Housing and Tenancy

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Obtaining information or documents from non-parties

If relevant information or documents is being sought from a non-party, you may apply for a summons under s 104 or an order to produce under s 81 of the VCAT Act.

An order to produce under s 81 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 (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]; VCAT Information Bulletin for Retail Tenancies List, dated 13 July 2007)).

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.

The applicant may be ordered by VCAT to pay the costs of the third party for complying with an order under s 81 (eg in Campaul Investments Pty Ltd v Contractors Bonding Ltd [2006] VCAT 177 at [27]; 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 VCAT'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 (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]).

However, in AB v CD [2007] VCAT 525, a sexual assault case, VCAT 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, an FOI application or other means. VCAT 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.