Housing and Tenancy

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Evidence

It can sometimes be overlooked that evidence should play a significant role in the determination of disputes at VCAT. 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. The Clinic often deals with landlords who refuse to provide evidence to support their application. For example in compliance matters where it is alleged the tenant disturbed the peace of neighbours, the landlord often refuses to disclose particulars of the complaint (Who? When? Where?) which would enable the tenant to respond.

Do the rules of evidence apply?

Generally speaking, VCAT is not bound by the rules of evidence or any practices or procedures applicable to courts of record (section 98(1)(b)). Furthermore, section 98(1)(c)  also provides that VCAT 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.

Despite this overarching flexibility, the rules relating to evidence should not be disregarded altogether and they may effect 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 VCAT, 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. For example, where the other party fails to call a witness they might be expected to call, you might submit the Tribunal is entitled to make an inference that the witness would not have assisted the other party's case (Jones v Dunkel rule).

How can evidence be compelled at VCAT?

The right to a fair hearing may also be raised in a request for production of documents under

  • Section 80(1) of the 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.' Note this section specifically refers to the concept of a fair hearing.
  • Section 104 of the 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.

Commentary to the VCAT Act suggests section 80(1) may only be exercised by a Member of the Tribunal and is of 'wide ranging' application that can extend to require a party to produce documents: Lincoln v Transport Accident Commission[1]

How is 'fairness' relevant to evidence?

As discussed above, sections 97 and 98 of the VCAT Act specifically state that VCAT must act fairly and according to the rules of natural justice. Furthermore, we refer again to the right to fair hearing in the Charter and note that the directions power in section 80 of the VCAT Act also refers to fairness.

As discussed in fairness, 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, 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.'[2] An important aspect of this is being able to receive all relevant information in relation to the case to be met before preparing a reply. The General Comment 32[3] noted the right to equality before the courts (which features in section 8 of the Charter) 'ensures equality of arms'[4] and that '[t]he p[rinciple 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.'[5]

What procedure should be undertaken

A 'paper trail' is important for lawyers seeking to rely on the right to a fair hearing and in general it is good to:

  1. write and request information from the landlord, and then
  2. apply for an order under section 80(1) of the VCAT Act.

Example: Where a tenant 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 landlord to request the relevant information on the basis of procedural fairness (making reference to the VCAT Act, the Practice Note and the Charter) - that is, to enable the tenant to prepare for the hearing in this matter. The letter should note that if the material is not provided an application may be made to VCAT 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 Order (Form 2, Sch 2 VCAT Rules) should be used (r 4.03 VCAT Rules). The application should be filed with VCAT and a copy served on the other party within 7 days of filing (s 72 VCAT Act; r 4.07 VCAT Rules).

Note: such an approach will obviously depend on the circumstances and would not, for example, be relevant where a "no reason" notice to vacate has been issued.

VCAT should convene a hearing of the parties to hear submissions before it makes directions (Buttigieg v Melton Shire Council (2004) 22 VAR 1 at [54]). VCAT will consider whether the orders sought are 'necessary for the expeditious or fair hearing and determination of a proceeding' (s 80(1) VCAT Act).


[1] Unreported, VCAT, Judge Strong VP, 12/10/11

[2] [2008] VSC 1 at

[3] General Comment 32 relates to the right to a fair hearing in article 14 of the ICCPR. We note that the right to a fair hearing in section 24 of the Charter.

[4] General Comment 32 at para 13

[5] General Comment 32 at para 13