K & S Freighters Pty Ltd v King

This case came out of a workers compensation review, but the practical problem is one many businesses recognise. A party gathers surveillance footage, investigator material and expert commentary for a dispute. It wants to preserve the forensic value of that material, especially for cross-examination, but the other side says it is unfair to be confronted with important evidence at the last minute. The tribunal then has to decide what happens next.

K & S Freighters was a freight carrier authorised under the Commonwealth compensation scheme to make liability decisions about employee claims. Mr King, one of its employees, made claims arising from a truck roll-over on 24 May 2021. K & S Freighters accepted liability for some injuries but denied liability for later claimed lower back and mental health injuries. Mr King challenged those denials in the Administrative Appeals Tribunal, and the matter was listed for a five-day hearing beginning on 12 February 2024.

In preparing for that hearing, K & S Freighters had covertly surveilled Mr King in September 2022 and August 2023. It obtained video footage and private investigator reports. It also obtained several orthopaedic reports, including a supplementary report dated 18 January 2024 after the surgeon was given surveillance material and asked to comment on it.

Only days before the hearing, on 2 February 2024, K & S Freighters applied ex parte for a confidentiality order under s 35(4) of the AAT Act. It wanted to lodge the surveillance footage, associated materials and supplementary medical report with the Tribunal without disclosing them to Mr King before the hearing. The Tribunal refused that application. It then held an inter partes hearing on 9 February 2024 and refused leave for K & S Freighters to rely on the surveillance and supplementary reports at the hearing. K & S Freighters said it could not proceed, sought an adjournment, and then went to the Federal Court.

The Federal Court was not deciding whether Mr King should receive compensation. It was deciding whether the Tribunal had taken the wrong legal path when dealing with K & S Freighters' surveillance material and related reports.

K & S Freighters said the surveillance footage, investigator reports and supplementary medical reports were confidential because they were subject to legal professional privilege. It also argued that if the material had to be disclosed to Mr King before the hearing, that would undermine effective cross-examination and deny it procedural fairness.

The Tribunal approached the matter differently. It treated the issue as one of confidentiality, late disclosure and leave to rely on material that had not been lodged and provided within the timetable contemplated by the Tribunal's practice directions. The Tribunal focused heavily on fairness to Mr King and on what it described as a trend towards a 'cards on the table' approach favouring disclosure. It considered that cases justifying non-disclosure of surveillance material before hearing were likely to be exceptional or rare.

The problem, according to the Federal Court, was that the Tribunal did this without first deciding whether the material was in fact subject to legal professional privilege. That was the central issue. If the material was privileged, that could affect whether the practice directions applied in the way the Tribunal assumed, whether leave was required in the way the Tribunal thought, and how the confidentiality application should be determined.

The principal legal issues were identified by the Court in direct terms. First, was it a reviewable error to decide the s 35(4) confidentiality application on the assumption that the relevant practice directions applied to the surveillance material and medical reports whether or not they were privileged? Second, was it a reviewable error to decide that leave was required to rely on those materials irrespective of whether or not they were privileged?

The Court said yes. Feutrill J held that the question of legal professional privilege was the central issue the Tribunal was required to decide. It was necessary to decide that issue before applying s 35(4), the practice directions made under s 18B, and the principles relevant to excluding otherwise relevant evidence on the ground of late disclosure.

The judgment explains why that mattered. Legal professional privilege was described as a rule of substantive law and also as an important common law right or immunity. The Court referred to the orthodox distinction between advice privilege and litigation privilege. The extract also records that, although there was authority pointing against litigation privilege extending to Tribunal proceedings, the Court was prepared to accept, without deciding, that litigation privilege applied in the Tribunal context.

The Court then applied the usual interpretive principle that statutes are not construed as abrogating important common law rights, privileges and immunities unless Parliament makes that intention unmistakably clear. That principle informed the Court's analysis of the AAT Act provisions, including ss 35, 37, 38AA and 18B, and the practice directions. On the extract available, the Court considered that the statutory scheme did not unmistakably show an intention to abrogate litigation privilege in the way the Tribunal's approach effectively assumed.

This is the most important point for business readers: the case is about sequence. The Court did not hold that privilege definitely existed. It held that the Tribunal could not lawfully skip over the privilege question and proceed as if the material were simply ordinary late evidence governed in the usual way by practice directions and hearing management concerns. Privilege had to be addressed first because it could change the legal framework for the later decisions.

The Court also found that the Tribunal made material errors of law and failed to accord procedural fairness. In the Court's view, failing to decide the central privilege issue meant the Tribunal asked the wrong question and misapplied the legal framework it was supposed to use.

The Court set aside the Tribunal's orders and decisions made on 7 and 9 February 2024. Those were the decisions refusing a confidentiality order and refusing leave to rely on the surveillance footage, associated materials and supplementary medical reports. The Court remitted the confidentiality application to the Administrative Review Tribunal, which had replaced the AAT, for determination according to law. Costs were reserved.

The Court also amended the name of the second respondent from the Administrative Appeals Tribunal to the Administrative Review Tribunal because of the legislative transition from the AAT to the ART.

Just as important are the limits of the decision. The Court did not finally determine whether the surveillance material and medical reports were privileged. It expressly left that issue to be decided on remittal. The extract states that the ART would need to determine the confidentiality application on the basis that it must decide whether the materials were confidential because they were subject to legal professional privilege before deciding whether a confidentiality order should be made.

So this is not a blanket authority that surveillance material can always be withheld from the other side until hearing. Nor is it a final ruling that K & S Freighters was entitled to rely on the material. It is a strong authority on the proper order of decision-making where privilege is genuinely in issue.

Businesses should read this case as a warning against leaving privilege and disclosure strategy until the week before hearing. K & S Freighters may have had an arguable privilege position, but it still ended up in an urgent procedural dispute because the material was raised very late. The Court acknowledged competing fairness concerns. There was fairness to Mr King if previously undisclosed material were allowed in at the last minute, and fairness to K & S Freighters if it were prevented from using material it said was important for cross-examination.

That means privilege is not a substitute for planning. Even if surveillance or expert material may be privileged, businesses still need to think early about hearing timetables, confidentiality applications, possible leave issues, and how a tribunal or court may react if the material surfaces close to hearing.

The extract also shows that privilege analysis depends on purpose and context. The Court summarised the dominant purpose test for advice privilege and litigation privilege. It did not say that every surveillance package or every expert report obtained after surveillance is privileged. Whether privilege applies will depend on why the material was created, who commissioned it, and how it was used and handled.

For business owners and in-house teams, the practical reading is that surveillance, investigator work and expert evidence should be managed as part of a single dispute strategy. If lawyers are involved, document the purpose clearly. Limit unnecessary circulation. Check the procedural rules early. If confidentiality relief may be needed, do not assume it can be obtained at the last minute without risk.

The documents at the centre of the case were not limited to raw surveillance footage. They included the video footage itself, reports prepared by the private investigator who conducted the surveillance, and orthopaedic reports, including a supplementary report dated 18 January 2024 that commented on surveillance material. That matters because businesses often assume privilege analysis is the same for every related document. It may not be. Different documents can raise different questions depending on how and why they were created.

The conduct that triggered the dispute was also important. K & S Freighters sought an ex parte confidentiality order on 2 February 2024, shortly before a hearing due to start on 12 February 2024. After the ex parte application failed, the parties conferred, and K & S Freighters indicated it could not assess readiness to proceed without knowing whether and how it could rely on the surveillance material. The Tribunal then held an inter partes hearing on leave and refused leave. That refusal effectively prevented K & S Freighters from using the material at the hearing and led to the adjournment and judicial review.

From a business perspective, this sequence shows how quickly a dispute about evidence can become a dispute about jurisdictional error and procedural fairness. Once the Tribunal treated the matter as one governed by practice directions and late-evidence principles without first deciding privilege, the whole process became vulnerable to challenge. The Federal Court's intervention was therefore directed at the legal pathway the Tribunal took, not at the ultimate merits of the surveillance material itself.

That is why the case should be read carefully. It is not authority for tactical ambush. It is authority that where privilege is genuinely raised, the decision-maker must confront that issue first because it may shape the rest of the analysis.

This page is based on the Federal Court decision K & S Freighters Pty Ltd v King [2026] FCA 58, delivered by Feutrill J on 6 February 2026. The available reasons confirm the parties, the statutory setting, the principal issues, the Court's central reasoning and the final orders.

The available judgment is truncated before the end of the reasons. The key public explanation above is limited to what is clearly supported by the published material. It should be read as a practical case explainer, not as a substitute for reviewing the full reasons and any later remittal or appeal developments.