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EVIDENCE (DOCUMENT UNAVAILABILITY) BILL 2006

         Evidence (Document Unavailability) Bill

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                Clause Notes
Clause 1    provides 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 2    provides for the Bill to commence on a date to be proclaimed.
            If the Bill is not proclaimed before 1 September 2006, then it
            will come into operation on that day.

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

Clause 4    inserts 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.



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551423                                         BILL LA INTRODUCTION 30/5/2006

 


 

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. Those matters 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; 2

 


 

· 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 5 inserts 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 6 inserts new section 78A into the Victorian Civil and Administrative Tribunal Act 1998. It provides that Division 9 of Part III of the Evidence Act 1958 will 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, undecipherable or incapable of identification. 3

 


 

 


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