Stewart v Return to Work Corporation of South Australia & Anor [2025] SAET 61

1. The applicant worker is Diane Stewart. The compensating authority (RTW SA) and Ms Stewart's employer, Angle Vale Gardens Retirement Estate Pty Ltd, are also parties, but as with the earlier decision, the issue this decision only concerns Ms Stewart and RTW SA. The extent of the proceedings between the parties is described in the earlier decision:[1]

Ms Stewart had a fall at work on 21 November 2021. Her claim for a soft tissue injury to her right ankle was accepted on 24 December 2021. During 2022, claims for other injuries she says were sustained in the November 2021 fall were made and rejected. The injuries claimed are to: the right elbow, right hip, right wrist and right knee in case ET-22-02717; the lower digestive system in case ET-22-02719; the lower back, upper back, left hip and left knee in case ET-22-04923. The remaining proceedings concern a rejected request for a king size mattress in case ET-22-06427 and a rejected request for some aids and services in case ET-23-00717.

Submissions of the applicant

1. Ms Stewart does not accept that legal professional privilege applies to any of the video evidence. She submits that when the video evidence was provided by RTW SA to her solicitors, she had no reason to believe that the release was made by mistake.
2. Ms Stewart submits that until the issue of privilege is resolved, it would be improper for her or her solicitors "to use or have regard to the content of material over which legal professional privilege is claimed, including to the extent of addressing actions or activities as refreshed by the contents of the surveillance material."[2]
3. Ms Stewart contends that she should not be put in a position of providing an affidavit which is either less than complete, or which addresses or has regard to the content of material over which there is a concurrent claim of privilege maintained by another party. Ms Stewart contends that she should not be required to file and serve an affidavit until all issues concerning the claim of legal processional privilege and waiver have been finally resolved.

1. In its Statement of Issues and Contentions (SOIC), RTW SA has indicated that it intends to assert that the only injury sustained on 21 November 2021 was a right ankle soft tissue injury. The SOIC asserts that Ms Stewart is statute barred in this proceeding in relation to the 6 September 2022 claim seeking compensation for right elbow, right hip, right wrist and/or right knee injury from an incident which occurred on 21 November 2021. RTW SA says that date is erroneous and that the claim for those injuries is dated 6 April 2022.
2. RTW SA also asserts in its SOIC that Ms Stewart is statute barred in case ET-22-04923 in relation to a claim made on 7 June 2011 (which it says should read 7 June 2022) in relation to alleged injury to her lower back, left hip bursitis, left knee and upper back in the incident on 21 November 2021.
3. Both contentions rely upon the claims being made outside of the prescribed period outlined in section 30 of the RTW Act.
4. RTW SA contends that there has been no indication given by Ms Stewart as to how she maintains that the failure to make a claim or claims within the prescribed period is not a bar to the claim. It says that issue should not turn on access to the video surveillance footage. RTW SA maintains that Ms Stewart's approach to the proceedings seems to "require the respondent to prove or particularise its position almost to the point of being empirical prior to her having to put any evidence of statements of her case before the Tribunal."[3]
5. RTW SA contends that Ms Stewart should be required to progress the proceeding without further delay. Counsel advised that and that the further video evidence sought by Ms Stewart will not be provided. It was observed that the proceeding seeks entitlements to lump sum compensation under ss 56 and 58 of the RTW Act and is 3 years old. RTW SA submitted that as Ms Stewart has seen a large part of the video evidence and is required to be truthful about the extent of her limitations, no unfairness arises from requiring her to 'get on' with the proceeding.

1. This decision does not concern whether the video evidence Ms Stewart has not been given access to, should be provided to her. That issue has not yet arisen. The present issue is whether progressing the proceeding should await internal review by RTW SA and a potential review of that decision by the Ombudsman. Counsel for RTW SA advised that RTW SA will not release the video evidence Ms Stewart has not been provided with so there is no need to wait for the outcome of the internal review.
2. Ms Stewart did not describe the basis on which the Ombudsman may review the matter, or how that review would interact with provisions of the RTW Act, the South Australian Employment Tribunal Act 2014 (SAET Act) and the South Australian Employment Tribunal Rules 2024 (SAET Rules) concerning video surveillance evidence.
3. Section 104(3) of the RTW Act provides that when a proceeding is referred to a compulsory conference under s 43 of the SAET Act, each party is required to disclose the existence of relevant evidence to the Tribunal member conducting the conference and give access to that material to another party upon request. Section 104(4) of the RTW Act qualifies s 104(3) as it provides that the Tribunal member need not give another party access to videotape or surveillance material in their discretion or if disclosing the material could prejudice the investigation of a suspected offence.
4. Rule 56 of the SAET Rules concerns discovery. Rules 56(8)-(10) provide:

(8) 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.

(9) 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.

(10) A Tribunal member who makes an order under sub-rule (8) may make any other order considered fair and appropriate in the circumstances, including orders designed to prevent the proceeding being prolonged unduly while a suspected offence is being investigated.

1. A discretion akin to that in s 104(4) of the RTW Act has been the subject of judicial commentary. In BHP Pty Co Ltd v Mason and Anor,[4] Debelle J considered s 96(1a) of the Workers Rehabilitation and Compensation Act 1986, the statutory predecessor and analogue of s 104(3) of the RTW Act. Each provision has a requirement to disclose evidence to the Tribunal member presiding over the conference, and the ability to not disclose the existence of documents to the other party to the proceedings, if the Tribunal member so directs. In relation to the latter issue, his Honour said:[5]

With respect, I do not think it is correct to say at the decision in Hayes[6] must be seen as a high watermark or that non-production of a film is an "ambush method of conducting trials". The existence of the film must be disclosed under s 96(1a). It is a misuse of language to describe the use of a film which has been discovered but not inspected as an ambush. An ambush usually involves concealment. Disclosure is the antithesis of concealment. There are some injuries where it is very difficult to make an objective determination the extent of the injury and any associated disability. It is recognised that a useful means of determining whether there is any residual disability is to examine movements made by the person complaining of injury when that person is not conscious of the examination. If with the knowledge of the existence of a film the person filmed gives evidence exaggerating the disability occasion by his injuries, he is not ambushed. He has simply been detected in his own truthfulness, that is to say, caught in a trap of his own making instead of a trap set by his opponent.

1. In Australian Postal Commission v Hayes and Ors,[7] Wilcox J set aside an order that an applicant be shown videotape surveillance evidence depicting her movements before she commenced to give evidence in chief. His Honour said:[8]

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 "Bar News", the journal of the New South Wales Bar Association, Autumn 1988 pp 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.

1. Not only has Ms Stewart had the advantage of knowing that videotape surveillance evidence of her exists, she has viewed most of it. The passage set out from BHP v Mason is apposite here. Ms Stewart is required by oath or affirmation to tell the truth, the whole truth and nothing but the truth. If she falls into a trap by not doing that, it is a trap of her own making.
2. While the basis of a review by the Ombudsman has not been described by Ms Stewart, a perusal of the Ombudsman Act 1972 shows that there may be grounds for challenging a request to conduct a review. Section 13(3) provides:

(3) The Ombudsman must not investigate any administrative act where -

(a) the complainant is provided in relation to that administrative act with a right of appeal, reference or review to a court, tribunal, person or body under any enactment or by virtue of Her Majesty's prerogative; or

(b) the complainant had a remedy by way of legal proceedings,

unless the Ombudsman is of the opinion that it is not reasonable, in the circumstances of the case, to expect that the complainant should resort or should have resorted to that appeal, reference, review or remedy or that it is in the public interest to continue the investigation under this Act.

1. I am unable to decide whether s 13(3) of the Ombudsman Act 1972 has application to these facts as the nature and basis of any proposed review by the Ombudsman has not been described and I have not heard any submissions about the proposed review or about the ambit of s 13(3). I simply make the point that there may be a basis for the Ombudsman to decline a request to review RTW SA's refusal to release the evidence.
2. In relation to Ms Stewart's submission that it may be improper for her to have regard to the video evidence while a claim of privilege over it is maintained by RTW SA, Ms Stewart denies that privilege applies. On her case there is no impropriety to consider the video evidence. Even if the claim for privilege is maintained, it is not realistic to assume that Ms Stewart can or will disregard what she seen in the videotape evidence when preparing an evidence affidavit or giving oral evidence. While s 180(15) of the RTW Act may require that Ms Stewart to return her copy of the video evidence to RTW SA, it does not preclude her from relying upon what she has seen on the video when presenting her case.
3. I am satisfied there is no good reason to further delay this proceeding. The SAET Act provides that the Tribunal is to process applications as quickly as possible,[9] with as little formality and technicality as possible,[10] and to keep legal costs to a minimum insofar as is just and appropriate.[11] Those objectives will not be achieved by further delaying the progress of this proceeding. The request to defer making trial orders is refused. The matter is listed for telephone directions on 11 July 2025 at 10.30am at which time orders will be made and Ms Stewart will be required to present her case.

[1] Return to Work Corporation of South Australia v Stewart and Anor [2024] SAET 92 [3].

[2] Applicant's written submission dated 6 May 2025.

[3] Respondent's written submissions dated 6 May 2025 (wrongly dated 6 August 2024) [10].

[4] (1996) 67 SASR 456.

[6] Australian Postal Commission v Hayes and Ors [1989] FCA 176; (1989) 23 FCR 320.