An alternative to an application for directions for production of documents under s 80 Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) (see Evidence) is to apply for a summons under s 104(1) VCAT Act.
The Tribunal needs to have set a hearing date for a summons to be issued. This is an option once the Tribunal has set a hearing date. Summonses under s 104 VCAT Act should be in the form prescribed in the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (VCAT Rules) Schedule 2 Form 1.
Is a summons appropriate?
Care should be taken when deciding to issue a summons because it will generally be returnable at the hearing date. This means that any evidence will not be available for consideration in advance of the hearing and this may affect the renter’s preparation.
Another potential downside to a summons are the fee implications. There is an issuing fee for each summons issued ($23.70 as at February 2021, see the Tribunal’s fees) and ‘conduct money’ for the equivalent of a public transport fare. There is also a prospect that ‘prescribed fees and allowances‘ may be provided for by the Tribunal to a person who attends the hearing in answer to the summons: ss 104(4), (5) VCAT Act (see below).
To apply for a summons, you need to complete a ‘Summons to Appear’ form and file the summons either in person at the Tribunal or by email (renting@vcat.vic.gov.au for the residential tenancies list). If you file the summons in person three copies should be provided to the Registrar, who will check the date of the hearing and sign and stamp the summons.
You are required to serve a copy of the summons on the witness within a reasonable time prior to the hearing, and in a manner in accordance with s 140 of the VCAT Act; VCAT Rules r 4.20. You need to provide conduct money to the witness, being a reasonable sum to enable the witness to attend the Tribunal: VCAT Rules r 4.20(3).
After serving the summons, you need to complete and sign an affidavit of service and return it to the Tribunal with a copy of the summons. Remember to keep a copy of this material.
Note that special rules apply if you wish to summons a witness or evidence from outside Victoria, see the Tribunal’s guidance.
What are relevant considerations in determining whether to issue a summons?
The decision to issue the summons is at the Tribunal’s discretion. The critical issue is ‘whether or not there is evidence capable of being relevant to any of the issues in the case which can be extracted from [the witness]’ (Hulls v Victorian Casino and Gaming Authority (unreported, AAT of Victoria, Judge Fagan P, 15 July 1997), endorsed in Bracks v Department of State Development [1998] VCAT 315 (1 October 1998) at [12].
The summons may be quashed by the Tribunal on application of the summonsed party or on the Tribunal’s own initiative, if: (see J Pizer’s Annotated VCAT Act at [VCAT.104.140]
the witness is not able to give relevant evidence,
the documents sought are not relevant,
the summons is oppressive,
the summons was not issued bona fide, or
the summons otherwise constitutes an abuse of process.
When will prescribed fees and allowances be payable?
Section 104(4) VCAT Act provides that a person who attends the Tribunal in answer to a summons is entitled to be paid the prescribed fees and allowances or, if no fees and allowances are prescribed, the fees and allowances (if any) determined by the Tribunal.
There are currently no prescribed fees and allowances under the VCAT Rules. Accordingly, a person who attends the Tribunal may only be paid any fees where this is determined by the Tribunal. It has been held that ‘fees and allowances’ does not cover legal fees but does cover the costs of attending the Tribunal, loss of private business time and car parking: Victoria v Bradto Pty Ltd [2006] VCAT 685.