Obtaining information from non-parties

If relevant information or documents is being sought from a non-party in Tribunal proceedings, you may apply for a summons under s 104 (see Summons to give evidence or produce documents) or an order to produce under s 81 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).

An order to produce under s 81 VCAT Act is a more practical and convenient means of obtaining relevant information or documents than a summons under s 104, because it can be made in advance of the final hearing to enable the applicant to give full consideration to the relevant documents during pre-trial preparation: see McLernon Group Insurances Pty Ltd v Biron Corporation Ltd [1995] FCA 1360, cited by SC Land Richmond Pty Ltd v Dura (Australia) Constructions Pty Ltd [2006] VCAT 2519 at [11].

How do you apply for information from a non-party?

To apply for an order to produce under s 81, the same forms should be used as for an application under s 80 VCAT Act (see Evidence).

First, the documents should be requested by letter (see Letter requesting evidence) which will need to be modified for an application under s 81), and if the documents are not received, an application for directions hearing or orders should be prepared and filed.

The applicant may be ordered by the Tribunal to pay the costs of the third party for complying with an order under s 81. This occurred, for example, in Campaul Investments Pty Ltd v Contractors Bonding Ltd [2006] VCAT 177 at [27] and Cabouret v Reward Insurance Pty Ltd [2002] VCAT 1493 at [9].

What are relevant considerations?

The decision to order a non-party to produce documents is at the Tribunal’s discretion. There must be sufficient evidence that the non-party has, or is likely to have in their possession, a document that is relevant to the proceeding: s 81(1)(b) VCAT Act.

Normally, an order for production by a non-party is made when the non-party has the only copies of the particular documents sought, and the applicant has exhausted other avenues of obtaining the documents from the other party: see McLernon Group Insurances Pty Ltd v Biron Corporation Ltd [1995] FCA 1360 (Mclernon), cited in LWU v Country Fire Authority [2021] VCAT 127 at [17].

In McLernon, Nicholson J emphasis the rule is not intended for ordinary cases and should be exercised with caution.

However, in AB v CD [2007] VCAT 525, a sexual assault case, the Tribunal ordered production by a non-party under s 81 on the basis that the documents were more conveniently and efficiently obtainable by order under s 81, notwithstanding that some of the documents could also have been made available through discovery, a freedom of information (FOI) application or other means. The Tribunal considered that the documents would prove important at trial and that the complainant should not be required to wait until the documents are subpoenaed at trial to know what was in the documents.

You should, as appropriate, also consider the use of freedom of information processes to obtain information from non-parties if required.