In this section
Evidence plays 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:
You should carefully consider if the evidence in support of an application proves the claims made against your client. For example, if the residential rental provider is seeking to evict your client on the basis of damage, you should analyse what evidence there is to support the claim not just that the damage was caused but also that your client caused it. Where an applicant provides insufficient evidence in support of a claim, you should consider whether it is beneficial to request further evidence noting that if the residential rental provider cannot provide evidence to substantiate their application against your client, the application should be dismissed.
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  VCAT 646 at -.
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:
See Obtaining information or documents from non-parties for information about how to obtain documents from non-parties.
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  VSC 1 at , 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  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.’
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:
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  VCAT 868 at . 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.
For notices to vacate with serious allegations, such as danger, serious damage and illegal use, evidence before VCAT in proceedings under the RTA cannot be used in criminal proceedings (Clause 74 of Sch 1 VCAT Act) but the rule against self-incrimination does not apply (s 105 VCAT Act).
In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) the High Court stated that while there are only two standards of proof, criminal and civil, where a party is attempting to prove criminal allegations (or non-criminal allegations with serious implications) in a civil proceeding, the probity of evidence required to discharge the balance of probabilities will fluctuate depending on the seriousness of the allegations.
In Briginshaw Dixon J stated:
“reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
This position was affirmed by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449 which stated:
“the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature and seriousness of what it is sought to prove”.
Despite the Briginshaw principle applying, the RRP does not need to establish criminal conviction (Director of Housing v Schiller (Residential Tenancies)  VCAT 1156).
While s 98(1)(b) of the VCAT Act states that the Tribunal is not bound by the rules of evidence, except to the extent that it chooses to adopt them, Courts have supported a view that the Briginshaw principles do apply to VCAT. It has been found that the Tribunal should ensure allegations are proven to a comfortable level of satisfaction and fairly and properly arrived at, commensurate with the gravity of the charge (Kyriackou v Law Institute of Victoria Ltd  VSCA 322 at  and Karakatsanis v Racing Victoria Ltd  VSCA 305 at  (Osborn JA), Greyhound Racing Authority v Bragg  NSWCA 388 at  (Santow JA)).
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