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Evidence

Last updated: 29 Mar 2021

 

It can sometimes be overlooked that evidence should play a significant role in the determination of disputes at the Tribunal. Lawyers representing clients should always be careful to insist on the provision of evidence. In particular:

  • Understand what evidence is required to support your client’s claims. This includes evidence in mitigation such as medical evidence (reports, letters) and factual evidence (for example, witnesses and documents in relation to substantive legal issues).
  • Understand what evidence is required to support the other party’s claims. Residential rental providers may often refuse to provide evidence to support their application. For example in compliance matters where it is alleged the renter disturbed the peace of neighbours, the residential rental provider may refuse to disclose particulars of the complaint (Who? When? Where?) which would enable the renter to respond.

Do the rules of evidence apply?

Generally speaking, the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record: Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) s 98(1)(b). Furthermore, the Tribunal can inform itself on any matter as it sees fit and this may involve receiving expert or non-expert opinion, accepting a report without calling its author or taking hearsay evidence into consideration: s 98(1)(c) VCAT Act.

Despite this overarching flexibility, the rules relating to evidence should not be disregarded altogether and they may affect the weight to be given to evidence. For example, sworn evidence is generally given more weight than the written statements of people who are not called as witnesses. In relation to the appearance of witnesses at the Tribunal, the ability to cross examine witnesses and test their evidence is relevant to the weight to be given to their evidence. These rules may assist you in advocating for your clients.

As the rules of evidence do not apply, the rule in Jones v Dunkel is not strictly applicable. The rule in Jones v Dunkel allows an inference to be drawn from a party’s unexplained failure to call particular evidence which they would reasonably be expected to call. The potential inference is that the evidence, if called, would not have helped that party.  Despite its lack of strict applicability, the rule in Jones v Dunkel has been applied in Tribunal proceedings to allow for certain evidentiary inferences against a party to be more confidently drawn, but only when the party is clearly put on notice of that possibility: see Done v Graham [2020] VCAT 646 at [55]-[59].

Production of documents

Sometimes it will be necessary to ask the other party for details of what documents they wish to rely on at the hearing prior to the hearing.

While there is no discovery process at the Tribunal, the right to a fair hearing can be used to request production of documents, specifically by relying on:

  • Section 80(1) VCAT Act which states ‘The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding’. It is well established that this power includes the power to order parties to produce documents.
  • Section 104 VCAT Act which provides for the issue of a summons to a person to attend the Tribunal and produce any documents that are referred to in the summons. For more information on summonses at the Tribunal see Summons to give evidence or produce documents.

See Obtaining information or documents from non-parties for information about how to obtain documents from non-parties.

How is ‘fairness’ relevant to evidence?

As discussed above, ss 97 and 98 of the VCAT Act specifically state that the Tribunal must act fairly and according to the rules of natural justice. This requirement is supplemented by the fair hearing right in s 24 of the Charter of Human Rights and Responsibilities Act 2006(Vic) (Charter) and the directions power in s 80 VCAT Act which again refers to the obligation to ensure a fair hearing.

As discussed on the Fairness page, a fair hearing involves the provision of a reasonable opportunity to each party to present their case under conditions that do not put them at a substantial disadvantage when compared to the other party. In Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1 at [47], Justice Bell of the Supreme Court noted ‘the right to a fair trial entails protecting the ‘equality of arms’ principle, an inherent element of the due process of law in both civil and criminal proceedings.’  An important aspect of this concept is being able to receive all relevant information in relation to the case to be met before preparing a reply. The UN General Comment to the International Covenant on Civil and Political Rights (ICCPR) at [13] noted the right to equality before the courts (which features in section 8 of the Charter) ‘ensures equality of arms’, and that ‘[t]he principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.’

Procedure for obtaining evidence under s 80 VCAT Act

A ‘paper trail’ is important for lawyers seeking to rely on the right to a fair hearing and in general it is best practice to:

  1. write and request information from the residential rental provider, and then
  2. apply for an order for production or discovery under section 80(1) of the VCAT Act.

See Letter requesting evidence.

This letter should be sent to other party(s) prior to the hearing to request copies of documents that may be relied upon at the Tribunal.

Example: Where a renter is at risk of eviction, it may be necessary to request details (also known as particulars) of the evidence which will be relied upon in order to support the eviction. In this situation a lawyer should consider writing to the residential rental provider to request the relevant information on the basis of procedural fairness (making reference to the VCAT Act, the VCAT Practice Note PNVCAT 3 and the Charter) – that is, to enable the renter to prepare for the hearing. The letter should note that if the material is not provided an application may be made to the Tribunal under section 80 of the VCAT Act and that the hearing may need to be adjourned in order to enable this issue to be dealt with.

In applying for orders for production or discovery under s 80, an application for directions hearing or orders should be used: Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (VCAT Rules) r 4.03. The application should be filed with the Tribunal and a copy served on the other party within 7 days of filing: VCAT Act s 72; VCAT Rules r 4.09.

The Tribunal ordinarily will convene a hearing of the parties to hear submissions before it makes directions, however there is no requirement that a hearing be held before directions are given: Buttigieg v Melton Shire Council [2004] VCAT 868 at [54]. The Tribunal will consider whether the orders sought are ‘necessary for the expeditious or fair hearing and determination of a proceeding’: s 80(1) VCAT Act.

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