Untitled document

Evidence (Document Unavailability) Act 2006

Act No. 53/2006

table of provisions

Section  Page

1.Purposes

2.Commencement

3.Part III heading substituted

4.New Division 9 of Part III inserted

Division 9—Document Unavailability

89A.Meaning of unavailability of document

89B.Court may make ruling or order

89C.Matters the court must consider

89D.Relationship of this Division with VCAT Act

89E.Operation of Public Records Act 1973

5.New section 158 inserted

158.Transitional provision—Evidence (Document Unavailability) Act 2006

6.New section 78A inserted—Victorian Civil and
Administrative Tribunal Act 1998

78A.Application of Division 9 of Part III of Evidence Act 1958—Document unavailability

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Endnotes

Evidence (Document Unavailability) Act 2006

[Assented to 15 August 2006]

The Parliament of Victoria enacts as follows:

1.Purposes

The purposes of this Act are—

(a)to amend the Evidence Act 1958 in relation to documents that are unavailable in civil proceedings; and

(b)to make a consequential amendment to the Victorian Civil and Administrative Tribunal Act 1998.

2.Commencement

(1)Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.

(2)If this Act does not come into operation before 1 September 2006, it comes into operation on that day.

3.Part III heading substituted

For the heading to Part III of the Evidence Act 1958 substitute—

"Part III—Proof of Documents, Proof of Facts by Documents and Document Unavailability".

4.New Division 9 of Part III inserted

After Division 8 of Part III of the Evidence Act 1958 insert—

"Division 9—Document Unavailability

89A.Meaning of unavailability of document

For the purposes of this Division, a document is unavailable in a civil proceeding if—

(a)the document is, or has been but is no longer, in the possession, custody or power of a party to the civil proceeding; and

(b)the document has been destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification (whether before or after the commencement of the proceeding).

89B.Court may make ruling or order

(1)If, in a civil proceeding, it appears to the court that—

(a)a document is unavailable; and

(b)no reproduction of the document is available in place of the original document; and

(c)the unavailability of the document is likely to cause unfairness to a party to the proceeding—

the court, on its own motion or on the application of a party, may make any ruling or order that the court considers necessary to ensure fairness to all parties to the proceeding, having regard to the matters set out in section 89C.

(2)Without limiting sub-section (1), a ruling or order may be—

(a)that an adverse inference will be drawn from the unavailability of the document;

(b)that a fact in issue between the parties be presumed to be true in the absence of evidence to the contrary;

(c)that certain evidence not be adduced;

(d)that all or part of a defence or statement of claim be struck out;

(e)that the evidential burden of proof be reversed in relation to a fact in issue.

89C.Matters the court must consider

Before making an order under section 89B, the court must have regard to—

(a)the circumstances in which the document became unavailable; and

(b)the impact of the unavailability of the document on the proceeding, including whether the unavailability of the document will adversely affect the ability of a party to prove its case or make a full defence; and

(c)any other matter that the court considers relevant.

89D.Relationship of this Division with VCAT Act

Despite anything to the contrary in the Victorian Civil and Administrative Tribunal Act 1998, this Division applies to a proceeding in the Tribunal within the meaning of that Act—

(a)as if a reference to a civil proceeding were a reference to a proceeding in the Tribunal; and

(b)a reference to the court were a reference to the Tribunal.

89E.Operation of Public Records Act 1973

Nothing in this Division affects the operation of the Public Records Act 1973.".

5.New section 158 inserted

After section 157 of the Evidence Act 1958 insert—

"158.Transitional provision—Evidence (Document Unavailability) Act 2006

Division 9 of Part III, as inserted by section 4 of the Evidence (Document Unavailability) Act 2006, applies to a civil proceeding commenced on or after the commencement of that Act, regardless of when the document was destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification.".

6.New section 78A inserted—Victorian Civil and Administrative Tribunal Act 1998

After section 78 of the Victorian Civil and Administrative Tribunal Act 1998 insert—

"78A.Application of Division 9 of Part III of Evidence Act 1958—Document unavailability

Despite section 98(1)(b), Division 9 of Part III of the Evidence Act 1958 applies to a proceeding commenced on or after the commencement of the Evidence (Document Unavailability) Act 2006, regardless of when the document was destroyed, disposed of, lost, concealed or rendered illegible, undecipherable or incapable of identification.".

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Endnotes

Minister's second reading speech—

Legislative Assembly: 31 May 2006

Legislative Council: 19 July 2006

The long title for the Bill for this Act was "to amend the Evidence Act 1958 and the Victorian Civil and Administrative Tribunal Act 1998 in relation to documents that are unavailable in civil proceedings and for other purposes."