Order 9 Division 3 of the National Court Rules 1983 is the shortest of the three discovery divisions and, in a well-run case, the most useful. Its purpose is to remove from the trial everything that is not really in dispute.
Order 9 Rule 29
(1) A party may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the notice.
(2) If, as to any fact specified, the party served does not, within 14 days after service, serve a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by that party in favour of the party serving the notice.
(3) A party may, with the leave of the Court, withdraw an admission under sub-rule (2).
This is one of the few places in the Rules where inaction has an immediate substantive consequence. No order is needed; no application is made. The fact is simply admitted.
A party served with a notice to admit must therefore diarise it at once and go through the list fact by fact, serving a notice disputing each fact that is genuinely in issue. Fourteen days is short, and an admission once made can be withdrawn only with leave.
Compare Order 8 Rule 21, under which an allegation not traversed in a pleading stands admitted. The mechanisms are different but the lesson is identical: in this Court, silence is a positive act.
Rule 28
(1) A party may, by notice served on another party, admit, in favour of the other party, but for the purpose of the proceedings only, the facts specified in the notice.
(2) A party may, with the leave of the Court, withdraw an admission under sub-rule (1).
Costs. A party who forces the other side to prove facts that were never really in doubt can expect that to be reflected when costs are dealt with under Order 22.
Focus. A trial confined to the real issues is shorter, cheaper and easier to win.
Credibility. A party who disputes everything, including the obvious, is less persuasive on the matters that count.
Note the words “for the purpose of the proceedings only” in both Rules 28 and 29. An admission made under this Division is confined to the case; it is not a general concession usable elsewhere.
Rules 31 and 32
(1) A party may by notice require another to admit, for the purpose of those proceedings only, the authenticity of the documents specified in the notice.
(2) If a notice disputing the authenticity is not served within 14 days, the document shall be admitted.
(3) Withdrawal requires leave.
(1) Where a list of documents is served and inspection is permitted, the following admissions have effect unless the Court otherwise orders — (a) that a document described in the list as an original is an original and was printed, written, signed or executed as it purports to have been; and (b) that a document described as a copy is a true copy.
(2) That does not apply where the party (a) has by his pleading denied the authenticity of the document, or (b) within 14 days after the time limited for inspection, serves a notice disputing the authenticity.
(3) Serving a list also puts the parties in the position they would be in if the inspecting party had, on the date of service, served a notice requiring production at the trial of the documents in the list that are in the other party’s possession, custody or power.
(4) The Rule applies equally to an affidavit made under an order for particular discovery under Rule 7.
A party who inspects documents and says nothing has admitted their authenticity. If a document’s authenticity is genuinely in issue — a disputed signature, an altered invoice — either deny it in the pleading or serve a notice within 14 days after the time limited for inspection.
Sub-rule (3) is a further convenience: serving a list operates as a notice to produce those documents at trial, so no separate notice to produce is needed for them.
Note the limit of what is admitted: authenticity, not truth. Admitting that a letter is genuine does not admit that what it says is correct.
Rule 30
(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgement or make any order to which the applicant is entitled on the admissions.
(2) The Court may do so notwithstanding that other questions in the proceedings have not been determined.
Where the admissions — from the pleadings, from a notice to admit, or from a failure to dispute within 14 days — establish the applicant’s entitlement, judgment may be entered without a trial.
Sub-rule (2) makes clear it may be partial: judgment on liability, with damages left for assessment; or judgment on one cause of action with others going to trial.
It sits alongside Order 12 Rule 38 (summary judgment) and default judgment, but rests on a different footing: not the weakness of the defence, but what the defendant has actually conceded.
Rules 28(2), 29(3) and 32(3) all permit withdrawal with the leave of the Court. Leave is not given lightly, particularly where the other side has prepared on the footing of the admission. Compare Order 8 Rule 62(2), under which a party may not withdraw an admission from a pleading without consent or leave.
So before admitting anything, be sure. And before allowing 14 days to pass on a notice to admit, be equally sure.
Sources
- National Court Rules 1983 — O 8 rr 21, 62; O 9 rr 7, 28–32; O 12 r 38; O 22
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.