Notice to admit facts

Latimer v Day Jr [2014] NSWSC 1217 was an interlocutory judgment regarding a notice to admit facts process, in a claim arising from a micro discectomy at the L2/L3 level for treatment of back pain associated with degenerative disc disease.


The court expressed concern as to the utility of the notice process and the application which followed, as at least some of the documents for which authenticity admissions were sought appeared to be admissible on their face.

At [11] – [12] the court said:

11 In so far as the admissions sought merely reflect the terms of documents of the nature to which I have referred, it seems to me that the Notice to Admit was and is a waste of time. Counsel for the Defendant when I raised that possibility with him responded by saying that the notice was calculated to reduce the issues and volume of material which the trial judge would have to deal with. There is some although I think little validity in that response. Clearly an admission constituted by agreement, actual or deemed, to a five line paragraph may involve less work than reading the terms of a document even if that document is but one or a few pages long.

12 On the other hand one must balance against any such saving the sort of time likely to have been expended in the formulation of the relevant paragraph of the Notice to Admit and its consideration by the lawyers on both sides of the case. That consideration must necessarily involve a close comparison of the statement in the paragraph with the statement in the document and I am by no means satisfied that there would be any saving in the time and costs involved in the litigation. When one, however, brings into account the sorts of issue that arise when paragraphs of the Notice to Admit seek to link what I have referred to as primary facts with the further questions whether those primary facts arise out of or in the course of employment with the Plaintiff’s previous employers the matter becomes, in my view, substantially more complicated.

Further at [15]:

15 My attention was directed to s 56 of the Civil Procedure Act and some other statutory provisions concerned with the just, quick and cheap resolution of a real issue in the proceedings and while nothing I say is intended to ignore any such statutory provisions one cannot but be conscious of the fact that very often in the course of litigation steps are taken which while they are said to be directed to narrowing the issues at trial have the consequence of building up the interlocutory costs far more than any saving that might be effected at trial.