FEDERAL COURT OF AUSTRALIA

Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd

[2001] FCA 227

PRACTICE AND PROCEDURE – strike out application of parts of notice to admit facts – whether rules of Court allow such application to be made – Order 18 Federal Court rules

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd [2000] FCA 602 referred to

Astor Pty Ltd (in liq) v Springmount Pty Ltd & Ors [1998] VSC 108 referred to

MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED v TNT AUSTRALIA PTY LIMITED, ANSETT AUSTRALIA LIMITED, MAYNE NICKLESS LIMITED and J McPHEE & SON (AUSTRALIA) PTY LIMITED

NG 786 OF 1995

GYLES J

SYDNEY

12 MARCH 2001 

THE COURT ORDERS THAT:

1.                  The notice of motion of the applicant filed on 14 July 2000 be dismissed.

2.                  The applicant to pay the costs of the first, second, third and fourth respondent of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is a notice of motion by Multigroup Distribution Services Pty Limited, the applicant in the proceedings, to strike out certain paragraphs of notices to admit facts in relevantly identical terms, one served by the first and fourth respondents to the proceeding and the other served by the third respondent to the proceeding.  The respondents raise a threshold question as to whether such an application is competent. 

2                     The respondents submit that there is no express or implied provision for such an application in O 18 or elsewhere.  It is submitted for the applicant that the Court has inherent jurisdiction to act, and reference is made to authorities in State jurisdictions which, it is said, support this conclusion. 

3                     The notices are served pursuant to O 18 r 2 which is in the following terms:

“Notice to admit facts

2 (1)    A party to a proceeding may, by notice in accordance with Form 25 served on another party, require him to admit, for the purpose of the proceeding only, the facts or documents specified in the notice.

(2)               If, as to any fact or document specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts or documents, a notice in accordance with Form 26 disputing that fact or document, that fact or document shall, for the purpose of the proceeding, be admitted by the party on whom the notice to admit facts or documents is served in favour of the party serving the notice.

(3)               A party may, with the leave of the Court, withdraw an admission under subrule (2).

(4)               Where a party serves a notice disputing a fact or a document under subrule (2), and afterwards that fact or the authenticity of the document is proved in the proceeding, he shall, unless the Court otherwise orders, pay the cost of proof.

Other parts of O 18 deal with voluntary admissions, the admission of documents discovered and judgment on admissions.

4                     In my opinion, the respondents are correct because of the manner in which O 18 is framed.  It is designed to facilitate the making of admissions of specified facts or documents, firstly by providing for default admissions and, secondly, by providing a potential costs sanction.  There is no provision for objection to any notice or any part of a notice and the rule does not compel any response.  This is to be contrasted with, say, O 15 dealing with discovery and inspection of documents and O 16, dealing with interrogatories. 

5                     The question as to whether an admission has been made by virtue of O 18 r 2 can be best decided by the trial judge when and if the matter becomes material to the trial and in the context of the trial.  The question of the costs sanction is also best considered when the result of the trial is known as was the case in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602.

6                     The essence of the applicant’s complaint is that many of the matters in relation to which admissions are sought are not facts within the meaning of O 18.  This may be so.  The applicant can make its own judgment as to that, and act accordingly.  If the matter specified is not a fact, then there will be no implied admission and no costs consequence.  There is no occasion to involve the Court in giving judicial advice to parties such as these.  Even if there were power to intervene I would not do so.  Enough time and effort is expended by the Court in interlocutory processes in matters such as this without adding to that burden.  Parties and their legal representatives must take responsibility for conduct of litigation.  Furthermore, each opportunity to involve the Court in interlocutory applications leads to a possibility of obstruction, delay and vexation, and adds to the cost of litigation.  It also means that the judicial officer concerned is diverted from dealing with the cases of other litigants. 

7                     It is not necessary to consider whether, in a special case, a notice to admit might be set aside as vexatious in exercise of inherent jurisdiction of the Court (cf Astor Pty Ltd (in liq) v Springmount Pty Ltd & Ors [1998] VSC 108 at par 30).  I find it difficult to envisage circumstances in which any such jurisdiction might be exercised, and this is certainly not such a case. 

8                     I have been referred to some authorities in the South Australian Supreme Court which appear to take different view of notices to admit than the foregoing. Those cases relate to a very differently framed rule, and are not in point so far as this Court is concerned.

9                     The notice of motion is dismissed, with costs.

Associate:

Dated:              12 March 2001