South Australian Employment Tribunal Act 2014

JUDGMENT OF: Deputy President Judge BP Gilchrist

Ex parte application seeking a review of a purported decision of a Commissioner in connection with surveillance film - Whether an intimation by a Commissioner that the Commissioner will disclose the compensating authority's possession to the worker is a decision - Whether a procedural decision or direction given in connection with conciliation by a Commissioner is capable of internal review by a Presidential member - Whether on the proper construction of s 104(3)(a) of the Act a compensating is required to disclose its possession of surveillance film to the worker - Held that the fact that there has not been a formal order does not preclude a finding that there is a reviewable decision - Held that in this case the Commissioner's intimation is a decision, which if erroneously made and allowed to stand, could materially disadvantage the compensating authority - Held that directions given by a Commissioner on procedural matters can be reviewed by a Presidential member - Held that the proper construction of s 104(3)(a) of the Act is informed by the SAET Rules 2024 - Held that in conformity with the principle of construction that where a written instrument deals with a particular matter and contains a specific statement of principle the specifics prevail to the extent of any inconsistency with any general statement of principle rules 56(8) and 56(9) of the SAET Rules 2024 cover the field and prevail over other general rules relating to disclosure - Held that properly construed in light of these rules, the mandatory disclosure of the fact of the surveillance film is confined to the member of the Tribunal and that the Commissioner erred in concluding otherwise such that the decision miscarried - Held that in determining whether the compensating authority should be directed to disclose the fact of or content of the surveillance film, the Commissioner must consider the matter with the principles set out in Rule 56(8) of SAET Rules 2024 firmly in mind - Return to Work Act 2014, Workers Rehabilitation and Compensation Act 1986, South Australian Employment Tribunal Rules 2024, South Australian Employment Tribunal Act 2014, South Australian Employment Tribunal Regulations 2015.

Bilac v WorkCover/Allianz Australia (Silver Fleece Knitting Mills Pty Ltd) [2003] SAWCT 82

Evans v Friemann [1981] FCA 85 (1981) 53 FLR 229

Salerno v NCA [1997] FCA 475 (1997) 75 FCR 133

Quartuccio v SA [2013] SASC 167

Life Care Inc. v Keuning [2022] SAET 80

APC v Hayes [1989] FCA 176; (1989) 23 FCR 345

Mitsubishi Motors Australia Ltd v Warren [1999] SAWCT 88

Puckering v WorkCover Corporation/Allianz Australia Workers Compensation (SA) [2004] SAWCT 60

Emmett v RTWSA [2015] SAET 1

Peter v DECD [2019] SAET 132

Linda Monash v State of South Australia (Eastern Community Mental Health Services) [1999] SAWCT 98

Return to Work Corporation of South Australia v Dallimore [2020] SAET 77

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Skidmore v Return to Work Corporation of South Australia [2020] SAET 165.

Skidmore v Return to Work Corporation of South Australia (No 3) [2020] SAET 215

Heggblum v Return to Work Corporation of South Australia [2022] SAET 141

Templeton v Return to Work Corporation of South Australia [2023] SAET 50

Luke v Department of Primary Industries and Regions [2025] SAET 25

1. This is an application seeking a review of a purported decision of a Commissioner in connection with surveillance film. It arises in connection with proceedings in the Tribunal concerning the Return to Work Corporation of South Australia (the compensating authority) and Jane O'Donoghue.[1]
2. Ms O'Donoghue is presently a party to several disputes with the compensating authority before the Tribunal that have been referred for hearing and determination. In connection with those proceedings, the compensating authority obtained surveillance film after the referrals.
3. The significance of this is that the obligation of disclosure imposed by s 104(3) of the Return to Work Act 2014 (the RTW Act) in respect of those proceedings had passed by the time the film had been obtained. That sub-section provides as follows:

(3) When a matter is referred to a conference under section 43 of the South Australian Employment Tribunal Act 2014, each party must, in accordance with the rules of the Tribunal -

(a) disclose to the member of the Tribunal presiding over the conference the existence and nature of all evidentiary material in the party's possession relevant to the matter; and

(b) at the request of another party to the proceedings, give the party access to the relevant evidentiary material.

1. This is qualified by s 104(4) of the RTW Act, which relevantly provides that in respect of material that "is a paper, videotape, compact disc or other electronic recording of photographic material, or a report of surveillance" or if 'the disclosure of the material could prejudice the investigation of a suspected offence" a party need not give another party access to that material "if the member of the Tribunal presiding over the conference agrees".
2. The authorities make it clear that once the conciliation phase has passed, s 104(3) of the RTW Act no longer applies, and any obligation to discover and/or produce surveillance videotapes falls to be determined by reference to the provisions of the South Australian Employment Tribunal Rules 2024 (the SAET Rules 2024).[2]
3. The SAET Rules 2024 contain general rules relating to documents and disclosure. In addition to these are specific rules relating to surveillance film and evidence that might be relevant to the investigation of a suspected offence.
4. Rule 56(8) of the SAET Rules 2024 provides:

Subject to sub-rule (9), in a proceeding under the Return to Work Act 2014 a party is not required to discover or produce evidence of still or moving images of a claimant taken without their knowledge or consent (the Evidence) after the proceeding is referred to hearing and determination unless:

(a) discovery and production of the Evidence is made by consent; or

(b) the Evidence has previously been produced to a medical expert who is treating the worker; or

(c) the decision in issue in the proceeding relies on a medical opinion that is wholly or predominantly based on the Evidence; or

(d) the claimant is aware of the Evidence and seeks that it be discovered and produced and the Tribunal is satisfied that, in the interests of justice, there are good reasons that require discovery and production of the Evidence.

1. Rule 56(9) provides:

Regardless of any other sub-rule, in proceedings under the Return to Work Act 2014 where a party possesses evidentiary material, the discovery of which could prejudice the investigation of a suspected offence (the material), the party possessing the material may make an ex parte application and seek exemption from complying with section 104(3) of the Return to Work Act 2014 from the Tribunal member with conduct of the proceeding at the time.

1. The issue that arises in connection with this application concerns the compensating authority's obligations to disclose the fact of the surveillance film in connection with the current proceedings, given that they are within the conciliation phase.
2. Upon referral to conciliation, the compensating authority's lawyers sent an email to the Commissioner to whom the proceedings had been allocated, and advised that it was in possession of surveillance film. It added that it was not required to disclose the existence of the film to Ms O'Donoghue, and it sought the Commissioner's agreement pursuant to s 104(4)(a) of the RTW Act that it not be required to give Ms O'Donoghue access to the film.
3. The Commissioner's response to the email included the following:

...it is inherent in s 104(3) that each party disclose the existence of all evidentiary material to the other party. Granted (a) only references the Tribunal member but subsection (b) only makes sense if the other party is aware of the material so that it can be the subject of a request for production.

...

The respondent also submits that it is not obliged to disclose the existence of the material to the applicant and that if I did so that would amount to a decision also subject to internal review. I disagree. That is not a decision. I would not be making any direction. I would be doing something which in my view the respondent is obliged to do but has failed to do.

I therefore propose to advise the applicant of the existence of surveillance material and enquire as to whether any application is made in respect of same.

1. The Commissioner's email is the subject of the within application. The compensating authority contends that notwithstanding the Commissioner's statement that no decision or direction was being made or given, the Commissioner was in fact directing it to disclose the fact of the surveillance film to Ms O'Donoghue, and that it was therefore a decision amenable to review by a Presidential member of the Tribunal.
2. The compensating authority accepted that the Commissioner's email was not of itself a "direction" or "order". However, it submitted that this did not mean that matters regarding disclosure of the fact of the surveillance film to Ms O'Donoghue referred to in the email, did not amount to a decision capable of being reviewed under s 66(1) of the South Australian Employment Tribunal Act 2014 (the SAET Act). That provision provides that a decision of the Tribunal constituted of a Commissioner "... may, on application under the rules, be reviewed under this section".
3. It referred to the judgment of Fox ACJ in Evans v Friemann, where he said:

The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. The making of the decision might precede, by a very short, or by a long period, communication, or manifestation ...

In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it. On the other hand a decision is not the same as a conclusion; the former normally has an objective, while the latter is more commonly associated with the end result of a process of thinking without the formation of an intention concerning future conduct. It would not be possible, even if the attempt were wise, to substitute a judicial exegesis for the word the legislature has used. For present purposes at least it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons.[3] (Emphasis mine)

1. It noted that that passage was cited with approval in Salerno v NCA,[4] in which von Doussa, Drummond and Mansfield JJ held that a determination made during an investigation to raid a person's home constituted a "decision" that was reviewable under the relevant legislation. They said:

The formulation in Bond and Attorney-General v Queensland of the characteristic of finality or operative effect which a determination must have if it is to be a reviewable decision within the ADJR Act can be traced to the judgment in Evans v Friemann [1981] FCA 85; (1981) 53 FLR 229 ...

The NCA's unqualified decision to raid the appellant's home by utilising the general warrant as the basis of the power to enter, search and seize, is one which, when it is made, materially affects the legal rights of the appellant to quiet enjoyment of his home because it directs that action be taken which will have that result. Such a determination differs from other decisions to take steps in an investigation which do not involve any intrusion upon the legal rights of a person ... That the NCA decision here in question has this impact on the appellant's legal rights immediately it was made points to it having sufficient final or operative or determinative effect to qualify it as a "decision" for the purposes of the ADJR Act.[5] (Emphasis theirs)

1. It also referred to the judgment of Stanley J in Quartuccio v SA.[6] In that case, a claims officer had erroneously sent out a letter referring to a claim for compensation having been accepted under the Workers Rehabilitation and Compensation Act 1986 (the WR&C Act). Stanley J held that the letter was "conclusive evidence of the fact that a determination has been made"[7] despite an earlier finding that the evidence established that the person responsible for managing and determining the worker's claim had "... not made a decision to accept or reject the claim".[8] His Honour also concluded that:

... the object of the Act found in s 2(1)(f), "to reduce litigation and adversarial contests to the greatest possible extent", weighs against acceptance of the defendant's construction. Acceptance of the defendant's construction would lead to workers having to institute proceedings in this Court in the nature of judicial review or for declaratory relief if they found themselves in the position of the plaintiff rather than availing themselves of the dispute resolution provisions in Part 6A of the Act. I do not consider that result reflects the legislature's intention.

Accordingly, in my view, the letter of 13 September 2011 constituted the determination by the defendant of the plaintiff's claim for compensation ... By sending the letter to the plaintiff, the defendant gave the plaintiff notice in writing of the determination.[9]

1. It then referred to Life Care Inc. v Keuning,[10] in which Rossi DPJ referred to Quartuccio and stated:

In reaching this conclusion, Stanley J had regard to the WRC Act operating as a scheme for the payment of compensation benefits to workers who suffer compensable disability arising from employment, and that that the object of the WRC Act 'to reduce litigation and adversarial contests to the greatest possible extent' pointed to a construction which would facilitate the issues raised being ventilated before the Tribunal rather than the Supreme Court ...

The WRC Act contained provisions relating to the establishment of the then Workers Compensation Tribunal. The WRC Act addressed objects with respect to the operation of the workers compensation scheme and also the operation of the Tribunal. Those objects may now be found, in part in the RTW Act, and in part in the SAET Act. The overall effect is the same as s 2(1)(f) of the WRC Act. In my view, the reasoning in Mundie and Quartuccio apply equally to this Tribunal and the jurisdiction conferred by the SAET Act and, where relevant, the RTW Act.[11]

(Emphasis theirs)

1. It submitted that in this case, the Commissioner had clearly engaged in a mental process before deciding that Ms O'Donoghue was entitled to be advised of the existence of the surveillance material. It submitted that this decision amounted to something of significance that might materially affect the compensating authority's legal rights in these and the other proceedings already on foot, and that it was reasonably definite and sufficiently conclusive or final "for the time being" to result in it being reviewable under s 66(1) of the SAET Act.
2. It added that in fact, if the Commissioner were to act on the decision by advising Ms O'Donoghue about the existence of the surveillance material in the manner proposed, that may lead to the kind of "irreversible' effect referred to in APC v Hayes.[12] In that case Wilcox J stated:

... On the one hand the Court should be astute to protect parties from the expense and delay of unnecessary applications: see the comments of Deane J in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 103-104. But, on the other hand, the Court ought not to deny relief upon the merits in a case where a question of substance arises, which may be important in the disposal of the principal proceedings, particularly where the effect of refusing relief will be irreversible. The present dispute involves a short question of principle which is not only important to the resolution of the principal litigation between these parties but, as Dr Hayes has indicated, will also have ramifications for other cases. Moreover, if the Court declines on discretionary grounds to interfere, the film will be shown to Ms Barnbrooke before she gives her evidence. At that point, the possibility of counsel for the Commission cross‑ examining Ms Barnbrooke without her being aware of the content of the film will disappear. No order of this Court, upon an appeal against any decision in favour of Ms Barnbrooke, could restore that possibility. It seems to me that the argument relating to discretion ought to be rejected, and that the Court ought to consider the dispute between the parties upon its merits.[13]

(Emphasis theirs)

1. In accordance with these authorities I conclude that the fact that there has not been a formal order does not preclude me from finding that there is a reviewable decision.
2. Having regard to what the Commissioner wrote in the email, I find that a decision that the compensating authority was obliged to disclose the fact of the surveillance film to Ms O'Donoghue was made, which if erroneously made and allowed to stand, could materially disadvantage the compensating authority.[14]
3. In its submissions the compensating authority noted that s 66(1a) of the SAET Act states that the regulations may exclude or modify the application of s 66(1) insofar as it applies to "prescribed classes of decisions" under a relevant Act (subject to any provision made by a relevant Act).
4. It then referred to Regulation 4 of the South Australian Employment Tribunal Regulations 2015 (SA) (the SAET Regs), noting that it begins with the words:

For the purposes of the definition of decision in section 3(1) of the Act, a decision of the Tribunal does not include the following interlocutory directions, determinations or orders in respect of the operation of Part 5 of the Act ... [15]

(Emphasis theirs)

1. It submitted that it was notable that the "decisions" prescribed by reg 4(a)-(d) of the SAET Regs do not include a decision made by a Commissioner about surveillance material or, for that matter, any decision under rule 44(3)(k) of the SAET Rules 2024 with respect to the exchange of information, including documents, to assist to resolve a dispute or narrow the issues in dispute; rule 44(3)(l) of the SAET Rules 2024 requiring a party to comply with their obligations under s 104(3) of the RTW Act to disclose surveillance material to the Tribunal, or provide access to such evidentiary material to another party, or rule 44(1) of the SAET Rules 2024 to give such directions as are reasonably required to conduct a compulsory conciliation conference effectively.
2. It submitted that this was important, as it provided a basis to distinguish the decision of the Full Bench of the Workers Compensation Tribunal in Puckering v WorkCover Corporation/Allianz Australia Workers Compensation (SA),[16] which held that directions of a conciliation officer on procedural matters relating to the conciliation process under the WR&C Act were not amenable to appeal or review.
3. It submitted that unlike the position under the WR&C Act, a direction given by a Commissioner on procedural matters relating to the conciliation process under the RTW Act, is amenable to appeal or review. In developing this submission, the compensation authority relied upon the decisions of Emmett v RTWSA[17] and the Peter v DECD.[18]
4. Emmett concerned a direction given by a Commissioner that a worker who resided in a remote location personally attend a compulsory conciliation conference. In overturning that direction on review, Hannon DPJ expressly recognised that directions given by a Commissioner on procedural matters at conciliation, could be reviewed by a Presidential member.
5. Although Peter did not concern a procedural matter at conciliation, in holding that a decision by a Presidential member to grant a stay on an order for costs was reviewable, Rossi DPJ, with whom the other members of the court agreed, referred to Emmett. He agreed with the statement in Emmett that it was implicit that a decision by the Tribunal that was amenable to review included an interlocutory direction, determination or order unless otherwise prescribed.[19]
6. Emmett was a considered decision by Hannon DPJ that is not plainly wrong. Peter is a decision of the Full Bench. Both are binding on me.
7. Having found that the Commissioner did make a decision, and being compelled by authority to conclude that it is amenable to review, I now turn to consider whether the decision was erroneously made.
8. It is clear enough that the Commissioner's "decision" was based upon the Commissioner's understanding, that as a matter of law, the compensating authority was obliged to inform Ms O'Donoghue of the fact of the surveillance film. Was that understanding, correct?
9. In contending that it was not, the compensating authority submitted that it was important to appreciate that the obligation of disclosure prescribed by s 104(3) of the RTW Act is qualified by the expression: "in accordance with the rules of the Tribunal".
10. Noting that s 92(1)(b) of the WR&C Act contained an identical qualification, it submitted that the SAET Rules 2024 are materially different from the rules that applied when the former South Australian Workers Compensation Tribunal decided Puckering v Workcover.
11. This submission must be accepted. The difference between the respective rules and the consequences for the construction of the disclosure provisions is demonstrated in Linda Monash v State of South Australia (Eastern Community Mental Health Services).[20] In that case, it was observed that upon referral for conciliation, the compensating authority was, in accordance with rule 2(13) of the Workers Compensation Tribunal Rules (WCT Rules), obliged to file within seven days, an index of all relevant documents. It was noted that pursuant to rule 24 of the WCT Rules, the President may issue practice directions from time to time which have the force of the rules. And it noted that the President had promulgated practice direction 11, which read as follows:

The index of documents filed by a compensating authority upon referral of a matter to conciliation must include reference to any documentation pertaining to any evidence including video evidence. If a party wishes to object to another party having access to any evidentiary material, that objection should be noted in the index of documents. In such a case it will be a matter for the conciliation officer to determine the manner in which the objection will be dealt with.

(Emphasis mine)

1. It was held that the combined effect of s 92(1)(b) of the WR&C, the WCT Rules, and the practice direction, was such that a compensating authority was obliged to give notice of the existence of surveillance before the conciliation conference because documentation pertaining to that evidence had to be included in the index of documents filed by a compensating authority upon referral of the matter for conciliation.
2. In this case, the compensating authority submitted that there is no such obligation imposed by the SAET Rules 2024.
3. This submission must be accepted. Whilst it must be acknowledged that there are other rules of a general nature in the SAET Rules 2024 that deal with documents, disclosure and the like, in my opinion, in a case such as this, rules 56(8) and 56(9) of the SAET Rules 2024 cover the field. I reach this conclusion because rules 56(8) and 56(9) specifically deal with evidence of still or moving images of a claimant taken without their knowledge or consent and evidentiary material, the discovery of which, could prejudice the investigation of a suspected offence.
4. As was observed by the Full Bench in Return to Work Corporation of South Australia v Dallimore: [21]

If a written instrument contains statements of general principles or provides for general powers, those principles or powers can be relied upon to fill in gaps. But where the written instrument deals with a particular matter and contains a specific statement of principle or provides for the matter to be dealt with in a specific way, it can be assumed that the author intended to convey the expectation that in connection with that particular matter, the specifics would prevail to the extent of any inconsistency with any general statement of principle or a general conferral of power contained elsewhere in that instrument.[22]

(Emphasis mine)

1. This is in conformity the interpretative principle stated by the High Court in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[23] that a general power should not be construed as applying to the subject matter of a specific power.
2. I now turn to consider decisions of this Tribunal that have dealt with this issue.
3. In Skidmore v Return to Work Corporation of South Australia,[24] Rossi DPJ ordered that the compensating authority was not required to disclose to the worker the existence of certain surveillance evidence until further order, notwithstanding that the proceeding was still at the compulsory conciliation phase. In extending that order in Skidmore v RTWSA (No 3), Rossi DPJ stated that there was no requirement for the compensating authority to disclose to the worker the existence of certain surveillance evidence.[25]
4. This must be contrasted with Heggblum v Return to Work Corporation of South Australia.[26] In that case, Crawley DPJ held that the restrictions imposed by rule 57(6) of the SAET Rules 2022 on the Tribunal's power to order that surveillance material be "disclosed and produced" ought to be construed as only applying to an order for "production" of material as distinct from the "disclosure" required by rule 57(1) of the SAET Rules 2022. He said:

Reading the provisions of s104 and R57 together, in relation to surveillance material it appears the protocol is as follows:

1. All such material obtained up to the conciliation stage must be disclosed to the commissioner unless an exemption order is made by a Presidential member on the basis the disclosure and/or production would prejudice the investigation of a suspected offence;

2. If the material is disclosed to the commissioner, then it must be produced to the claimant unless the commissioner or a Presidential member makes an exemption order on the basis the production would prejudice the investigation of a suspected offence.

3. After conciliation, the existence of such material must be disclosed but not be produced unless an order for production is made on one or more of the grounds that:

4. the disclosure and production is by consent; or

5. the evidence has previously been produced to a medical expert who is treating the worker; or

6. the decision under review relies on a medical opinion that is wholly or predominantly based upon the evidence; or

7. the Tribunal is satisfied that, in the interests of justice, there are good reasons that justify the disclosure and production of the evidence.[27]

1. In Templeton v Return to Work Corporation of South Australia[28] Rossi DPJ addressed Heggblum, noting that the decision in Skidmore was suppressed from publication at the time the decision in Heggblum was delivered, such that the decision in Heggblum did not address Skidmore.[29] Although not expressly stated, it is clear enough what Rossi DPJ was saying: because of this deficiency, Heggblum was decided per incuriam and that he was therefore not obliged to follow it.
2. The effect of the decision in Templeton is that the SAET Rules inform that construction of s 104(3) of the RTW Act, and that the preferred and correct construction of the SAET Rules 2024, is that neither disclosure nor production of still or moving images of a worker taken without their knowledge or consent may be the subject of an order requiring such disclosure or production unless the criteria set out in rule 56(8) of the SAET Rules 2024 are met.
3. With respect, I agree with this. Because the disclosure obligation imposed by s 104(3) must be "in accordance with the rules of the Tribunal", the SAET Rules 2024 must be considered in determining that obligation. Given the primacy that must be afforded to Rule 56(8) of SAET Rules 2024, in my respectful opinion, it follows that s 104(3) of the RTW Act does not of itself, impose an obligation upon a party to disclosure of the fact of the party being in possession of the surveillance film to the other parties.
4. In my opinion, such a construction sits comfortably with the evident purpose of s 104(3). As was recently observed by the Full Bench in Luke v Department of Primary Industries and Regions:[30]

It is also known for some workers to exaggerate the extent to which an injury is causing an impairment of a particular faculty. That is why courts have consistently allowed the withholding of surveillance film until after a worker has given evidence of the extent of any impairment cause by work injury, to test the veracity of the worker's complaints.[31]

1. Limiting the obligation of disclosure of the fact of surveillance to cases where the Tribunal has ordered that disclosure, recognises that in some cases, the mere fact of disclosure of the existence of surveillance film, could substantially undermine the forensic advantage that a compensating authority might otherwise have in connection with a worker who is exaggerating the effects of a work place injury.
2. Moreover, it does no violence to the language of the provisions to construe them as meaning that mandatory disclosure of the fact of the surveillance film is confined to the member of the Tribunal and the capacity of another party to seek an order under s 104(3)(b) applies in circumstances where either the Tribunal has ordered disclosure of the fact of the party being in possession of the surveillance film, or the party has, itself, disclosed the fact of it being in possession of that film.
3. It follows that the "decision" of the Commissioner in this case was made on a misunderstanding of the legal obligations of the compensating authority as to the disclosure of the existence of surveillance film.

1. Although the Commissioner stated no decision or direction was being made or given, the effect of what the Commissioner wrote was that the compensating authority was being directed to disclose the fact of the surveillance film to Ms O'Donoghue.
2. The decision of the Full Bench of the Workers Compensation Tribunal that held that directions of a conciliation officer on procedural matters relating to the conciliation process under the WR&C Act were not amenable to appeal or review, does not apply to directions given in respect of a conciliation conducted under the RTW Act. In conformity with decisions of this Tribunal, I am compelled to conclude that such directions are amenable to review.
3. The obligation to disclose the existence of and nature of evidentiary material in connection with a conciliation conference conducted under s 104 of the RTW Act is qualified by the SAET Rules 2024, which are materially different to the rules that applied to such conferences conducted under the WR&C Act.
4. In determining how the SAET Rules 2024 qualify that obligation of disclosure, in conformity with the Anthony Hordern principle of construction, the specific instructions provided by rule 56(8) of SAET Rules 2024 prevail over any general instructions provided elsewhere in the Rules.
5. In light of this, and consistent with other decisions of the Tribunal, neither disclosure nor production of still or moving images of a worker taken without their knowledge or consent may be the subject of an order requiring such disclosure or production unless the criteria set out in rule 56(8) of the SAET Rules 2024 are met.
6. The Commissioner's direction was therefore based upon a misunderstanding of the compensating authority's legal obligations of disclosure and it must therefore be set aside.
7. The matter is remitted back to the Commissioner for further consideration in conformity with these reasons. It will be a matter for the Commissioner to decide whether the compensating authority should be directed to disclose the fact of it being in possession of the surveillance film to Ms O'Donoghue. In that event, if Ms O'Donoghue makes an application under s 104(4) of the Act, the Commissioner will need to deal with that application. In either case, the Commissioner must consider the matter with the principles set out in rule 56(8) of SAET Rules 2024 firmly in mind.
8. No doubt a matter that the Commissioner will find highly relevant to his consideration of these matters is that the disclosure of the fact of and the contents of the surveillance film will impact upon proceedings to which s 104(3) of the RTW Act does not apply.
9. Because of the confidential nature of the proceedings I restrict, until further order, disclosure of the within application and supporting affidavit and the identity of the case to which they concern, the name of the compensating authority's counsel and solicitors, the written submissions filed by the compensating authority's counsel, and the date of and the transcript of the hearing before me.

[1] This is not the worker's real name. Because of the confidential nature of the proceedings I have anonymised the name of the worker by substituting a pseudonym.

[2] Bilac v WorkCover/Allianz Australia (Silver Fleece Knitting Mills Pty Ltd) [2003] SAWCT 82 at [40].

[3] [1981] FCA 85 (1981) 53 FLR 229 at 233.

[4] [1997] FCA 475 (1997) 75 FCR 133 at 138D-F.

[6] [2013] SASC 167.

[10] [2022] SAET 80.

[12] [1989] FCA 176; (1989) 23 FCR 345.

[14] Mitsubishi Motors Australia Ltd v Warren [1999] SAWCT 88.

[16] [2004] SAWCT 60.

[17] [2015] SAET 1.

[18] [2019] SAET 132.

[20] [1999] SAWCT 98.

[21] [2020] SAET 77.

[23] [1932] HCA 9; (1932) 47 CLR 1 at 7-8.

[24] [2020] SAET 165.

[25] Skidmore v Return to Work Corporation of South Australia (No 3) [2020] SAET 215 at [9].

[26] [2022] SAET 141.

[28] [2023] SAET 50.

[30] [2025] SAET 24.