PKWK and Innovation and Science Australia (Taxation) - [2021] AATA 706

PKWK and Innovation and Science Australia (Taxation) [2021] AATA 706 (24 March 2021)
Division:GENERAL DIVISION
File Number: 2016/4792
Re:PKWK
APPLICANT

AndInnovation and Science Australia
RESPONDENT

DECISION
Tribunal:R. Cameron, Senior Member
Date:24 March 2021
Place:Melbourne

The Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that, pursuant to section 27B of the Industry Research and Development Act 1986, the correct and preferable decision is that:
(a)the activities comprising Core Activity 1.1 were “core R & D activities” within the meaning of section 355-25 of the Income Tax Assessment Act 1997 conducted during the income year ended 30 June 2015; and
(b)the activities comprising Supporting Activities 1.1.1 and 1.1.2 were “supporting
R & D activities” within the meaning of section 355-30 of the Income Tax Assessment Act 1997 conducted during the income year ended 30 June 2015 in relation to the activities comprising Core Activity 1.1.

.....[sgd]..................................................................
R. Cameron Senior Member
Catchwords
TAXATION – research and development tax offset – activities relating to development of soil treatment facility – whether activities were “core R & D activities” or “supporting R & D activities” within the meaning of Division 355 of the Income Tax Assessment Act 1997 – analysis of expert evidence – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Income Tax Assessment Act 1997 (Cth)
Industry Research and Development Act 1986 (Cth)
Cases
Briginshaw v Bringinshaw (1938) 60 CLR 336
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
DBTL v Innovation Australia (2013) 137 ALD 88
Industry Research and Development Board v Coal & Allied Operations Pty Ltd (2000) 101 FCR 405
Industry Research and Development Board v Unisys Information Services Australia Ltd (1997) 77 FCR 552
JSLP and Innovation Australia [2016] AATA 23
Moreton Resources and Innovation and Science Australia [2018] AATA 3378
Moreton Resources Limited v Innovation and Science Australia [2019] FCAFC 120
RACV Sales and Marketing Pty Ltd v Innovation Australia (2012) 129 ALD 32
Raymor Contractors Pty Ltd v FCT (1991) 201 ATR 1410
Strong Wise Limited v Esso Australia Resources Pty Ltd [2010] FCA 240
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Secondary Materials
Administrative Appeals Tribunal, Use of Concurrent Evidence in the AAT Guideline (30 June 2015)
Administrative Appeals Tribunal, Persons Giving Expert and Opinion Evidence Guideline (30 June 2015)
I Freckelton and H Selby, Expert Evidence (2013, 5^th ed, Thomson Reuters)
REASONS FOR DECISION
R. Cameron, Senior Member
24 March 2021
INTRODUCTION

The Applicant seeks review under section 30E of the Industry Research and Development Act 1986 (“the IR & D Act” ) of an internal review decision made on 9 August 2016 by a delegate of the Respondent of a decision made on 24 November 2015 under section 27B of the IR & D Act that certain activities were not a “Core R & D activity” for the purposes of the IR & D Act and also that they were not “Supporting R & D activities” within the meaning of the IR & D Act.
BACKGROUND
Mr A is the driving force behind the Applicant.[1] He had for some time prior to the events relevant to this application been employed by a construction and property development company established by his father. This company will be referred to as PLPD. In various projects undertaken by PLPD it had encountered problems with contaminated soil. Apparently, soil contamination is a difficulty frequently encountered in property developments. Contaminated soil is difficult and expensive to manage. The frequency of soil contamination and the experience that PLPD and Mr A had with the problem prompted him to look for more effective, efficient and sustainable ways of site remediation particularly in relation to the treatment of contaminated soils. His research revealed that contaminated land and its remediation in Australia is a billion-dollar industry. Given the recent well-known difficulties that have been encountered with the West Gate tunnel project (amongst others) as a result of significant soil contamination of that site, this is fully understandable.
[1] This background, which is not controversial, is largely derived from the evidence given by Mr A in the two witness statements made by him on 12 May 2017 and 1 November 2017 (together with annexures) that were tendered in evidence during the hearing of this application, together with the viva voce evidence he gave from the witness box.
Mr A formed a belief that it was possible to establish a business based upon remediation of contaminated soils. He commenced detailed technical investigations to find the best soil treatment technologies with a view to bringing them to Australia. During this time, he spent two years in Europe working on construction and waste treatment projects. He met several persons engaged in developing waste and soil remediation processes. Ultimately, he met a German engineer, Mr Von Christen, who was a director of a German Corporation, TechTrade GmbH (“TechTrade”), which has designed and installed plants which apply what is known as “pyrolysis technology”. This included the design and construction of a plant in Herne, Germany, which used pyrolysis to treat contaminated soil.
Pyrolysis is apparently a “very old process” which involves decomposing organic material by heating it in the substantial absence of air. Its application has occurred over many years to different materials. Examples given were of forming charcoal from wood or town gas from coal which was a common method of gas extraction prior to the introduction of natural gas. Another definition was said to be that of a process for disintegration of organic substances at elevated temperatures under an inert atmosphere. The technically preferred “reactor” was described as a heated rotary drum.[2]
[2] The definitions or descriptions from this paragraph are taken from the report of Professor Brian Haynes (an expert called by the Respondent) dated 7 September 2017 at paragraphs 4.1 and 5.13. Mr Morey at paragraph 41 of his second witness statement agreed that pyrolysis technology is very old.
After carrying out his investigations, Mr A believed that pyrolysis technology could be used to establish a soil treatment facility in Victoria. Mr A returned to Australia and, with his father, established the Applicant. They have an equal shareholding in it. Mr A is its sole director.
Not much more needs to be said about this in these reasons other than that these endeavours led to the construction and commission of a soil treatment facility in April 2015. Initially, the facility operated under what is known as a commissioning approval issued by the Environment Protection Authority (“EPA”). This continued until 30 June 2016 when the EPA issued a full operating licence.
Relevantly for the purposes of this application, when the soil treatment plant was in the later stages of construction in approximately 2014, Mr A commenced investigating whether pyrolysis technology could be applied to the processing of what is known as municipal solid waste (“MSW”). Most MSW generated in Victoria is disposed of in landfill sites. There is considerable interest, on environmental grounds amongst others, in developing alternate means of disposal.
Apparently, processing of MSW involves a very different application of pyrolysis technology. The main reason for this is because of the differing feedstock, namely MSW, rather than contaminated soil. Also, the different application of technology is required because different outputs, or end products, are intended to be produced using such a process, namely electricity, fuel and what is known as “char”.[3] Naturally, any facility which would process MSW had to be capable of producing sufficient electricity, fuel and char to make it commercially feasible, whilst at the same time maintaining best practice environmental standards.
[3] Char apparently has the potential to be used as a soil conditioner or fertiliser additive. The evidence was that there is a growing market for it. Additionally, there are also environmental considerations because it represents a form of carbon capture from the waste stream which can be then converted into an inert and useful product (see Mr Morey’s first statement at paragraph 23).
On 15 August 2014, the Applicant signed a consultancy agreement with PLPD.[4] The terms of the consultancy agreement need not be recorded in detail as it is in evidence before the Tribunal.[5] There are several terms of the consultancy agreement which are not controversial. Under its terms PLPD agreed to provide the Applicant with the following services:
(a)Developing a process to enable the pyrolysis of MSW to produce a synthesis gas (“syngas”) with consistent quality, including:
(i)Designing process parameters with capability for the varying MSW inputs, with each component undergoing varying decomposition reaction pathways; and
(ii)Designing methods for MSW preparation to improve consistency of the input;
(b)Developing a process that can switch the syngas between combustion for electricity generation or cleaning and condensing for fuel production;
(c)Developing a process for cleaning the syngas, which could have varying composition, such that sufficient quality fuel or amounts of electricity can be produced; and
(d)Any other services required from time to time by the Applicant.
[4] Paragraphs 38, 39 and 40 of the first witness statement of Mr A. The consultancy agreement is exhibit "MA-8" to that statement.
[5] Exhibit "MA-8" to the first witness statement of Mr A.
The consultancy agreement provided for three phases of work:
(a)Phase 1 - provision of a Preliminary Design Report including Technical Summary and Design Overview and technical specifications for key proprietary equipment;
(b)Phase 2 - provision of a Detailed Design Report including technical specifications for the auxiliary equipment; and
(c)Phase 3 - provision of plant Construction Drawings.
PLPD provided the services required under the consultancy agreement between August 2014 and June 2015.
On 11 November 2014, PLPD produced a report entitled “MSW Waste to Energy Facility Project”, “140,000 t/a”, “Technical Summary and Final Design Overview Report”.[6]
[6] That report is exhibit "MA-10" to the first witness statement of Mr A. It is a relatively detailed report divided into "Part A. Basic data of the plant and assumptions", "Part B. Plant outlet data" and "Part C. Process description". Part C is divided into 15 subsections which provide significant detail concerning the design and operation of the proposed waste to energy pyrolysis plant which had been designed by PLPD.
In approximately January 2015, PLPD produced a set of Plant Layout Construction Drawings and Plant Construction Drawings[7] which included the following:
(a)A process description, a Mass & Energy balance, and Process Flow Diagrams (“PFD”);
(b)A scheme diagram of the system;
(c)Piping & Instrumentation diagrams;
(d)General arrangement drawings; and
(e)Detailed design of key equipment.
[7] Paragraph 44 of the first witness statement of Mr A is referred to for this evidence.
In March 2015, PLPD retained Lycopodium Process Industries Pty Ltd (“Lycopodium”), an engineering and project management consultancy firm with specialist knowledge in waste to energy processes, to review and amend the design and prepare further drawings and specifications to be incorporated into a scoping report and project implementation plan. The scoping report and project implementation plan were to be used by the Applicant for the development of the research and development (“R & D”) Project Facility. The various tasks undertaken by Lycopodium were supervised by Paul Morey, a Senior Project Manager. He gave evidence at the hearing of this application both by way of two witness statements and in the witness box.
Using the documents provided by PLPD, Lycopodium prepared the following:[8]
(a)equipment and instruments lists;
(b)piping material take off;
(c)electrical maximum load calculations;
(d)a draft project schedule; and
(e)a capital cost estimate.
[8] Paragraph 33 of the first witness statement of Paul Morey made on 12 May 2017.
These tasks required:
(a)reviewing the process design provided to Lycopodium by PLPD and using the engineering drawings to construct a 3D model of the R & D Project Facility plant;
(b)independently validating and providing input into the process using a process modelling software package known as Aspen+. Aspen+ was used for the design, operation and optimisation of process and manufacturing facilities;
(c)modelling various parameters and iterations of calculations; and
(d)using Aspen+ software to work out where the reactions would work and how big the Applicant needed to make the equipment.
After carrying out these steps, on 18 May 2015 Lycopodium prepared and provided to PLPD a “Project Scope Report – Municipal Solid Waste Facility.”[9] The Project Scope Report is both lengthy and detailed, comprising approximately several hundred pages. It includes several appendices comprising an array of plans, specifications and calculations. There are, by way of example, electrical specifications (for such things as installation of electrical systems, electrical systems for packaged equipment and electrical specifications for low voltage electric motors), mechanical specifications and detailed technical information requirements.
[9] The Project Scope Report is exhibit "MA-11" to the first witness statement of Mr A and exhibit "PM-3" to the first witness statement of Mr Morey.
The Applicant applied on 19 August 2015 for registration of its activities conducted in the financial year ended 30 June 2015 pursuant to section 27A of the IR & D Act.[10] The activities were described as:
[10] The "Application: Registration of R & D Activities" of 19 August 2015 is document T14 of the T documents.
(a)Core Activity 1.1, “Process design”, being:
1. Process design involving:
·     Calculating the required equipment sizing, and amending sizing based on the equipment operating efficiency; and
·     Determining how effectively the equipment transferred heat and testing equipment reaction times processing the inputs; and
·     Detailed and mechanical design of the thermal units, including pyrolysis kiln, drum dryer, burning chamber and steam generation boiler; and
·     Experimenting with different volumes of MSW feeds to determine the volume that can be processed by the treatment facility, an analysis of how the inputs chemically react and transfer through the process.
2. Modelling involving:
·     Process simulation of inputs to develop a detailed process design. There wasn’t a guarantee of consistent inputs. As a result, the simulation involved various types of MSW compositions to ensure there was flexibility of inputs; and
·     Process simulation involving experimentation with alternative combinations of construction materials to mitigate heat loss.
3. Mechanical design involving:
·     Designing the treatment facility, which required trialling various equipment sizing, and equipment support structures to allow equipment to expand during heat up to reaction at 600° Celsius;
·     Determining the ideal operating conditions to mitigate the impacts of equipment distortions while enabling ongoing equipment operation for the core pyrolysis section; and
·     Designing general plant input and output section.
(b)Supporting Activity 1.1.1, “Project Evaluation and Documentation”, being:
… Undertaken in conjunction with the detailed and concept design phases:
·     Verification across the engineering calculations with respect to design inputs and outputs;
·     Preparation of specifications for equipment that can be procured “off-the-shelf” to support the proprietary equipment;
·     Development of drawings for equipment, including the dimensions of equipment and inputs, and support structures;
·     Determination of whether the specifications would also comply with the relevant Australian Standards; and
·     Preparation of the report, including process description, equipment and instruments lists etc.
(c)Supporting Activity 1.1.2, “Project management”, being:
·     Project management/scheduling;
·     Meetings with design team to evaluate progress and design changes;
·     Analysis to determine unknowns;
·     Meetings with suppliers; and
·     Procurement of materials.
On 24 November 2015, the Respondent refused the application for registration under section 27B of the IRD Act on the grounds that:
(a)Activity 1.1 was not a core R & D activity for the purposes of the IRD Act; and
(b)Activities 1.1.1 and 1.1.2 could not be supporting R & D activities.
The Applicant sought an internal review of the decision of 24 November 2015.
The internal review was completed by the Respondent on 9 August 2016 and the decision of 24 November 2015 was affirmed. The Applicant seeks review of that decision in this Tribunal. The grounds relied upon by the Respondent in affirming the 24 November 2015 decision refusing the application for registration were that:
(a)The Applicant had not demonstrated that Activity 1.1 was a core R & D activity, as:[11]
(i)The Applicant had “not demonstrated that the outcomes of its experiments cannot be known or determined in advance on the basis of current knowledge, information or experience” and that the proposal only involved “optimising…… technology and processes [known to work] to account for different composition of municipal solid waste streams”;
(ii)“the project activity relates to operational challenges that a qualified professional could overcome using their experience and knowledge in the field” and the Applicant “has not provided a detailed description of any experiments undertaken to address a scientific theory”;
(iii)The Applicant had “not demonstrated that the activity was conducted for the purpose of generating new knowledge…” and “the knowledge being sought does not go beyond validating existing processes and knowledge in its particular circumstances”; and
(b)As Activity 1.1 was not a core R & D activity, Activities 1.1.1 and 1.1.2 (as the claimed supporting R & D activities for Activity 1.1) could not be supporting R & D activities.
[11] The following quotes are taken from the Respondent’s summary Closing Submissions. It is an accurate summary and there is no reason not to adopt it in this part of these reasons.
APPLICABLE LEGISLATION
This application requires a consideration of not only sections of the IR & D Act but also the Income Tax Assessment Act 1997 (“the ITA Act”).
The applicable parts of the ITA Act are found in Division 355 – Research and Development. Sections 355-5, 355-25 and 355-30 are relevant. It is useful to reproduce them in full.
“Subdivision 355-A – Object” of the ITA Act provides:
Section 355-5 Object
355-5 (1) The object of this Division is to encourage industry to conduct research and development activities that might otherwise not be conducted because of an uncertain return from the activities, in cases where the knowledge gained is likely to benefit the wider Australian economy.
355-5 (2) The object is to be achieved by providing a tax incentive for industry to conduct, in a scientific way, experimental activities for the purpose of generating new knowledge or information in either a general or applied form (including new knowledge in the form of new or improved materials, products, devices, processes or services).
“Subdivision 355-B – Meaning of R & D activities and other terms” includes the following sections which provide:
355‑25 Core R&D activities
(1) Core R&D activities are experimental activities:
(a) whose outcome cannot be known or determined in advance on the basis of current knowledge, information or experience, but can only be determined by applying a systematic progression of work that:
(i) is based on principles of established science; and
(ii) proceeds from hypothesis to experiment, observation and evaluation, and leads to logical conclusions; and
(b) that are conducted for the purpose of generating new knowledge (including new knowledge in the form of new or improved materials, products, devices, processes or services).
(2) However, none of the following activities are core R&D activities:
(a) market research, market testing or market development, or sales promotion (including consumer surveys);
(b) prospecting, exploring or drilling for minerals or *petroleum for the purposes of one or more of the following:
(i) discovering deposits;
(ii) determining more precisely the location of deposits;
(iii) determining the size or quality of deposits;
(c) management studies or efficiency surveys;
(d) research in social sciences, arts or humanities;
(e) commercial, legal and administrative aspects of patenting, licensing or other activities;
(f) activities associated with complying with statutory requirements or standards, including one or more of the following:
(i) maintaining national standards;
(ii) calibrating secondary standards;
(iii) routine testing and analysis of materials, components, products, processes, soils, atmospheres and other things;
(g) any activity related to the reproduction of a commercial product or process:
(i) by a physical examination of an existing system; or
(ii) from plans, blueprints, detailed specifications or publically available information;
(h) developing, modifying or customising computer software for the dominant purpose of use by any of the following entities for their internal administration (including the internal administration of their business functions):
(i) the entity (the developer) for which the software is developed, modified or customised;
(ii) an entity *connected with the developer;
(iii) an *affiliate of the developer, or an entity of which the developer is an affiliate.
355‑30 Supporting R&D activities
(1) Supporting R&D activities are activities directly related to *core R&D activities.
(2) However, if an activity:
(a) is an activity referred to in subsection 355‑25(2); or
(b) produces goods or services; or
(c) is directly related to producing goods or services;
the activity is a supporting R&D activity only if it is undertaken for the dominant purpose of supporting *core R&D activities.

The objects contained in section 3 of the IR & D Act should also be considered for the purposes of this application. The section need not be reproduced in its entirety. However, amongst other things, such objects include supporting and encouraging collaboration in the development and delivery of programs relating to industry, innovation, science and research. A further object is the promotion of the development and improvement of the efficiency and international competitiveness of Australian industry by encouraging R & D activities, innovation and science activities and venture capital activities. It is perhaps useful to acknowledge that the language used in drafting this section places some emphasis on the considerations of Australian industry and venture capital activities. The Tribunal considers that the industry and commercial quotient of these objects must be borne in mind when considering the substance of this application. In construing the relevant legislation applicable to this application and applying it to the relevant facts, these industry-based objects direct the decision-maker towards industry and venture capital considerations. These may differ from those that might be applicable to an institutional or academic environment, such as may be the case at the CSIRO or universities. Therefore, the task of construing this legislation must be undertaken with a degree of realism, adopting a beneficial and commercial approach, consistent with the text and objects referred to, for the purpose of encouraging research and development in a commercial setting.
It should be noted that under section 4 the IR & D Act the definitions of “core R & D activities” and “supporting R & D activities” have the same meaning as the ITA Act.
Under section 27A of the IR & D Act, when considering a R & D entity’s application the Respondent must decide whether to register that entity for all or part of the claimed activities as either core or supporting R & D activities.
Several points concerning the construction of section 355-25(1) of the ITA Act warrant mention.
The Respondent contended, and the Tribunal agrees, that the term “experimental” should be given its usual and ordinary meaning.[12] The Applicant also agrees with this approach. In construing the words “experimental activities” in section 355-25 of the ITA Act however, the text, object and purpose of Division 355 of the ITA Act should be recalled.
[12] Paragraph 66 of the "Respondent’s Closing Submissions" is referred to. In that paragraph reference is made to the decision of this Tribunal in RACV Sales and Marketing Pty Ltd v Innovation Australia (2012) 129 ALD 32 at [24]. In paragraphs 40 and 41 of the Applicant's submissions it was contended that there was nothing in the text of the relevant sections or the extrinsic materials for which the Tribunal is permitted to refer, that suggests the language used in the definitions of "core R & D activities" and "supporting R & D activities" should be used in any sense other than their ordinary meaning. Reference was made to a decision of the Full Federal Court of Australia in Industry Research and Development Board v Unisys Information Services Australia Ltd (1997) 77 FCR 552 at 560G – 561.
As noted by the Full Court of the Federal Court of Australia recently in Moreton Resources Limited v Innovation and Science Australia [2019] FCAFC 120 (Moreton Resources FCAFC) (a case decided since this application was heard), the purpose and object of Division 355 of the ITA Act is to:
“encourage industry to conduct research and development activities that might otherwise not be conducted because of an uncertain return from such activities, in cases where the knowledge gained is likely to benefit the wider Australian economy.” Such object is achieved by “providing a tax incentive for industry to conduct, in a scientific way, experimental activities for the purpose of generating new knowledge or information “in either a general or applied form (including new knowledge in the form of new or improved materials, products, devices, processes or services)””.
The Full Court also held that the words “experimental activities” used in section 355-25 are capable of applying, depending on the circumstances, to activities that are conducted for the purpose of generating new knowledge with respect to the application of an existing technology at a new site.[13]
[13] Moreton Resources Limited v Innovation and Science Australia [2019] FCAFC 120 at [151] to [153]. The parties to this application filed closing submissions before the Full Court decision in Moreton Resources. The Applicant contended by reference to the Explanatory Memorandum to the bills that introduce this legislation (at paragraph 36 of its final submissions) and the Tribunal agrees, particularly in the light of the Full Court's decision in Moreton Resources, that activities within the meaning of the section can include technology sought to be developed that is not wholly new, and may include technology that does something that has been done before in a different way. The fact that MSW pyrolysis has been attempted previously, does not exclude or prevent a party seeking to develop a way of using it which is more advanced than previously.
The Full Court of the Federal Court of Australia also noted in Moreton Resources FCAFC, with respect to the words “experimental activities” in the opening line of section 355-25(1), that they have little, if any, work to do beyond reflecting the type of activities described in paragraphs (a) and (b) of that subsection. Therefore, the Full Court opined that given the detail and content of the description in subparagraphs (a) and (b) of that subsection, it would be difficult to envisage activities that would meet the description of those paragraphs and not be considered “experimental activities” in the relevant sense required by that subsection.[14]
[14] Moreton Resources vInnovation and Science Australia [2019] FCAFC 120 at [148].
The treatment of activities as “experimental” within the meaning of section 355-25(1)(a) of the ITA Act is determined by whether the outcome itself can be known or determined in advance. There can be no core R & D activities within the meaning of the section if the outcome is known, or capable of being determined in advance. Such an outcome also being only capable of being determined by the application of a systemic progression of work, that is based upon principles of established science, and proceeds from hypothesis to experiment, observation and evaluation, and leads to logical conclusions.
The process or progression of the work described, rather than the outcome or result, is the factor which the Tribunal must consider when applying section 355-25(1)(a) of the ITA Act. Such outcome or result however, is relevant by reason of the need to consider whether it could have been known in advance.
Section 355-25(1)(b) of the ITA Act addresses the purpose of the “experimental activities” which prefaced subsection (1). The term “purpose” in the context of this section has been considered in several cases before this Tribunal. In JSLP and Innovation Australia[15] it was considered that the purpose need not be the dominant purpose motivating the activities but must be more than an insubstantial purpose. Deputy President Forgie in Moreton Resources and Innovation and Science Australia[16] (Moreton Resources AAT), after a most helpful analysis which is referred to, adopted a different approach to construing the term “purpose” and considered that ultimately, whether experimental activities are conducted for “the purpose” of generating new knowledge is a matter to be decided on the evidence in a particular case and not according to a characterisation of the purpose as substantial, more than insubstantial and so on. The Applicant contends, and the Tribunal accepts, such contention that either approach to construction of the term “purpose” is unlikely to lead to a different outcome. This Tribunal prefers the approach to construing the term “purpose” adopted by Deputy President Forgie in Moreton Resources AAT. The construction adopted by her conforms with the text of the section which should always assume primacy. The language used in the section does not invite a consideration or introduction of concepts such as “dominant”, “substantial” or “more than insubstantial”. The section is capable of construction and application to a fact situation without the necessity of introducing such concepts.
[15] [2016] AATA 23 at [52].
[16] [2018] AATA 3378 at [201] to [203].
As the purpose of generating new knowledge within the meaning of section 355-25(1)(b) of the ITA Act does not have to be a dominant one, such purpose is capable of coexisting with other purposes. This approach is also consistent with the industry and commercial quotient of the objects, amongst others, in section 3 of the IR & D Act referred to previously.
THE ISSUES BEFORE THE TRIBUNAL
The issues to be determined by the Tribunal are whether:
(a)the activities comprising Core Activity 1.1 were “core R & D activities” within the meaning of s 355-25 of the ITA Act; and
(b)the activities comprising Supporting Activities 1.1.1 and 1.1.2 were “Supporting R & D activities” within the meaning of s355-30 of the ITA Act.
EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and viva voce evidence before the Tribunal during the course of the hearing of the application.
Documentary evidence
There was an array of documentary evidence before the Tribunal as follows:
(a)The “T” documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act);
(b)Four volumes of court book;[17]
(c)An article by Thomas Malkow, “Novel and innovative paralysis and gasification technologies for energy efficient and environmentally sound MSW disposal” (2003);[18]
(d)A reproduction of a series of slides and photographs of “Burgau MW Pyrolysis Plant”;[19]
(e)A Vlobe article titled “Air pollutant emissions from Combustion Processes and their Control”;[20]
(f)An article titled “The Eddith Thermolysis Process – A ground-breaking solution for clean treatment of wastes”;[21]
(g)A bundle of documents entitled “Rotary Kilns: Transport phenomena and Transport Processes”;[22]
(h)Documents headed “D18 - D22” referred to in Professor Haynes first report;[23]
(i)An email chain between Paul Morey and Mr A with attached letter dated 20 March 2018 from Lycopodium Pty Ltd and five attached drawings;[24]
(j)A bundle of drawings;[25] and
(k)Two documents concerning Louisville Dryer Company.[26]
[17] Exhibit "A-1".
[18] Exhibit "A-2".
[19] Exhibit "A-3". Reference will be made throughout these reasons to this plant as it was the subject of considerable attention throughout the evidence before the Tribunal concerning the similarities and differences between it and the MSW treatment plant proposed by the Applicant.
[20] Exhibit "A-4".
[21] Exhibit "A-5".
[22] Exhibit "A-7".
[23] Exhibit "A-8".
[24] Exhibit "R-1".
[25] Exhibit "R-2".
[26] Exhibit "R-3".
Lay witnesses
The following lay witnesses gave evidence:
(a)Mr A, the sole director of the Applicant, gave viva voce evidence. Also received in evidence were two witness statements made by him on 12 May 2017 (Mr A’s first statement) and 1 November 2017 (Mr A’s second statement).
(b)Mr Paul Morey also gave viva voce evidence. He made two witness statements dated 12 May 2017 (Mr Morey’s first statement) and 30 October 2017 (Mr Morey’s second statement) which were also received in evidence.
(c)Mr G, a project manager, gave both viva voce evidence and made a witness statement dated 30 October 2017 which was also received in evidence.
Expert witnesses
Mr James Bland, a chemical engineer, gave evidence on behalf of the Applicant in the witness box. Also in evidence from him were reports dated 30 May 2017 (Mr Bland’s first report), 3 November 2017 (Mr Bland’s second report) and 1 November 2018 (Mr Bland’s third report).
Professor Brian Haynes gave evidence on behalf of the Respondent in the witness box. Similarly, reports from him dated 7 September 2017 (Professor Haynes’ first report) and

14 November 2018 (Professor Haynes’ second report) were in evidence.
A joint expert report of Mr Bland and Professor Haynes dated 24 April 2018 (Joint Expert Report) was also in evidence.
The evidence of Mr Bland and Professor Haynes at the hearing of the application was given in accordance with the “concurrent evidence procedure” articulated in paragraph 4 of the Administrative Appeals Tribunal “Use of Concurrent Evidence in the AAT” Guideline issued by the then President on 30 June 2015.[27]
[27] In addition to the current evidence procedure identified in the guideline referred to, the observations made by Rares J in Strong Wise Limited v Esso Australia Resources Pty Ltd [2010] FCA 240 at [95] were referred to and followed in the course of their evidence. Paragraph 6.15.80 “Procedures for concurrent expert evidence” of Chapter 6.15 “Concurrent Expert Evidence” of Expert Evidence, Freckelton & Selby, Fifth Edition is also referred to.
OBJECTIONS TO VARIOUS PARTS OF THE EVIDENCE OF PROFESSOR HAYNES AND MR MOREY
The Applicant objected to several paragraphs and parts of paragraphs of Professor Haynes’ first report.
The Respondent objected to several paragraphs of Mr Morey’s second statement.
The parties to the application were content for the Tribunal to rule upon each of the objections as part of its final reasons determining the application.
Objections to the evidence of Professor Haynes
The Applicant objects to several paragraphs of Professor Haynes’ first report. The grounds of the objections have been formulated by the Applicant in a written submission. Helpfully, there is a schedule to the Applicant’s written submission which identifies those paragraphs to which objection is taken. There are two grounds of objection relied upon by the Applicant. The first ground of objection is relevance. The second ground of objection is that the Applicant contends that Professor Haynes reviews documents and purports to express an opinion on their evidentiary value. This is also contended to be a value judgement expressed by him about the utility or weight to be given to other evidence.
In developing its contentions concerning the relevance of the selected portions of Professor Haynes’ first report, the Applicant commences by examining the precise words used in the letter of instruction sent to Professor Haynes on 25 July 2017 and identifying what he was specifically asked to do. It is not necessary for the purposes of these reasons to recount the language of the letter used other than to observe that the first question requested Professor Haynes to identify, with as much precision as possible, what the activities claimed by the Applicant to be “Core R & D Activities” and “Supporting R & D Activities” were, and whether they were conducted between 1 July 2014 and 30 June 2015.
It is contended by the Applicant that Professor Haynes’ answer to the first question contained in the letter of instruction addressed to him on 25 July 2017 contains little more than commentary on the documents and his personal and subjective non-expert observations on their evidentiary value. Further, it is contended that he included arguments about the time when such documents may have been produced and examples of these arguments were given.
The alternate ground of objection raised by the Applicant is that the portions of Professor Haynes’ first report objected to are not within the realms of proper expert evidence as he purports to express an opinion on the utility and weight of other evidence. This is contended by the Applicant as a matter for the Tribunal. An analogy was drawn with the provisions of the uniform Evidence Act 1995 which need not be reproduced here.
The Applicant developed the contention that whilst the “ultimate issue” rule has been abolished, the Tribunal was not assisted by the approach adopted by Professor Haynes. The Applicant contends that Professor Haynes has, in effect, sought to embark upon the function of the Tribunal with respect to fact-finding, as it is the role of the Tribunal to determine these matters rather than the experts. In support of this contention, the decision of Heydon J in Dasreef Pty Ltd v Hawchar[28] (Dasreef) was referred to.
[28] (2011) 243 CLR 588.
The attack on the evidence of Professor Haynes by the Applicant was resisted by the Respondent for several reasons. These reasons will be briefly summarised hereunder.
The first ground of resistance to the objections taken by the Respondent was to assert that they were mistaken at a conceptual level. This is because the Tribunal is not bound by the rules of evidence and is able to inform itself in any matter it thinks appropriate.[29]
[29] Section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) was relied upon.
Developing this contention, it is said that the rules of evidence, having been excluded specifically by the Act which governs the function and operation of this Tribunal should not be permitted to "creep back” through the exercise by the Tribunal of a discretion, or domestic procedural rule.
Secondly, it is contended that the approach adopted by the Applicant to, as it was put by the Respondent, overcome the statutory exclusion of the rules of evidence to ascertain the requirements of the principles of natural justice, was an argument that could not be sustained in this case. The contention is that the requirements of procedural fairness or natural justice in this case have been fully observed. The grounds for making these assertions were several, including that Professor Haynes’ report had been served over

12 months before the hearing. Further, Professor Haynes was open to

cross-examination, in which he could be challenged on any opinion expressed in such report. Finally, it was open to the Applicant to make any submission as it may be advised concerning the contents of Professor Haynes’ report.
The third ground of resistance from Respondent to the Applicant’s challenges to the relevant portions of Professor Haynes’ first report is prefaced on the fact that in all relevant Australian jurisdictions the “ultimate issue” rule has been abolished by the advent of the Uniform Evidence Acts. By reason of this fact, the appropriately qualified expert may express an opinion about a fact in issue, or as noted earlier the “ultimate issue”. Naturally, this does not mean that the court, or in this case the Tribunal, is bound to accept such evidence. For that matter, it is not obliged to give it any particular weight. The point being it is not inadmissible as noted earlier. Therefore, this is not a ground for rejecting such evidence, or otherwise ruling it inadmissible.
The fourth ground relied upon by the Respondent to resist the Applicant’s challenges to several portions of Professor Haynes’ first report concerns the application of the reasoning of Heydon J in Dasreef referred to earlier. To some extent the grounds as articulated in the Respondent’s submission on this topic overlapped with that of the third ground. It is that paragraph 56 of Heydon J’s decision in Dasreef does not represent, as it was described, “an exclusionary rule” but the role of, and perhaps more accurately, the approach to be adopted concerning expert evidence. It was repeated that the rules of evidence (or more precisely the applicable Uniform Evidence Acts that have been introduced in most Australian jurisdictions) have abolished the “ultimate issue” rule, and permit an expert in certain circumstances to express an opinion on matters that ultimately must be determined by the court or tribunal, as the case may be. To do so requires the expert’s evidence to explain how the field of specialised knowledge in which such witness is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded.[30] As the Respondent contends (properly relying upon paragraph 56 in Dasreef), frequently this requirement can be met very quickly and easily with little articulation or amplification once the expert witness has identified his qualifications and experience and identified the subject matter about which their opinion is proffered.
[30] Dasreef at paragraph [37].

The fifth ground of resistance articulated by the Respondent is prefaced upon the question actually asked of Professor Haynes as an expert. It is contended that this question, and the response of Professor Haynes, contained an appropriately identified subject matter about which the opinion was proffered in, as it may be called, the Dasreef sense. This contention is amplified by the Respondent noting that in its view, the evidence available to Professor Haynes at the time he produced his first report was limited in some ways to ways what it described as a level of generality approaching vagary. It also contended that on the information available at the time Professor Haynes prepared his report it was not clear what activities in fact had been undertaken by the Applicant. Therefore, it is contended that once it is accepted that the matters on which Professor Haynes opines were properly the subject of expert evidence, it follows that the opinions are relevant. It was readily conceded that the assessment of evidence is ultimately a matter for the Tribunal. However, given the technical nature of such evidence, it is contended by the Respondent that Professor Haynes’ description of what was done, and what was not done, is of considerable weight.
Ruling on the objections to Professor Haynes’ evidence
In ruling on the Applicant’s objections to the evidence of Professor Haynes, the Tribunal acknowledges that section 33(1)(c) of the AAT Act provides that the Tribunal is not bound by the rules of evidence. It is also acknowledged, as contended by the Respondent, that in any event the provisions of the Uniform Evidence Acts as have now been introduced throughout most Australian jurisdictions have abolished the “ultimate issue” rule. It is also acknowledged that when one considers the decision of Dasreef in the High Court of Australia, Heydon J in his consideration of the applicable principles acknowledged that he was not considering an exclusionary rule, but rather the appropriate role of expert evidence.
Several things should be observed in addressing the thrust of these submissions. It should not be forgotten that the rules of evidence emerged in the common law, various Evidence Acts in common law jurisdictions, and subsequent Uniform Evidence Acts in most Australian jurisdictions for a good reason. They are a refined form of procedural fairness that recognise there must be a limit on evidence received by a court on matters that it is called upon to adjudicate. Such things as the rules against hearsay have evolved for obvious reasons.[31] In other respects such as s 69 of the Evidence Act 1995 (Cth), “Exception: business records”, the rules facilitate the reception in evidence of documents kept by an organisation in the course of, or for the purposes of its business, to facilitate the ease of proof of financial, and other frequently recurring transactions. It is of assistance to the court. Surely, this approach is also a sensible one to adopt in Tribunal procedure.
[31] There are several reasons justifying the rationale of the rule against hearsay. Its inherent unreliability is one. The reporting of what another said, or for that matter a third person, has been said to carry with it "the seeds of distortion". An out-of-court statement made is also objected to on the grounds that it is not the best or original evidence. It is not made on oath. Therefore, its truthfulness or accuracy cannot be tested in the way that evidence given in the witness box can be.
The provisions of the AAT Act do not give the Tribunal licence to engage in an evidentiary “free for all”. Nor would the Tribunal be assisted by such an approach. The rules of evidence generally in Tribunal practice (and in this Tribunal) should be applied unless there is good reason not to do so. This approach has been enshrined in several leading authorities concerning the practice of this Tribunal over many years.
The Tribunal accepts the Respondent’s submission that, given the provisions of section 33(1)(c) of the AAT Act, the paragraphs in Professor Haynes’ statement complained of by the Applicant should not be excluded. In the view of the Tribunal, it is a question of the appropriate role of the expert, in this case Professor Haynes. It is in this context that the Tribunal accepts the alternative submission of the Applicant that, whilst the “ultimate issue” rule has been abolished, and experts can give evidence on ultimate issues, the Tribunal will not be assisted by the evidence given by Professor Haynes in the paragraphs of which the Applicant complains. Therefore, the Tribunal places no weight upon them.
There are several reasons for reaching this conclusion. The starting point is that of course this is a matter for the Tribunal to decide after having all the evidence placed before it, both documentary and viva voce. Professor Haynes, in making his first statement it is quite apparent, did not have before him all the evidence that was adduced before the Tribunal over four hearing days.
Another reason why the Tribunal cannot place any real weight or utility on those parts of Professor Haynes’ statement objected to by the Applicant is that his report, and the opinions expressed in it on those topics, were based upon a review or consideration of an incomplete part of all the evidence. He was not asked to reconsider the opinions expressed (as contended for by the Applicant) after the Respondent was served with further witness statements of Mr A and Mr Morey, prepared on behalf of the Applicant. Having made this observation, it is of course acknowledged that Professor Haynes prepared a second report (which did not refer to any of the further witness statements of Mr A or Mr Morey), and gave viva voce evidence at the hearing.
The Applicant noted that after receipt of the second witness statements, or more accurately as it describes them, the second series of witness statements, the Respondent filed and served its Statement of Facts, Issues and Contentions which did not identify as an issue, or advance any contention (as one would have expected) as to whether the Core R & D Activities were carried out.
The first question in the letter of instruction to Professor Haynes of 25 July 2017,[32] requested that he provide his opinion on the activities claimed by the Applicant to be Core R & D Activities and Supporting R & D activities and whether they were conducted between 1 July 2014 and 30 June 2015, as described in the witness statements of Mr A and Mr Morey dated 12 May 2017. Given that the Respondent has accepted that the activities described in the application for registration dated 19 August 2015 were carried out, the Tribunal accepts the contention of the Applicant that such a question calls for an irrelevant answer with respect to such activities, including the Core

R & D Activities.[33]
[32] The letter of instruction to Professor Haynes is to be found at page 1380 of the court book. The first question concerning this issue is at page 1386. The precise terms of the question asked in the letter of instruction to Professor Haynes are referred to for their full force and effect. The question of whether the activities concerned were conducted between 1 July 2014 and 30 June 2015, as described in the witness statements of Mr A and Mr Morey dated 12 May 2017, occupied considerable debate between the parties in the course of the hearing of the application, including whether Professor Haynes’ opinions on the topic were admissible or otherwise carried any weight. This issue will be addressed later in these reasons.
[33] Such concession made by Senior Counsel for the Respondent is to be found at pages 111 and 116 of the transcript.
Finally, another reason for accepting the contention of the Applicant that those portions of Professor Haynes’ witness statement are of limited utility or weight, arises from the findings that are made by the Tribunal based on the evidence of the Applicant’s witnesses that the activities, or work, were carried out within the relevant financial year, which are addressed further in these reasons below. Therefore, the Tribunal accepts the contention of the Applicant that, in response to the first question contained in the letter of instruction to him of 25 July 2017,[34] several of the paragraphs objected to contain little more than commentary on documents produced to Professor Haynes, his personal and subjective non-expert observations on their evidentiary value, together with arguments concerning when such documents may have been created.[35] However, it must be stressed that this consideration whilst an important one, is by no means the determining factor.
[34] Page 1380 of the court book.
[35] Reference was made by the Applicant to paragraphs [9.1]-[9.22].
The Tribunal finds that it is not assisted by an expert such as Professor Haynes conducting a review of the documents and expressing an opinion on their evidentiary status.
Objections to the evidence of Mr Morey
The Respondent objects to paragraphs 16-18, 29-51, and 61-64 of Mr Morey’s second statement.
Similarly, the grounds of objection have been formulated by the Respondent in a written submission. Submissions were made at the hearing from the bar table by Mr Knowles in support of those grounds of objection.
The grounds of objection are twofold:
(a)That the evidence is opinion evidence and it has not been shown that Mr Morey has relevant expertise; and
(b)That Mr Morey purports to give expert evidence outside procedures envisaged by the Tribunal’s Persons Giving Expert and Opinion Evidence Guideline 2015 in circumstances where the independent experts have prepared a joint report and have given concurrent evidence.
In support of the first objection to Mr Morey’s evidence, it is contended by the Respondent that he is a senior project manager with qualifications in mechanical and computer engineering. He is not a chemical or process engineer and has no established expertise in pyrolysis. It is then said that, despite this lack of relevant expertise, he has purported to critique the views of Professor Haynes.
In oral submissions on behalf of the Respondent it was acknowledged and not disputed that Mr Morey has an engineering qualification, and so to the extent that any of his evidence related to the design, for example of machine components, his mechanical engineering degree (and one would also contend his experience) may well qualify him as an expert in respect of those opinions.
The further ground of objection to the specified paragraphs of Mr Morey’s second witness statement arise from the fact that both parties to this application had retained qualified independent experts. Those experts had participated in a conclave, prepared a joint report and given concurrent evidence. It was contended by the Respondent in both its written oral submissions, that the Tribunal’s processes were being circumvented by Mr Morey’s approach, or more specifically, his evidence. This was achieved, it was contended, by the Applicant calling a separate “non-independent expert.” The Respondent submitted that this leads to a distraction and unnecessary imposition on the Tribunal’s time.
The tenor of this submission was also amplified by the Respondent because it said that Mr Morey cannot be independent in circumstances where one of the issues which is raised by the experts is the quality of the work which his firm undertook. Reference was also made in submissions by the Respondent’s counsel to the fact that the Tribunal’s Persons Giving Expert and Opinion Evidence Guideline 2015 requires a person who is giving evidence based upon their special knowledge or expertise not to be an advocate for the party calling them. That practice note also highlights a common feature of codes of conduct for experts in many jurisdictions that they have an overriding duty to provide impartial assistance to the Tribunal. Developing this contention, counsel for the Respondent asserted that Mr Morey had not attempted to display any independence in his statement by, for example, referring to having read the practice note (or any code of conduct for experts) and agreeing to be bound by its contents. If however the Tribunal did not agree with this contention, it was submitted by the Respondent that this factor must nonetheless critically undermine the weight that would be attributed to Mr Morey’s opinions on matters that the joint experts had not addressed.
The Respondent maintained a primary position that the paragraphs it complains of should be ruled as inadmissible. Alternatively, if the Tribunal should find otherwise, it contends that the issue goes to a matter of weight, such that Mr Morey’s evidence is critically undermined.
In response, senior counsel for the Applicant commenced by reiterating that his client was not proffering Mr Morey as an independent expert witness.
Senior counsel for the Applicant in amplifying his response carefully examined the contents of each of the paragraphs complained of by the Respondent. Concerning paragraphs 16-18 of Mr Morey’s second statement, he contended these were statements of fact; the evidence of Mr Morey was to describe what the Aspen+ software does. It is used by his company, Lycopodium. Senior counsel for the Applicant then stated that the documents referred to by Professor Haynes relate to incineration using fluidised bed reactors. As such, it is a different process to pyrolysis by the use of a rotary kiln. The Tribunal accepts this contention. It seems that it is drawing a very long bow to suggest Mr Morey’s evidence falls within the realm of expert evidence. Mr Morey is giving evidence of facts with which he is familiar, that familiarity having been obtained as a result of his involvement in the MSW project on behalf of PLPD. The paragraphs of his second statement objected to by the Respondent do not therefore, have the characteristics of opinion evidence, let alone expert opinion evidence in any sense.
As to paragraphs 29-51 of Mr Morey’s second statement, once again the Applicant contended that Mr Morey had a factual basis for expressing his disagreement with Professor Haynes. It was conceded that, for instance, portions of paragraph 37 of that statement were “a bit argumentative”, but nonetheless, he explained how the proposed process works as a matter of fact. It does appear to the Tribunal that overall these paragraphs were directed to facts rather than an opinion, and to the extent that it did stray into the realm of argument (if indeed it was that), or opinion, an appropriate factual foundation had been laid for it.
With the remaining paragraphs, a similar contention was advanced. It was also contended that Mr Morey is an engineer, admittedly a mechanical engineer by qualification. Nonetheless, he had been working on this project as an employee of Lycopodium. He has experience in such matters. It also should be noted that his experience was verified in his evidence in chief as a result of the objections taken by the Respondent.
The Applicant responded to the contention that it was inappropriate for Mr Morey to give opinion evidence due to the existence of a joint report prepared by Mr Bland and Professor Haynes by pointing out that Mr Morey’s second witness statement was filed before the joint report was prepared. Additionally, the assumptions given to Mr Bland and Professor Haynes prior to their joint conference which led to the preparation of the joint report included assumptions based on Mr Morey’s evidence, including the contents of his second witness statement, and presumably those paragraphs to which objection is now taken.[36] Therefore both experts, being Mr Bland and Professor Haynes, were in a position to deal with Mr Morey’s evidence in the course of preparing the joint report. It was also relevantly noted that, in paragraph 3 of the Statement of Agreed Facts[37] furnished to the experts prior to preparation of the joint report, they were advised that they could still have regard to material provided to them for the purpose of this proceeding, amongst other things. Given this fact, and that Professor Haynes had Mr Morey’s statement and no supplementary expert report was filed by him expressing any opinion on its contents, it was contended that it was at best a matter for cross-examination.
[36] The Tribunal observes that in the “Statement of Agreed Facts and Assumptions Between the Parties" furnished to Mr Bland and Professor Haynes (page 1454 of the court book) prior to the preparation of the joint expert's report on 24 April 2018 specific reference was made to the second witness statement of Mr Morey. Also, for that matter, reference was made to the second witness statement of Mr A. Presumably, and the Tribunal infers, copies of these witness statements were furnished to the experts with the Statement of Agreed Facts together with the document entitled "Questions for Mr James Bland and Professor Brian Haynes" (page 1463 of the court book).
[37] Page 1454 of the court book.
Ruling on objections to the evidence of Mr Morey
The Tribunal accepts the contentions made by the Applicant in relation to this evidence. The impugned evidence of Mr Morey is not an attempt at, or a circumvention of the Tribunal’s procedures. Once again, the factual foundation for the matters Mr Morey gave evidence on in his second witness statement was laid out. The second witness statement was made prior to the commissioning and provision of the joint report of Mr Bland and Professor Haynes. The contents of his second witness statement, and the paragraphs objected to by the Respondent specifically, were both relevant and probative. They ought not be ruled inadmissible. It is of course open to both parties to, as they did, make submissions on such evidence concerning its reliability, the weight to be placed upon the contents, and, where appropriate, identify what probative value such portions of the statements are to the Tribunal in terms of the fact-finding task, amongst other things, required of it.
As to the contention that Mr Morey cannot be independent in circumstances where one of the issues which is raised by the experts is the quality of the work which his firm undertook. Several observations should be made in ruling on this issue. The Tribunal notes that the Applicant did not proffer Mr Morey as a true expert as noted above. Also, it should be repeated that the fact of him being an engineer and familiar with the project should not prevent his evidence on topics with which he is familiar from being received. It is ultimately a matter for the Tribunal to decide whether or not to accept such evidence, as it would with any witness before it. If it does so, it is then a question of weight.
The fact that the quality of the work which Mr Morey’s company undertook may be under scrutiny in this application is beside the point. Naturally, his evidence will be viewed in a different light to that of a truly independent expert who is retained. It does not mean that his evidence should be excluded, nor that, if it is appropriately given and the Tribunal finds it credible, it should not be received and relied upon for whatever purposes are appropriate. It is not uncommon in a variety of different cases in courts and tribunals for a professionally qualified witness to give evidence which may well stray into the domain of opinion on the quality or standard of professional services that they have rendered to a client or otherwise carried out. It is a common feature of professional negligence cases.
The Tribunal acknowledges the force in the Respondent’s contention that a witness being called as an expert, or someone otherwise possessed of special knowledge and expertise, should not be an advocate for the party calling them. It also acknowledges the contention of the Respondent that Mr Morey did not in either of his statements, depose to having read, or be familiar with, the Tribunal’s Persons Giving Expert and Opinion Evidence Guideline 2015. Naturally, this is a factor that the Tribunal must take into account when assessing the evidence of Mr Morey and whether to accept or reject it. Insofar as his evidence strays into the realms of expertise or special knowledge, the Tribunal considers this argument is not one that justifies excluding his evidence but once again raises a question of the weight that should or should not be attached to it.

"(b),.. There are no examples of a successful application of indirect heated pyrolysis rotary kiln technology for the processing of MSW on the scale envisaged by the applicant;
(c)… The applicant is not merely "optimising" indirect heated pyrolysis rotary kiln technology and processes. The R & D Project Facility is unique, in that:
(i) unlike the Burgau plant, which is probably the most comparable, it features an innovative rotary steam drum pre dryer which has segmented zoned of drying for which the heat is supplied by low pressure steam;
(ii) it takes the low pressure steam from the turbine and uses it to heat the pre-dryer;
(iii) it takes low-pressure gas from inside the pyrolysis kiln and uses it to generate steam to generate electricity and to produce the heat which is used to heat the kiln itself;
(iv) it features an innovative kiln design developed specifically for MSW, having the ability to vary residence time, temperature embed depth;
(v) it recycles and re-burns flue gas, before cleaning it;
(vi) unlike the Burgau plant, it has two Tandem trains; and
(vii) unlike the Burgau plant the which the fuel is a homogenous mixture that includes sewerage sludge and landfill gas, the Applicants facility is intended to be able to operate solely on MSW and without the addition of external energy such as landfill gas, other than when starting up."