Legal Claims, Subpoenas, Summonses and Other Legal Documents

Policy

The purpose of this policy is to outline the action schools must take in responding to legal claims, subpoenas, summonses to produce documents or appear as a witness in court and other legal documents and to explain the Department’s process for responding to claims of negligence.

Summary

• All legal matters involving schools (such as legal claims, subpoenas, summonses, writs, letters from lawyers) should be immediately referred to the Legal Division for advice and support. The exception to this is claims for workers’ compensation (refer to Workers’ Compensation for advice on management of workers’ compensation claims).
• The Department does not accept responsibility for costs relating to harm or property damage incurred at school or a school activity except where it is determined that a school has failed to adequately discharge its duty of care.
• Generally staff should not provide a written statement, produce documents, or give evidence in a legal proceeding unless they have received a subpoena, summons to produce documents or a witness summons.
• If a school or school staff member receives a legal document such as a subpoena or summons, there are likely to be specific compliance and timing requirements and the Legal Division should be contacted as soon as possible.

Details

All legal documents received by and involving a school, including subpoenas, summonses, writs, claims, letters from lawyers and any other legal matters or correspondence should be immediately referred to the Legal Division by emailing legal.services@education.vic.gov.au or calling (03) 9637 3146. The exception to this is a claim for workers’ compensation. For information on responding to a claim for workers’ compensation, refer to: Workers’ Compensation.

Negligence claims process

The Department does not carry accident insurance for accidental injuries or accidental property damage. However, in some circumstances medical or other expenses will be paid by the Department where it is assessed that it is likely, in all the circumstances, that the Department is liable for negligent acts or omissions of its staff/volunteers.

Process

The following steps outline how negligence claims (personal injury and property damage) are processed:

Step 1

Principals should advise people who wish to make a claim (e.g. parents, neighbours, members of the public) for medical or other expenses of the following information:

• The claim should be set out in writing, and give as much detail as possible about the circumstances of the incident, and the reasons why the claimant believes that the Department is liable for the expenses.
• The claim should attach evidence of the expenses being claimed, which can include estimates of likely future expenses not yet incurred.

The written claim should then be forwarded to:

legal.services@education.vic.gov.au
Subject line: New Claim

or

Legal Division — Department of Education and Training
GPO Box 4367
Melbourne 3001

If a Principal receives any writs, demands or claims for compensation arising from personal injury or property damage, they should immediately refer the matter to Legal Division at the above address, along with copies of all relevant documents (for example correspondence from claimants or lawyers, writs, statements of claim or complaints).

Under no circumstances should school staff make any admission, offer, promise or payment in relation to a claim or demand which has been received. It is also not appropriate for school staff to comment or give their opinion on whether the claim is or is not likely to be successful. This is because each claim is assessed individually.

Step 2

No further action is required by the Principal until they are contacted by Legal Division, a representative of the Department’s external claims agency or the Department’s external lawyers.

Principals should cooperate fully with the external claims agency’s investigations and any external lawyers engaged by the Department to ensure that claims are investigated and finalised promptly.

If Principals have any questions in relation to the process, they should contact the Legal Division.

Step 3

The Legal Division will provide appropriate advice and assistance to schools involved in personal injury and property damage claims, and coordinate as necessary with Region and other areas of the Department – in particular where the claim is litigated and/or complex and poses ongoing challenges for the school.

When dealing with a claim or complaint the Department will, in certain situations, provide information to a law enforcement agency (such as Victoria Police). In all circumstances, the Department will comply with its legal obligations regarding confidentiality, use and disclosure of personal information.

As a party to legal proceedings, the Department is guided by Victoria’s Model Litigant Guidelines and Common Guiding Principles. A copy of these can be found on the Department of Justice and Community Safety website, refer to Model Litigant Guidelines and Common Guiding Principles.

Policy templates for schools

A downloadable policy template for Victorian government schools on personal property in the school is available on the School Policy Templates Portal at Personal Property (staff login required). Schools can modify the template to suit their local circumstances

A downloadable policy template for Victorian government schools on insurance is also available to schools on the School Policy Templates Portal at Insurance (staff login required). Schools can modify the template to suit their local circumstances.

Subpoenas and summonses

Generally, staff should not provide a written statement, provide documents to a court or to a person for use in a legal proceeding, or give evidence in a legal proceeding unless they have received a subpoena or summons to produce documents or give evidence at court.

Any staff member who receives a request to provide a written statement, produce documents, or give evidence, should immediately contact the Legal Division for advice and assistance.

Any staff member who has been served with a subpoena, summons to produce documents or a witness summons should immediately contact the Legal Division for advice and assistance in complying with their legal obligations.

What is a subpoena or summons?

A subpoena or summons is a legal document that:

• has been issued by a court, tribunal or a similar body
• is addressed to an individual, an office holder, or a nominal person and served appropriately on that person
• requires an individual to produce specific documents to a court and/or to attend a court or tribunal to give evidence, providing a specific date, time and place for the individual to do so
• relates to a legal proceeding that the individual may not be involved in

Complying with a subpoena or summons

Providing information to a court or tribunal in compliance with a subpoena or summons is an exemption under privacy legislation — Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic).

However, there are some limited circumstances in which a court may not enforce compliance with a subpoena or summons, or be comfortable with the production of redacted documents. The Legal Division can provide advice and assistance in relation to this.

There are strict time limits for compliance so it is important to obtain legal advice as soon as possible after staff have received the subpoena or summons.

There can be serious consequences for not complying with a subpoena or summons.

Requests from lawyers and non-legal advocates for student information

When schools or individual staff members receive a request for student information by a lawyer or non-legal advocate, schools must follow the Department’s policy on requests for student information. Refer to Requests for Information about Students.

Related policies

• Duty of Care
• Personal Liability of School Employees
• Reporting and Managing School Incidents
• Requests for Information about Students
• Volunteers in Schools
• Workers' Compensation

Relevant legislation

• Health Records Act 2001 (Vic)
• Privacy and Data Protection Act 2014 (Vic)

Guidance

There is no further guidance for this topic. For more information, refer to Resources tab.

Resources

Policy templates for schools

A downloadable policy template for Victorian Government schools on personal property in the school is available on the School Policy Templates Portal at:

• Personal property (login required)
  Schools can modify the template to suit their local circumstances.

A downloadable policy template for Victorian Government schools on insurance is also available to schools on the School Policy Templates Portal at:

• Insurance (login required)
  Schools can modify the template to suit their local circumstances.

Victorian government guidelines for legal proceedings

As a party to legal proceedings, the Department is guided by Victoria’s Model Litigant Guidelines and Common Guiding Principles. A copy of these can be found on the Department of Justice and Community Safety website, refer to:

• Model Litigant Guidelines
• Common Guiding Principles