Evidence (Document Unavailability) Bill

Evidence (Document Unavailability) Bill

Introduction Print

EXPLANATORY MEMORANDUM

551423

BILL LA INTRODUCTION 30/5/2006

Clause Notes

Clause 1provides that the purposes of the Bill are to amend the Evidence Act 1958 in relation to documents that are unavailable in civil proceedings and to make a consequential amendment to the Victorian Civil and Administrative Tribunal Act 1998.

Clause 2provides for the Bill to commenceon a date to be proclaimed. Ifthe Bill is not proclaimed before 1 September 2006, then it willcome into operation on that day.

Clause 3substitutes the heading to Part III of the Evidence Act 1958 to include a reference to document unavailability.

Clause 4inserts a new Division 9 into Part III of the Evidence Act 1958 to provide for document unavailability (new sections 89A–89E).

New section 89A

New section 89A defines the meaning of unavailability of a document. For the purposes of this new Division, a document is unavailable if it is, or has been but is no longer, in the possession, custody or power of a party to a civil proceeding and 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).

New section 89B

New section 89B provides that if in a civil proceeding it appears to the court that a document is unavailable, that there is no available copy of the original document and that the unavailability of the document is likely to cause unfairness to a party to the proceeding, the court may make any ruling or order it considers necessary to ensure fairness to all parties to the proceeding.

The court may make such a ruling or order either on its own motion or on the application of a party to the proceeding.

Rulings or orders that the court may make in exercising its powers under this section include—

• drawing an adverse inference when a document is unavailable;
• presuming a fact in dispute between the parties to be true in the absence of evidence to the contrary;

• preventing certain evidence from being led;

• striking out all or parts of a defence or a statement of claim; or

• reversing the evidential burden of proof.

New section 89C

This new section sets out the matters that a court must consider before exercising its judicial discretion under section 89B. Thosematters are—

• the circumstances in which a document became unavailable;
• 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

• any other matter the court considers relevant.

The kinds of matters and circumstances a court might consider include—

• whether litigation was contemplated or should reasonably have been anticipated at the time a document was rendered unavailable;

• the reasons a document is unavailable;
• whether a party knew, or could reasonably have known, that the documents contained, or may have contained, evidence of legal wrongdoing or a breach of legal obligations;

• the nature of the relevant party's activities, its size and mode of operation, organisational sophistication, and its litigation history.

New section 89D

New section 89D establishes the relationship of new Division 9 to the Victorian Civil and Administrative Tribunal Act 1998. Despite anything to the contrary, any reference in Division 9 to "a civil proceeding" is taken to be a reference to a proceeding in the Tribunal and a reference to "the court" is taken to be a reference to the Tribunal for the purposes of the Victorian Civil and Administrative Tribunal Act 1998.

New section 89E

New section 89E provides that nothing in this Division affects the operation of the Public Records Act 1973.

Clause 5inserts a new section 158 into the Evidence Act 1958.

New section 158

This new section is a transitional provision. It provides that Division 9 of Part III will apply to a civil proceeding commenced on or after the date of 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.

As the legislation is prospective, the rights of parties to any proceedings that may have commenced before the commencement of the legislation will not be affected.

Clause 6inserts new section 78A into the Victorian Civil and Administrative Tribunal Act 1998. Itprovides that Division 9 of Part III of the Evidence Act 1958will apply to a proceeding before the Tribunal commenced on or after the date of commencement of the Evidence (Document Unavailability) Act 2006, regardless of when the document was destroyed, disposed of, lost, concealed or rendered illegible, undecipherableor incapable of identification.

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