Witnesses and witness statements
Find out about different types of witnesses and what’s involved if you are asked to be a witness in a VCAT case.
A witness is a person, including you, who gives evidence at a hearing, either in person or in writing. They must have first-hand knowledge of the facts they’re giving evidence about.
An expert witness is a person with specialised knowledge. They give evidence relevant to the case based on their expertise. The primary duty of an expert witness is owed to VCAT, not to the person who paid for their services.
The best way to give evidence is in person at the hearing.
Prepare questions in advance
You have the right to question witnesses, so prepare a list of questions. You can question a witness called by the other party (cross-examine). You can also question a witness you called to clarify the evidence they gave under cross-examination.
An expert witness is a person with specialised knowledge based on their training, study or experience.
We may rely on the evidence from expert witnesses to make a finding about a specialised or technical matter relevant to the case.
The expert’s opinion should be sound, complete, fair, unbiased and within the area of their expertise. The expert must read, and state they have read, VCAT’s Practice Note on expert evidence.
The expert witness has a duty to VCAT to provide fair evidence, rather than to act as an advocate for the party who asked them to appear.
At the hearing, both parties and the member may ask the expert questions.
An expert witness may provide a report. We expect the expert to attend the hearing to discuss their report.
Any party can bring an expert witness to present evidence at a hearing.
When a witness can’t attend
Each party must have a reasonable opportunity to cross-examine another party’s witness. We generally don’t accept key witness evidence without the attendance of the witness, unless all parties agree.
If a witness can’t attend the hearing in person, they can:
- attend the hearing by telephone or video conference
- in some cases, give written evidence in an affidavit or statutory declaration.
Written evidence from a witness must be completed truthfully, accurately and clearly, and sworn or affirmed as true and correct.
A written statement from a witness on its own may not be as useful or have the same weight as the witness appearing in person. This is because the other parties can’t question the witness who created the document.
You may be able to summons a person to appear as a witness if that person will not attend willingly.
A witness statement is a document that sets out the evidence a witness, including you, will give at a hearing. At the hearing, each witness is asked to ‘swear’ or to ‘affirm’ that their statement is true and correct.
In most cases, you only have to prepare a witness statement when we order you to do it. Often this order is given at a directions hearing.
How to prepare a witness statement
When a witness prepares a statement, they must:
- state their name, address and occupation at the beginning
- set out all the evidence they intend to give at the hearing in numbered paragraphs, in date order
- sign and date the document.
Give your witness statement to VCAT and the other parties
Before the hearing, you must send a copy of your witness statement to VCAT and the other party. If we’ve ordered you to provide the statement, the order will say when you have to send it to us and the other party.
If you refer to documents in the witness statement, you must attach those documents to the end of the statement – we call this an ‘exhibit’.
Summons a witness or evidence
A summons is a legal document that says someone must produce evidence or appear at VCAT on a certain date. Only summons a witness if that person is likely to give evidence or produce documents that are relevant to the case.
If you summons a person who can’t give relevant evidence or you do it for an improper purpose, we may set aside the summons and you may have to pay costs.
Before you ask us for a summons, ask the person to provide the evidence or relevant documents. If the person refuses, you can ask us to issue a summons.
The person summonsed must attend the hearing (usually by phone or video conference).
Evidence helps you prove your side of the story and helps the VCAT member to decide how the matter should be resolved.
Summons a witness
You can ask VCAT to make someone produce documents, or appear at VCAT on a certain date to give verbal evidence.
How to communicate with VCAT and other parties
Understand when and how to communicate with VCAT and any other parties involved in your case.