Notice to admit (Form 41)

Part 22 of the Federal Court Rules 2011 lets a party narrow the issues before trial. Under rule 22.01 a party may serve on another party a notice in accordance with Form 41 requiring that party, for the purpose of the proceeding only, to admit the truth of facts and the authenticity of documents listed in the notice. The party served has 14 days after service to serve a notice of dispute in Form 42 (r 22.02). If it does not, it is taken to have admitted each fact and the authenticity of each document listed (r 22.04). A party who disputes a fact or document that is later proved must pay the costs of proving it (r 22.03). Authenticity means an original was created, signed and executed as it purports to have been, or that a copy is a true copy (Dictionary).

When you need it

• You want the other side to admit facts that should not really be in contest, so they do not have to be proved at trial.
• You want the other side to admit that copies of documents are true copies, or that originals are genuine, before the hearing.
• You want costs protection: if the other side disputes something that you then prove, rule 22.03 makes them pay the costs of proving it.
• Not for responding to a notice to admit: the party served uses a notice of dispute in Form 42 (r 22.02).

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names from the originating application. If there are 2 or more applicants or respondents, add 'and another' or 'and others' after the first name.

2. 2

   Address the notice

   After 'To the', name the party you are serving by its role in the proceeding, such as the Respondent or the Second Applicant.

3. 3

   List the facts to be admitted

   If you want facts admitted, keep that section and set out each fact in its own numbered paragraph, stated precisely enough that it can simply be admitted or disputed. Delete the section if you only want documents admitted.

4. 4

   List the documents to be admitted

   If you want the authenticity of documents admitted, keep that section and describe each document so it can be identified (type, date, author and recipient, or a document number from a list of documents). Delete it if you only want facts admitted.

5. 5

   Leave the warning paragraphs in place

   The printed paragraphs tell the other party it has 14 days after service to serve a notice of dispute (Form 42), and that otherwise it will be taken to have admitted each fact and document. These reflect rules 22.02 and 22.04.

6. 6

   Date and sign

   Insert the date and the name and capacity of the person signing, such as Applicant or Lawyer for the Applicant, and delete any bracketed sections that do not apply.

• Rule 22.01 provides for the notice to be served on the other party. Keep a record of the date and method of service, because the 14 days to dispute runs from service (r 22.02).
• Serve it at the other party's address for service (r 11.01). Where a party has a lawyer, that is the lawyer's address, and the party is taken to agree to the lawyer receiving documents by email.
• The party served may answer with a notice of dispute in Form 42 within 14 days. Facts and documents not disputed in time are taken to be admitted (r 22.04).
• An admission made under Part 22 can only be withdrawn with the Court's leave (r 22.06), and a party may apply for judgment on an admission (r 22.07).

• Serve the notice early enough for the 14 days to run well before trial preparation, so you know what still has to be proved.
• Keep each fact narrow. A paragraph that bundles several facts invites a dispute of the whole paragraph.
• The Court may dispense with compliance with the rules (r 1.34), so a deemed admission is not always the end of the matter.
• Separate from Form 41, rule 22.05 treats a party as admitting the authenticity of documents in another party's list of documents once inspection is permitted, unless authenticity is denied in its pleadings or affidavits or by notice within 14 days after inspection.