Housing and Tenancy

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Summons to give evidence or produce documents

An alternative to an application for directions (for production of documents) might be to apply for a summons under the VCAT Act (s 104(1)). This is an option once VCAT has set a hearing date (see VCAT 'Summons to Appear' form).

Is a summons appropriate?

Lawyers may need to be careful 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 tenant's preparation.

Another potential downside to a summons are the fee implications. There is an issuing fee (currently $12 each, although you may want to call VCAT to confirm) for each summons issued 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 VCAT (see section 104(4).

How do you apply for a summons?

To apply for a summons, you need to complete a 'Summons to Appear' form (Form 4 in Sch 2 of the VCAT Rules) and take 3 copies to VCAT where the Registrar will check the date of the hearing and sign and stamp the summons. A pro forma summons document is available from the VCAT website, here.

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 (see VCAT 'Summons to Appear' form; r 4.15(1) VCAT Rules). You need to provide conduct money to the witness, being a reasonable sum to enable the witness to get to VCAT (see VCAT 'Summons to Appear' form; r 4.15(2) VCAT Rules).

After serving the summons, you need to complete and sign an affidavit of service (included in the above attachment) and return it to VCAT with a copy of the summons.  Remember to keep a copy of this material.

What are relevant considerations?

The decision to issue the summons is at VCAT'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 (unreported, VCAT, Judge Wood VP, 18 August 1998 at [12]).

The summons may be quashed by VCAT upon application of the summonsed party or on VCAT'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?

There are currently no prescribed fees and allowances however a person who attends VCAT may only be paid any fees where this is determined by VCAT (section 104(4) VCAT Act). It has been held that 'fees and allowances' does not cover legal fees but does cover the costs of attending VCAT, loss of private business time and car parking: Victoria v Bradto Pty Ltd [2006] VCAT 685.