1. The applicant requests an adjournment of the hearing for the following reasons:[1]
   1. on 28 and 30 January 2025, the applicant's representative sent letters of instructions together with accompanying brief of materials to various independent expert witnesses;
   2. on 7 February 2025, a prospective expert witness advised that a minimum monitoring period of three months was required to produce reliable and admissible data;
   3. on 14 February 2025, the prospective expert witness advised it was not in a position to assist the applicant with its case before VCAT;
   4. unaware of the email from the prospective expert witness advising that it could not assist applicant and only relying on the information from that prospective expert witness that three months were required for the collection of data, the applicant's representative contacted the other parties seeking an adjournment of the hearing; and
   5. the applicant's representatives made an application to VCAT for the adjournment of the hearing and requested a practice day hearing.
2. The applicant says that it has tried to obtain expert witnesses, and it had not been successful until recently. The applicant still requests an adjournment of the hearing to allow its expert witnesses to properly collect and prepare data to inform their witness statements.

WHAT DO THE RESPONDENTS' SAY ABOUT THE REQUEST FOR AN ADJOURNMENT OF THE HEARING?

1. The respondents highlight the lack of independent evidence to date to support the applicant's allegations and notes the only evidence advanced at present are 'bare assertions' in an affidavit of the sole director of the applicant.
2. The respondents submit that the dates for the provision of evidence have not changed since VCAT issued its initiating order in this proceeding. Thus, the respondents say that the applicant has been on notice of the dates for the provision of expert evidence since mid-September 2024.
3. The respondents highlight that the applicant appears not to have secured evidence between mid-September 2024 and late January 2025.
4. Further, the respondents refer to a letter from the applicant's representatives to the respondents dated 31 January 2023, some 18 months prior to this application before VCAT. The respondents say that the applicant has had two years to collect evidence to substantiate its allegations and has failed to do so.
5. Lastly, the respondents say that the applicant has not advanced any reasonable justification for its failure to comply with VCAT's orders in relation to lay witnesses.
6. Given the applicant's failure to properly prepare evidence for the hearing of this application notwithstanding the lengthy timeframe, the respondents say the request for an adjournment should be refused.

WHAT DO THE RESPONDENTS SAY ABOUT THE APPLICATION?

1. Relying on its submissions above, the respondents submit they will be disadvantaged by any adjournment because they still do not understand the case they need to meet beyond the applicant's bare assertions. The application was filed in mid-August 2024 and since being served with the application the respondents have:
   1. incurred legal costs;
   2. diverted the attention of its directors and employees from their work to instructing their legal representatives; and
   3. endured unnecessary litigation strain as they do not know what case they are required to meet.
2. The respondents highlight that council has attended the premises and has not proceeded with any action against them. And further, that the Environment Protection Authority is not participating in this proceeding even after having been served with the application.
3. The respondents say the actions or inactions of the applicant are unfair and result in unnecessary delay in the resolution of the proceeding. Consequently, the respondents say the application should be summarily dismissed or struck out:
   • under s 75(1)(a) of the VCAT Act as either misconceived or lacking in substance; or
   • under s 76(1) of the VCAT Act because the applicant has failed to establish a proper basis for its claims and thus, this constitutes 'want of prosecution'; or
   • under s 78(1) of the VCAT Act because the applicant has failed to comply with VCAT's orders without reasonable excuse and seeks an adjournment as a consequence of that non-compliance.
4. The respondents also seek their costs under either s 109(3)(c) or (e) or 75(2) of the VCAT Act.

WHAT DOES THE COUNCIL SAY ABOUT THE REQUEST FOR AN ADJOURNMENT OF THE HEARING?

1. Council highlights that it has no direct interest in the outcome of the proceeding save for, enforcing any order made by VCAT (should one be made).
2. However, council says that it has incurred expenses because it has been joined as a party to the proceeding and is participating in the proceeding.
3. Council also opposes an adjournment of the hearing and any extension to comply with VCAT's orders for the filing of evidence because it says there is insufficient justification for the requests.
4. Council agrees with respondents' summary of events and says that supports a refusal of the request for an adjournment.
5. Council notes that its resources are also being diverted from its functions as the responsible authority and that should not continue in circumstances where the applicant by its own making is not able to proceed with the application it commenced.

WHAT DOES THE APPLICANT SAY ABOUT THE REQUEST FOR SUMMARY DISMISSAL?

1. The applicant opposes the respondents' request for summary dismissal of its application and relies upon ss 97 and 98 of the VCAT Act.
2. It says the summary dismissal of the application would deny it the opportunity to advance its case and that is a 'serious matter'. The applicant relies upon VCAT decisions that highlight the high bar faced by a party seeking the summary dismissal of an application. I do not recite those cases in these reasons.
3. In essence, the applicant says that it has secured evidence to support its case, it should be afforded the opportunity to rely upon that evidence and that necessitates an adjournment of the hearing.
4. In response to the respondents' submissions regarding s 78 of the VCAT Act, the applicant simply says it has a reasonable excuse, and any alleged disadvantage to the respondents' can be remedied by costs.

1. I agree with the respondents and council that it is the action or more accurately, the inaction of the applicant that has led to the request for an adjournment of the hearing.
2. The application was filed with VCAT on 16 August 2024 by the applicant. The first VCAT order in this proceeding is dated 20 September 2024 and listed the proceeding for a hearing on 18 and 19 March 2025 and a compulsory hearing conference on 12 December 2024. This initiating order clearly provided the timelines for the filing of evidence prior to any hearing.
3. It is apparent from the Michailides Affidavit that expert evidence was not sought until late in January 2025, some five months after the application was filed with VCAT. This is unfortunate and disadvantages the respondents because they are still not aware of the entirety of the case that they need to meet should the matter proceed to a hearing. The council is also disadvantaged as it is essentially participating in the proceeding to assist VCAT.
4. However, to refuse the application for adjournment will cause greater disadvantage to the applicant notwithstanding its own actions or inaction has led to this request for an adjournment of the hearing.
5. Section 102 of the VCAT Act deals with evidence and provides:

(1) The Tribunal must allow a party a reasonable opportunity - > > > (a) to call or give evidence; and > > > > (b) to examine, cross-examine or re-examine witnesses; and > > > > (c) to make submissions to the Tribunal. > > (2) Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal. > > ...

6. It might be said that the applicant has had a reasonable opportunity to call evidence given the timeline described earlier. However, I am also cognisant that parties often delay engaging expert witnesses until after a compulsory conference to avoid unnecessary cost. I accept that this position was not put to me by the applicant in its request for an adjournment of the hearing.
7. I was informed by the applicant that it has now secured witnesses whose expert evidence it intends to rely upon at the hearing. The approach taken by the applicant is not without risk to its own case. I say this because it has chosen to file an application for enforcement order alleging breaches of the 2102 permit and the 2020 permit apparently without independent expert evidence of the alleged breaches.
8. However, that is a risk that rests with the applicant and its respective case.
9. In the circumstances, I am prepared to adjourn the hearing of the proceeding to allow the applicant a further opportunity to call evidence in its case. The disadvantage to the respondents by the adjournment can be remedied by costs. Given the conduct of the applicant and its inaction to date in this proceeding, I am persuaded that I should reserve costs in favour of the respondents.

1. It follows from what I have said above that I will not be summarily dismissing the application under any of the provisions of the VCAT Act relied upon by the respondents.
2. I rely upon the decision in Axicom Pty Ltd v Melton CC[2] (Axicom) where Dwyer DP stated:
   1. The general principles relating to the operation of section 75 of the VCAT Act are clear. For a proceeding to be summarily dismissed:

• the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail. * the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be 'very clear' that the proceeding is 'absolutely hopeless'. * the power should not be invoked where all that is shown is that, on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint. * a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested. * the respondent to a proceeding bears the persuasive burden of showing 'that the complaint is undoubtedly hopeless'.

3. I also note that the various VCAT decisions refer to there being a 'very high bar' to be met by a party seeking summary dismissal of a proceeding.
4. To be frank the respondents have not met that very high bar. In essence, the respondents complain that the applicant has had ample opportunity to prepare its evidence, and that is true. However, that is not sufficient for present purposes to conclude that the applicant's case is unsustainable in fact or law, or absolutely hopeless or undoubtedly hopeless. The applicant has advised that it has engaged expert witnesses in occupational dust and occupational hygiene. The applicant says it requires this evidence to fully advance its case, and it should be given this opportunity. I agree the applicant should be given another opportunity to prepare evidence. Although, I do note my comments earlier about the applicant's inaction to date with respect to expert evidence.
5. Having regard to that, the request for summary dismissal is refused.

1. My orders also reflect an updated timetable for the future conduct of the proceeding including the filing of evidence, submissions and a Tribunal Book. The respondents requested an eight-week period between the filing of the applicant's evidence and their evidence.

2. On the information before me, I am not persuaded that period of time is necessary. However, should that period become necessary, the respondents can seek an urgent practice day hearing with justification to reconsider the timetable.

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[1] Set out in the Affidavit of Sophia Nicole Michailides affirmed 17 February 2025 ('Michailides Affidavit')

[2] (Red Dot) [2020] VCAT 190 [9].