz at par 19).

71 How, then, do the principles to which I have referred bear on the matter now before me?

72 The first point to be noted is that this is not a situation in which the relevant evidentiary material was unlawfully brought into being or illegally obtained. Prima facie, it is probative evidence, lawfully obtained. As such, it is plainly admissible unless it can fairly be said that, in the circumstances, its use would constitute an abuse of the Court's processes, or its admission would result in an incurable procedural fairness of the generic nature referred to in Duke at 378.

73 The various examples in that case all related to proposed "similar fact" evidence in situations in which questions arose as to whether, in all the circumstances, it would be oppressive to permit the proposed material to be admitted and the ambit of the proceedings to be widened accordingly.

74 Mr Saies argued that, in the instant case, there was a clear situation of procedural unfairness of a different type, associated with a flagrant abuse of the process of the Tribunal. As to this he contended that:-

* this was a blatant attempt to "ambush" the worker, contrary to the spirit and plain intendment of the procedures of the Tribunal. Allianz had elected to embark on the arbitration process on a different footing and had not sought to raise the issues now attempted to be ventilated;

* the videotape material was relevant only to the collateral issue of credibility. This was so against the background that no medical evidence bearing on capacity, of which the videotapes would be supportive, had been identified or earlier relied on. What was proposed was a strategy to avoid Allianz being bound by the worker's answers in cross examination (cf the reasoning of Lander J in the judgment of the Full Court in R v Musolino [2003] SASC 203);

* the process now sought to be embarked on was a clear attempt to subvert the dispute resolution procedure erected by the Act and, at least in part, to afford Allianz an inappropriate second "bite of the cherry". It has the practical effect of rendering the statutory arbitration process well nigh pointless and seeks to develop what is a substantially different case to that espoused before the arbitrator;

* the concept of a "rehearing" by judicial determination plainly contemplates that new evidence, not produced at arbitration, will not be adduced before the Tribunal, absent good reason why it was not introduced earlier (s 94B(2)(b)(i)). Certain of the videotape material could have been so introduced and was not. The present attempt to rely on it negates the core concept of the section and constitutes an abuse of process; and

* the essential focus of the proceedings is on the situation of the worker at the date of the impugned determination and the videotape material is irrelevant to that question. The interests of justice adverted to in s 94B(2)(b)(ii) of the Act run counter to the admission of material relevant to a much later point in time.

75 There can be no doubt that the attitude and approach of Allianz in this case potentially seeks to drive a coach and four through the concepts enshrined in the legislation - given that it may genuinely have believed that the videotapes were not discoverable.

76 Be that as it may, I find it impossible to conclude that the conduct of Allianz in this case is of such a nature and degree as to justify the extreme sanction of refusing to permit the use of all of the video evidence in the manner proposed. It must be borne in mind that the bulk of it came into existence after the arbitration proceedings had concluded and no irremedial prejudice has been shown to exist in relation to that material. The worker can adequately be protected by orders as to adjournment, possible reopening of evidence in chief, the scope of re-examination and (possibly) costs.

77 It is, however, otherwise as to the video material that was extant at the time of the arbitration process and not discovered. This was a deliberate non-compliance with the Rules, albeit on the basis of legal advice. It had the practical effect of subverting the procedures erected by the Act and which are specifically directed at ensuring the fair and expeditious disposal of claims. It had the effect of creating serious procedural unfairness, in the sense that the arbitration proceedings went forward on a basis different to that now sought to be pursued and that did not place in issue the core credibility of the worker.

78 Moreover, s 94C of the Act contemplates that, absent some adequate reason why the evidence was not proffered at the time of the arbitration, it should not now be introduced, directly or indirectly. This is simply a reflection of the obvious policy of the statute that all existing relevant cards ought to be on the table to enable an effective arbitration process to take place.

79 I consider that the worker has made out a case for the exclusion of the videotape footage taken prior to the date of completion of the arbitration proceedings. I would exclude it on the basis that the deliberate failure to discover constituted an abuse of process and improper conduct which struck at the integrity of the practice and procedure of the Tribunal under both the Act and the Workers Compensation Tribunal Rules. Had the material been disclosed, there is a possibility that it may have affected the mode of conduct and outcome (either way) of the arbitration. The Tribunal ought not to lend itself to such conduct.

80 For the reasons already expressed, I hold that no case has been made out to exclude the post arbitration footage. I will, however, protect the worker against prejudice by appropriate orders as to adjournment, further evidence-in-chief, or otherwise as the developing evidentiary situation may indicate is necessary.

81 For the sake of completeness I indicate that I do not accept the contention that the post arbitration videotape is irrelevant because it focuses on a point in time well after the date of the impugned determination. I accept Mr Possingham's submission that, bearing in mind the worker's evidence as to her continuing levels of incapacity over the whole period involved, any video evidence pertinent to the question of incapacity (which may fairly be used to controvert her factual assertions) is plainly relevant, having regard to the ongoing relief sought from the Tribunal.

82 In summary, I propose to exclude so much of the videotape footage as was brought into existence prior to the date of completion of the arbitration proceedings. I dismiss the application to exclude the subsequent videotape footage, subject to the considerations above expressed.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.