What is a notice to admit in legal proceedings?

A notice to admit is a formal document which, when served appropriately, requests another party to legal proceedings to admit facts or documents specified within the notice.  It is a tool which may be used in conjunction with pleadings, such as a Statement of Claim, to assist in determining the live issues in dispute between parties.  The idea is that this can lead to the expeditious resolution of issues and costs savings to litigants.

The law in Queensland

Rule 189 of the Uniform Civil Procedure Regulations 1999 (Qld) (UCPR) establishes a notice to admit, providing as follows:

189 Notice to admit facts or documents

• A party to a proceeding may, by notice served on another party ask the other party to admit, for the proceeding only, the facts or documents specified in the notice.
• If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice.
• The other party may, with the court’s leave, withdraw an admission taken to have been made by the party under subrule (2).
• If the other party serves a notice under subrule (2) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is proved in the proceeding, the party must pay the costs of proof, unless the court otherwise orders.

The mechanics of the law break down to simply allow a notice to be served and replied to, with such reply containing either admissions or denials of particular allegations.  The notice puts a time limit on the recipient, fourteen (14) days, during which if they fail to reply as outlined above, they will be taken to have admitted the facts alleged in the notice.  Admissions may be withdrawn however but as will be discussed; courts are generally guarded against allowing parties to withdraw an admission.

What falls out of a reading of the above is that notices to admit may extricate the positions and points of dispute (and perhaps agreement) between parties to litigious proceedings.  Ideally, having served respective notice and reply, parties will have an understanding of the issues to be tried.  There are myriad benefits afforded to the litigator who resolves these matters throughout the course of litigation.  Least among these benefits are costs saved in the proceeding, but also compliance with a litigant’s obligations under the UCPR and the benefit of having an opponent’s pleaded case.

What does a notice to admit look like in Queensland?

A notice to admit may either be in respect of documents (Form 22) or, more broadly, of facts (Form 32).  A notice to admit documents provides a brief description of the documents alleged and the date on which they were drafted.  A notice to admit facts explicitly sets out in numbered paragraphs the material facts alleged and seeking to be admitted.

The philosophy of the UCPR

It ought to be noted that the use of notices to admit as a preliminary step accords strongly with the philosophy of the UCPRs, which are provided in rule 5:

“5 Philosophy – overriding obligations of parties and court

• The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
• Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
• In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
• The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court”.

Use of a notice may further a litigant’s commitment to proceed expeditiously, avoid undue delay and, resultantly minimise expense.  These end results are premised on the theory that early communication and identification of issues between the parties can often result in the resolution of issues without the need to draft more substantial pleadings, attend at various conferences/mediations and, ultimately, before the courts to have the issues publicly ventilated.

Facts admitted under a notice are generally not able to be withdrawn

Where a fact has been admitted under a notice the Courts will not be quick to grant leave to withdraw such an admission.  The Court’s position in respect of parties who transgress the fourteen (14) days generally tend towards maintaining the status quo.  That is, those fact seeking to be admitted within the notice will be taken to be admitted for the duration of the matter.

The Queensland Court of Appeal summarised the position in the decision of Rigato Farm Pty Ltd v Ridolfi [2000] QCA 292 holding at [23]:

“It would have been unduly yielding for the court to have accommodated this appellant’s complaint about the consequence of its not responding to the notice. Further, appeal courts should be especially circumspect about interfering with decisions on matters of practice and procedure. As put by the High Court (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39) “particular caution” must be exercised. The constraints confirmed in House v The King are real constraints, to be respected not perfunctorily discarded, and they are especially powerful, in limiting an appellate court, in a case of this character.”

With that said, in the same case, it was held at [20] that:

“[20] There is no principle that admissions made, or deemed to have been made, may always be withdrawn “for the asking”, subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.”

The above discussion speaks to a utility additional to those already outlined in this article – the benefit of a pleaded case, whether by admission or denial, on the behalf of the party served with the notice.  Knowing how your opponent’s position will help you formulate your arguments to address the real issues on trial.

Takeaways

A notice to admit is an often-under-utilised pleading tool in civil litigations which has the strong potential to save costs and bring a dispute to a close more expeditiously than the alternative where such notice is not employed.  It is also providing the benefit of an early pleaded case which assists with the resolution of a dispute at an earlier stage than usual.

Links and further references

Legislation

Uniform Civil Procedure Rules 1999 (Qld)

Cases

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39

Equuscorp Pty Ltd v Orazio [1999] QSC 354

Rigato Farm Pty Ltd v Ridolfi [2000] QCA 292

Further information about notices to admit

If you need advice on notices to admit, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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