Summons a witness

A summons is a legal document that says someone must produce documents or appear at VCAT on a certain date to give verbal evidence.

Temporary changes

Temporary laws in response to the COVID-19 pandemic have changed the way someone can respond to a summons. The person summonsed may attend a VCAT hearing by phone or videoconference, and can send summonsed documents to VCAT by email.

In the Summons to appear form, you can ask a person to:

  • be a witness and speak at a hearing - what we call ‘to give evidence’
  • provide documents
  • provide other evidence (select ‘produce documents’ on the form).

Before you apply, ask the person to be a witness or provide the evidence you believe is relevant to the case. If the person refuses, you can apply to VCAT for a summons.

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.

There are costs to apply for a summons, including a VCAT fee and covering costs of the person summonsed.

Find out what to do if you've been summons to VCAT

Steps to ask for and send (serve) a summons

We must first set a date for a hearing before a party can ask us to issue a summons to appear. The hearing could be:

  • a short directions hearing to return the documents – the parties can inspect and copy the documents and use them to prepare for the final hearing
  • a longer hearing if it’s a summons to give evidence.

Any party to a case can ask for a summons. Other parties or the summonsed witness can object to the summons request. For example, the person summonsed may claim they don’t have documents that the applicant thinks they have. Or another party can argue that the evidence being summonsed isn’t relevant to the case.

We may refuse to issue a summons. If the witness or another party objects to the summons, we decide on objections at a hearing. We can overrule an objection when we believe the evidence is vital to the case.

Seven steps to summons a witness

1

Fill out the Summons to appear form.

Make sure you correctly address the summons.

If you’re asking someone to provide documents or other physical evidence, you must list them in the form and describe them in specific detail  in the form.

If you need a witness or evidence from someone who is outside Victoria, you must take extra steps to apply.

2

File the summons with VCAT. You can do it in person at our head office or email it to us.

If you file it in person, you must give us three copies of the summons. We keep the original summons and give you back the copies, sealed with the VCAT stamp.

3

If we grant your summons, pay the fee for us to issue it.

4

Send the summons. We call this ‘serving the summons’. Depending on who the summons is for, there are specific ways to send (serve) the summons.

You also need to give the person you summons ‘conduct money’ or payment to cover their travel costs and other costs of coming to VCAT.

You must also send (serve) a copy of the summons to each party after you send (serve) to the witness.

5

Complete the affidavit to confirm that you sent (served) the summons according to the law. This is when you swear and sign an oath in front of an authorised witness.

If you serve the summons to a person or company, use the Affidavit of Service form. In this download, there is a list of some of the people who are authorised to witness your affidavit.

This form may not be appropriate if you need to serve the summons to a company or unincorporated association. You may want to draft your own affidavit.

The Department of Justice and Community Safety has information about how to complete an affidavit and who is authorised to witness you sign it

6

Send the signed affidavit to us with a copy of the summons to appear, or bring them to the first hearing you attend.

7

Pay the summonsed witness’s expenses so they can come to VCAT.

How to address a person or company in a summons to appear form

Identify the person or the company to be summonsed very carefully.

  • If it’s an individual you want to come to VCAT as a witness, address them by name
  • If it’s a company you want to produce a document or other evidence, use the company name.

When you want to summons documents from a company, make sure name the company in the summons, not a representative of the company.

If you have a contact person you want it delivered to, you can direct it to them. For example:

This Company Pty Ltd
c/o Contact name
King Road
Melbourne Vic 3000

When you need a witness or evidence from outside Victoria

You can apply to summons a witness or evidence from outside Victoria. This is also called a ‘subpoena’.

Only our president and vice presidents can issue interstate summonses.

There are two extra steps you must take when you apply. Together with your summons form, fill out and give us:

What to include in an affidavit to support your application

You must write and swear to an affidavit. In your affidavit you must wear that:

  • it’s in the interest of justice for the witness to give evidence in person or provide evidence such as documents
  • there is enough time for the witness to follow the summons without hardship or inconvenience
  • the witness is only required to attend to provide documents or other physical evidence.

See a sample affidavit in support of an interstate summons to appear.

How to fill out and send Form 5 - Notice to witness who is outside Victoria

Form 5 - Notice to witness who is outside Victoria sets out the rights and obligations of the witness being served.

You must fill it out and give it to us with your application.

In the form:

  • the ‘date of compliance’ is the same as the date you write on the Summons to Appear form
  • the ‘person at whose request the subpoena was issued’ is your name.

What to send to the person summonsed from interstate

You can only send the interstate summons after:

  • one of our vice presidents approves the summons and makes an order
  • we issue you the summons with the VCAT seal stamped on it.

After that happens, send the witness:

  • the signed summons with the VCAT seal
  • the completed Form 5 that we’ve returned to you
  • the order from us that approves the summons.

We may make an order that says the summonsed person doesn’t have to come to VCAT if they give us the evidence by the date we set.

See example orders for summons to appear when recipient is interstate.

How to send (serve) the summons

You must send (serve) a copy of the summons that has the VCAT seal. You must serve it with enough time for the witness to prepare the evidence for a hearing.

You can’t send a summons to a PO Box address.

When you serve the summons, you must also give the witness enough money to cover their expenses.

You must also send (serve) a copy of the summons to each party after you send (serve) to the witness. You do not need to send parties a sealed copy. You can send it via email, by post, or deliver it in person.

To an individual

There are three ways you can send (serve) a summons to an individual:

  • deliver it personally
  • send it by post, email or fax to the person at their usual or last known residential or business address, or
  • leave it at the person’s usual or last known residential or business address with a person on the premises who appears to be at least 16 years old and lives or is employed there.

To a company

There are three ways you can send (serve) a summons to a company:

  • deliver it personally to the registered address as shown on the ASIC Current Company Extract
  • send it by post to the registered address as shown on the ASIC Current Company Extract
  • in any other way documents can be sent to a company. For example, if ASIC gives you other information about how to contact them.

The registered address may be different to the company's principal place of business address or any address shown on the company's letterhead.

To an incorporated association

To send (serve) a summons to an incorporated association, send it by post, email or fax to the address or number shown on the Incorporated Association Extract.

Expenses you may need to pay to a summonsed witness

You must cover expenses for a witness to travel to VCAT or to send evidence to us. We call this ‘conduct money’. How much to pay depends on who you summons and what you want them to do. It is different for each summons. Give the person summonsed this money when you summons them, or as soon as possible after you send (serve) the summons. If you don’t, the summons could be invalid.

For example, you may need to pay them for:

  • return travel between the person’s home or workplace and VCAT
  • accommodation, if they have to stay overnight
  • printing or photocopying costs.

You can give them money or an equivalent such as pre-paid travel. You must organise with the person you summons how and when you will pay their expenses.

After responding to the summons, the person summonsed can ask us to make an order that you pay extra costs, for example, the cost of retrieving documents. We consider the witness’ reasons for needing extra payment. We then make a decision on whether we agree that you should pay those additional costs.

What to do if you’ve been summonsed

If you get a summons and you want to object, you must send us your objection in writing as soon as possible after you receive the summons.

If you don’t object, or your objection isn’t approved as you don’t have a lawful reason to miss the hearing, we may issue a warrant for your arrest.

Related pages

Prepare evidence

Evidence helps you prove your side of the story and helps the VCAT member to decide how the matter should be resolved.

Witness 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.

Hearing room technology

VCAT offers a range of hearing room technology options to assist all Victorians to access fair and efficient justice.