Rose v Coles Group Limited (No2) [2025] SAET 137 (10 December 2025)

The applicant sought an order that would require the respondent to disclose to her the dates of investigator reports relating to surveillance - in earlier and similar proceedings the existence of some surveillance evidentiary material was inadvertently disclosed by the respondent to the applicant and in Rose v Coles Group Limited [2023] SAET 72 the Tribunal declined an application for further disclosure and production of the surveillance evidentiary material - in the current proceeding the respondent disclosed the existence of some surveillance evidentiary material at a compulsory conciliation conference and at the conference the applicant did not seek further particulars nor production -the respondent has claimed legal professional privilege over the investigator reports and surveillance film and that there would be a denial of natural justice and procedural fairness if it were required to disclose the dates of the investigator reports to the applicant - HELD - whilst a party was previously required to disclose the existence of relevant evidentiary material to both the former Tribunal and other parties to the proceeding under s 96(1a) of the Workers Rehabilitation and Compensation Act, s 104(3) and the Rules of the Tribunal now requires such disclosure to be made only to the member of the Tribunal presiding over the compulsory conciliation conference - it is for the member of the Tribunal to determine whether there should be disclosure to another party and whether another party should be granted access following disclosure - HELD - the Tribunal is required to afford parties to the proceedings natural justice and procedural fairness, and that major objective is also relevant to the construction and application of s 104(3) of the RTW Act - HELD - natural justice and procedural fairness, in the circumstances of this case, where the applicant's reliability and potentially her credibility will be an issue at trial, requires the Tribunal not to make directions or orders that would have the effect of preventing the respondent from being able to effectively test the applicant's case at trial and that includes being able to effectively cross-examine her - HELD - r 56(1), (2), and (8) of the Rules are to be construed in the light of r 44(3)(k) - HELD - in determining whether there should be disclosure and production of surveillance evidentiary material at a compulsory conciliation conference, a Commissioner is required to have regard to the circumstances set out in r 56(8) - HELD - the application for directions of the applicant should be dismissed.

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

Return to Work Corporation of South Australia v O'Donoghue [2025] SAET 66

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Pond v Workcover/Allianz Australia (Wunda Joinery) [2001] SAWCT 69

Return to Work Corporation of South Australia v Hill [2024] SAET 113

A direction for premature production to the plaintiff might have the effect of depriving the defendant of natural justice: Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320. I should think that there would be every justification in a case such as the present for withholding a film of the plaintiff's activities from the plaintiff until he has been cross-examined about his physical capacity and activities.[18]

(1989) 23 FCR 320

(1985) 39 SASR 410

(1999) 201 CLR 49

(1994) 62 SASR 229

(1983) 153 CLR 52