Effect of delayed efforts in sourcing experts



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The Tribunal rejected the adjournment request, citing the party's delayed efforts to retain experts.
Australia Litigation, Mediation & Arbitration
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Recycal Pty Ltd v Director, Environment Protection Authority (No.2) [2024] TASCAT 91

In this case, the Tribunal rejected a party's adjournment request, citing its delayed efforts in retaining experts and the lack of evidence suggesting success even if allowed more time.


The appellant Recycal was issued an Environment Protection Notice (EPN) by the respondent, the Director, Environment Protection Authority, under the Environmental Management and Pollution Control Act 1994 (Tas).

The appellant operates a waste storage and metal recycling facility, which functions under a planning permit with specific environmental conditions. Under the EPN, it was found that the shredder floc generated by the appellant contained contaminants classified as controlled waste.

On appeal, the appellant challenged the conditions stated in the EPN.

Expert Evidence

The appellant applied for a stay of operation of the EPN and relied on environmental scientist Mr MC and an expert in fire risk management Mr MP.

At the directions conference held on 6 March 2024, the respondent was directed to file and serve evidence by 6 May 2024 and for the appellant to file and serve evidence by 20 May 2024. While the respondent filed its extensive evidence (by nine witnesses) on 6 May 2024, the appellant had not filed any additional evidence aside from that of Mr MC and Mr MP.

The appellant filed an application for adjournment on 29 May 2024, based on its inability to secure expert witnesses for certain issues, arguing that proceeding to a hearing on the scheduled dates would be procedurally unfair.

The appellant relied on an affidavit of its solicitor, who formed the view that in addition to Mr MC's evidence, it needs to retain an environmental expert to give expert evidence in respect to landfill operations, dust, water/leachate management, waste characterisation and handling and how floc and similar material is handled in the mainland states. According to the appellant's solicitor, she reached out to approximately 15 experts between 10 and 28 May 2024. These experts either did not respond, were unable to assist the appellant or declined the brief.

The appellant stated that, despite diligent efforts, they have been unable to secure a suitably qualified environmental expert to prepare a report and testify at the hearing. The appellant also argued that postponing the hearing would provide additional time for the respondent to continue preparing its case, allowing for the production of dust monitoring and soil sampling results or analysis by the respondent, which can then be considered by the expert witnesses.

Meanwhile, the respondent argued that it should have been clear to the appellant from the beginning that expert and technical evidence regarding the characterisation of the floc, dust deposition, waste floc management and lawful disposal options for floc would be necessary. The respondent contended that the appellant had not acted diligently in securing expert opinions and had not shown that an adjournment would enable them to secure an expert witness.

The Tribunal refused the appellant's application to adjourn the hearing.

The Tribunal found no evidence suggesting that the appellant will have more success in retaining an expert if given additional time. Securing an expert and the potential for that expert's testimony to benefit the appellant's case is entirely speculative.[18]

It was also held that the appellant has not clarified why Mr MC, who is a Certified Environmental Practitioner (Impact Assessment Specialist), a Registered Environmental Assessment Practitioner and a director of a firm providing environmental services and advice, cannot address the relevant issues mentioned in the appellant's solicitor's affidavit. Therefore, the appellant does have environmental expertise available to assist in preparing and presenting its case.[19]

The Tribunal also stated that the appellant has been aware of the issues since the EPN was served or, at the latest, since the appeal was filed more than three months ago. Despite the respondent's extensive evidence in the stay application, the appellant only began efforts to retain an expert after the respondent's evidence was submitted on 6 May 2024. Waiting for the respondent's evidence before preparing was unreasonable, especially given the nearly three months' notice of the hearing dates and the public interest in the prompt resolution of the matter.[20]-[21]

Key Takeaways:

  • Lawyers should source their expert witnesses promptly, so as not to resort to last-minute applications for adjournment.
  • Lack of diligence in securing expert opinions despite a lengthy notice period before the hearing is detrimental to a case.
  • Delayed efforts in retaining experts and the lack of evidence suggesting success with more time allowance, may lead a court or tribunal to reject a party's adjournment request.

Read the full decision here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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