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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Evidence (Document Unavailability) Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Part III heading substituted 2
4. New Division 9 of Part III inserted 2
Division 9--Document Unavailability 2
89A. Meaning of unavailability of document 2
89B. Court may make ruling or order 3
89C. Matters the court must consider 4
89D. Relationship of this Division with VCAT Act 4
89E. Operation of Public Records Act 1973 4
5. New section 158 inserted 5
158. Transitional provision--Evidence (Document
Unavailability) Act 2006 5
6. New section 78A inserted--Victorian Civil and
Administrative Tribunal Act 1998 5
78A. Application of Division 9 of Part III of Evidence Act
1958--Document unavailability 5
ENDNOTES 6
i
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
PARLIAMENT OF VICTORIA
A BILL
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.
Evidence (Document Unavailability) Act
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
5
(b) to make a consequential amendment to the
Victorian Civil and Administrative
Tribunal Act 1998.
1
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
Evidence (Document Unavailability) Act 2006
s. 2
Act No.
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
5
day.
3. Part III heading substituted
See: For the heading to Part III of the Evidence Act
Act No.
1958 substitute--
6246.
Reprint No. 14
as at
"PART III--PROOF OF DOCUMENTS, PROOF
10 6 June 2002
OF FACTS BY DOCUMENTS AND DOCUMENT
and
amending UNAVAILABILITY".
Act Nos
20/2004,
4. New Division 9 of Part III inserted
60/2004 (as
amended by
After Division 8 of Part III of the Evidence Act
No. 18/2005),
72/2004,
1958 insert--
15 108/2004,
15/2005,
18/2005,
"Division 9--Document Unavailability
75/2005,
97/2005,
2/2006 and 89A. Meaning of unavailability of document
14/2006.
LawToday:
For the purposes of this Division, a
www.dms.
document is unavailable in a civil proceeding
dpc.vic.
gov.au
if--
20
(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,
25
disposed of, lost, concealed or rendered
illegible, undecipherable or incapable
of identification (whether before or
after the commencement of the
proceeding).
30
2
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
Evidence (Document Unavailability) Act 2006
s. 4
Act No.
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
5
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--
10
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
15
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
20
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;
25
(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.
3
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
Evidence (Document Unavailability) Act 2006
s. 4
Act No.
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
5
(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
10
make a full defence; and
(c) any other matter that the court
considers relevant.
89D. Relationship of this Division with VCAT
Act
15
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--
20
(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.
25
89E. Operation of Public Records Act 1973
Nothing in this Division affects the operation
of the Public Records Act 1973.".
4
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
Evidence (Document Unavailability) Act 2006
s. 5
Act No.
5. New section 158 inserted
After section 157 of the Evidence Act 1958
insert--
"158. Transitional provision--Evidence
(Document Unavailability) Act 2006
5
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
10
when the document was destroyed, disposed
of, lost, concealed or rendered illegible,
undecipherable or incapable of
identification.".
See:
6. New section 78A inserted--Victorian Civil and
15 Act No.
Administrative Tribunal Act 1998 53/1998.
Reprint No. 4
After section 78 of the Victorian Civil and as at
1 March 2006
Administrative Tribunal Act 1998 insert-- and
amending
"78A. Application of Division 9 of Part III of Act Nos
Evidence Act 1958--Document
20 16/2005,
49/2005,
unavailability 61/2005,
97/2005,
Despite section 98(1)(b), Division 9 of 14/2006,
Part III of the Evidence Act 1958 applies to 16/2006,
22/2006,
a proceeding commenced on or after the 23/2006 and
commencement of the Evidence (Document 24/2006.
25
LawToday:
Unavailability) Act 2006, regardless of www.dms.
when the document was destroyed, disposed dpc.vic.
gov.au
of, lost, concealed or rendered illegible,
undecipherable or incapable of
identification.".
30
5
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
Evidence (Document Unavailability) Act 2006
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
6
551423B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
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