How to prepare for the final hearing in a building dispute at VCAT

The hearing is a chance for you to present your case to the VCAT member by making submissions and putting forward the evidence which supports those submissions. This may include evidence from you and your witnesses, as well as any supporting documents you have.

By the time your matter progresses to hearing, usually you will have already participated in a mediation or a compulsory conference at VCAT. The preparation you will have done for the mediation or compulsory conference will be very useful for the VCAT hearing.

Before the hearing, prepare what you are going to say to the Tribunal, the questions you are going to ask your own witnesses, as well as questions you intend to ask the other party’s witnesses.

Preparation checklist:

• Notice of hearing: This document contains the date, time and location of your hearing
• COVID19 regulations: If there are any COVID19 restrictions in place, confirm the method in which your hearing will be proceeding
• Special requests: Tell VCAT if you have any special disability or technology needs.
• Points of claim: Provide VCAT and the other side a copy of your points of claim/defence within the timeframe directed by VCAT.
• Witnesses: Tell VCAT and the other side who you intend to call as your witnesses. Inform your witnesses of the hearing details and confirm their attendance. If you have any doubts that your witness might not attend, then you should obtain a ‘summons to appear’ and serve it on the witness.
• Witness statements: Provide VCAT and the other side a copy of the witness statements within the timeframe directed by VCAT.
• Expert Report: Provide VCAT and the other side a copy of any expert reports you intend to rely on within the timeframe directed by VCAT.
• Supporting documents: If required, provide VCAT and the other party with a list of documents relevant to your case (this will include documents which help you, and documents which might help the other party) within the timeframe directed by VCAT. The other party will be able to request copies of those documents.
• Other party’s documents: Ensure you read any documents provided to the other side, including witness statements, expert reports, and points of claim/defence.

At the VCAT hearing, the Applicant will be asked to make opening submissions first. The Respondent will then be given an opportunity to make their own opening submissions. Both sides will then call witnesses to support their case.

Once all the witnesses have been examined, all parties will have an opportunity to make closing submissions.

If a person you need as a witness cannot or will not attend willingly, you can ask VCAT to issue a ‘summons to appear’. This request must be made after VCAT sets a date for the hearing, but before the day of the hearing itself.  

Visit the VCAT website for information on how to file and serve a summons to appear form, and the fee required to issue the summons. 

At VCAT, orders will usually have been made at the directions hearing about when expert witness reports, and witness statements for laypersons must be filed.

You will know in advance which experts or witnesses the other party is going to call at the hearing. Usually, all of the Applicant’s witnesses will be called first, and then the Respondent’s witnesses.

Each witness will be examined in the following order:

1. Examination-in-chief: the party who called them will ask questions.
2. Cross-examination: the other party will then have a chance to ask questions to challenge the witness’s story.
3. Re-examination: the party who called the witness will have the option to ask a few more questions in response to the witness’s answers in cross examination.

How you question a witness will depend on whether you or the other party called the witness (explained further below).

The VCAT member cannot consider any information that has not been provided when making their decision. It is very important that your witnesses give evidence on all of the important matters in your case. Make a note of the information which you would like the VCAT member to hear from the witness.

Before the hearing, write a list of the questions you want to ask your witnesses.

• You should ask ‘open questions’ that allow the witness to tell their story. Try to start your questions with ‘who’, what’, when’, ‘where’, ‘how’ or or ‘why’
• When questioning your own witness, be careful not to ask questions that suggest the answer to the witness. These are known as leading questions. For example, a question that begins with ‘Isn’t it true that…’ is likely to be a leading question and may be objected to by the other party.
• Listen to the answers as you question your witness, and tick off each point as it is covered by your witness. Has your witness’s answer provided all of the information you want the VCAT member to consider?

You should think carefully about the questions you would like to ask the other party’s witnesses. The answers should either help your case or create doubt on the other party’s case. One way you can do this is to suggest a different version of events to the witness. For example, you can say: ‘I put to you that you said X to me’ or ‘I put to you that you did X’.

Don’t ask any rude questions or argue with the other party’s witness. Instead, try to challenge the other party’s case by asking leading questions, or questions that suggest an answer.

If you have filed affidavits or witness statements by witnesses who support your case, then the other party may wish to cross-examine those witnesses.

Remember:

• Do not ask leading questions when examining your own witnesses.  
• Do ask leading questions when you cross examine the other party’s witnesses.  

After your witness is cross-examined by the other side, you will have an opportunity to ask a few more questions on topics raised during cross-examination. With these questions, you can give the witness an opportunity to explain or correct anything raised during cross-examination.

The questions you ask in re-examination should also be open (‘who’, ‘what’, ‘when’, ‘where’, ‘how,’ or ‘why’) and cannot suggest an answer or ‘lead’ the witness.

VCAT is less formal than Courts, and the Tribunal won’t apply any strict rules about asking questions of witnesses.  

Even so, the other party may try to formally complain about the evidence a witness has given, the questions you are asking, or something else that occurs during a hearing.  This is known as an ‘objection’.   

If the other party raises an objection when you are questioning a witness, listen to the VCAT member and be guided by what they say. 

The objections may be on the grounds of:  

• Relevance: questions you ask need to be relevant to the dispute. 
• Hearsay: a witness can only give evidence about things they have personally observed or have direct experience of.  
• Opinion evidence: generally, a witness can only give evidence about things they have observed, and are not allowed to give their opinion on what the evidence means.  However, experts can give opinions but only in relation to the area in which they are an expert.  For example, a building expert can provide evidence about their opinion on whether a builder’s work is defective but cannot provide evidence about any other aspect of the dispute that they are not skilled in. 
• Improper, offensive, or repetitive questions: don’t ask questions that are misleading, confusing, annoying, harassing, intimidating, offensive, rude or inappropriate. 
• Privileged evidence: some evidence can’t be used at a VCAT hearing because it is “privileged”.  This can include legal advice, evidence about what the parties have said in trying to settle the dispute (if they have sent you a letter with the words “without prejudice” that includes an offer of money to settle the dispute), and evidence given by a witness about a crime they have committed.