You are heading towards a hearing and a lot of what you would have to prove is obvious, documented, and unlikely to be seriously contested.
An understanding of the deemed-admission mechanism, a method for choosing which facts to put in a notice, and the right response when one lands on you.
A NSW civil litigation solicitor.
The central rule
A notice to admit is not a place for the contested heart of the case. It is for the hundred small facts around it that would otherwise each need a witness, a document and ten minutes of hearing time. The value is in what you no longer have to prove, and in what it costs the other side to refuse to admit something obvious.
What it is
A notice to admit facts is a document one party serves on another listing facts, numbered, and asking the other party to admit them. There is a companion notice to admit documents, which asks the other party to admit that listed documents are authentic: that they are what they appear to be, sent and received by the people and on the dates they show.
In NSW civil courts the procedure is in Part 17 of the Uniform Civil Procedure Rules 2005 (NSW). The core of it is rule 17.3(2), which reads:
Rule 17.3(3) adds that the admitting party “may, with the leave of the court, withdraw any such admission”. Rule 17.6 confirms that an admission under Part 17 may be used only in favour of the party it was made for, and only in those proceedings. Rule 17.4 provides the same 14-day mechanism for admitting that documents are authentic; it admits that the document is authentic; whether it was sent, received, or bears a correct date is a separate fact to be admitted specifically or proved. The notice is Form 17, which serves for facts, for authenticity of documents, or both.
The costs consequence is in rule 42.8(2): unless the court orders otherwise, a party who disputed a fact that is later proved or admitted must pay the requesting party’s costs of proving it, or of preparing to prove it, “assessed on an indemnity basis”. That is the default, not a penalty for unreasonableness: the rule does not ask whether the denial was reasonable.
Schedule 1 of the UCPR excludes Part 17 from Local Court small claims proceedings, limits it in the Industrial Relations Commission, and excludes rule 42.8 in specified Land and Environment Court proceedings. If your matter is a small claim, this tool is not available to you. Federal courts and tribunals have their own admissions rules.
Three features follow. It is not a question; it is an assertion the other side must act on or accept. Silence has a consequence, which is rare in litigation. And a denial of a fact that is later proved carries indemnity costs by default, which is why serious lawyers admit the obvious.
How the mechanism works
- You serve the notice, in Form 17, listing facts by number.
- The other party has 14 days after service to serve a notice disputing any of them. They need not give reasons, but the costs rule applies to every disputed fact that is later proved.
- Any fact not disputed within time is admitted for the proceedings. It does not need to be proved at hearing. It can be relied on in submissions as established.
- Any fact disputed must be proved in the ordinary way. If you prove it, or they later admit it, rule 42.8 entitles you to the indemnity costs of proving it unless the court orders otherwise.
- An admission can only be withdrawn with the court's leave; the court decides.
The admission is for the purposes of the proceedings only. It is not a confession usable elsewhere. That limit is part of what makes the mechanism workable: admitting a fact for this case costs the other side less than they fear.