By Matthew Skelly, Senior Associate and Brooke Volbrecht, Associate.

Facts

The matter arises from a claim by the Plaintiff against the Defendants for an alleged personal injury resulting from a faulty light switch.

Our client, in an attempt to limit the issues, served on the Plaintiff a Notice to Admit Facts under r419 of the Court Procedure Rules 2006 (ACT) on 15 February 2024 (Notice).  The Plaintiff failed to respond to the Notice within the requisite 14 days resulting in deemed admissions.

The Plaintiff filed an application to withdraw admissions made by omission (Application).  The Plaintiff was successful in her limited application, with costs being ordered in favour of the Defendants.

Principles

In providing judgment, Justice McWilliams provides a helpful guide to the principles the Court is to apply in exercising its discretion of leave to withdraw facts admitted.

The Court commented the guiding principles for withdrawal of admissions are well established.  However, since Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, case management has become more prominent as a consideration for the Court in such applications.

Fundamental to the exercise of the discretion is the Court being provided the correct facts to administer justice and the possibility of prejudice suffered by the innocent party.  In applying these principles, the Court confirmed:

1. The Court is to treat admissions made in correspondence in the context of court proceedings the same way as admissions made in pleadings.
2. The Court’s discretion in permitting the withdrawal of an admission is broad, weighing up all matters, with the overriding question being what is in the interests of justice, to ensure there is a fair trial, however this does not mean parties have an inalienable right to a hearing of all the issues on the merits.
3. The Court expects a sensible explanation for the delay, supported with evidence depending on the facts of the case. However, this is not a requirement.
4. The Court will not ordinarily permit the withdrawal of informed, deliberate and formal admissions made by a party, which are accepted by the opponent and acted upon. The Court will also not approve an application for withdrawal made for tactical reasons.
5. If an admission is a mistake which is not fraudulent or intended to overreach, can be corrected without injustice to the other party and if not corrected, will not lead to a decision on the matters in question, then it should generally be corrected.
6. A respondent to the application carries no onus to establish actual prejudice and the Court is entitled to consider presumed prejudice arising from delay.

Judgment

The Court considered the deemed admissions were not deliberately made and further, were relevant to the real matters in controversy.

The Court found that the detriment to the Defendants did not amount to permanent prejudice, and forensic or strategic decisions regarding evidence be remedied prior to trial. The nine-month delay in the Application was the crux of the matter as it delayed listing the matter for trial, however, as the matter had not yet been listed, less weight was afforded to this consideration.

Despite Her Honour finding the explanation for the delay unsatisfactory, leave was granted for the Plaintiff to withdraw the admission. The Plaintiff was ordered to pay the Defendant’s costs, as the nature of the application was to seek indulgence of the Court.