Page and Glover - [2004] FMCAfam 277

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PAGE & GLOVER

[2004] FMCAfam 277

FAMILY LAW – PRACTICE AND PROCEDURE – Notice to admit facts – deemed admission.

Federal Magistrates Act 1989, s.3, 42
Federal Magistrates Courts Rules 2001, regs 3.05 15.31(1), 15.31(2), 15.31(3)

Ridolfi vRigato Farms Pty Ltd (2001) 2 QdR 455

Applicant:

TIA PAGE

Respondent:

DAVID GLOVER

File No:

BRM 864 of 2003

Delivered on:

10 June 2004

Delivered at:

Brisbane

Hearing date:

by written submissions

Judgment of:

Jarrett FM

REPRESENTATION

Solicitors for the Applicant:

Price & Roobottom

Solicitors for the Respondent:

Mitchell Lawyers

ORDERS

The application for leave to withdraw the admissions of the facts contained in the notice to admit facts served by the applicant on the respondent on 22 January, 2004 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 864 of 2003

TIA PAGE

Applicant

And

DAVID GLOVER

Respondent

REASONS FOR JUDGMENT

Proceedings

This is an oral application by the respondent for an order that:
"That the time for service for the husband of a Notice Disputing Facts contained in the wife's Notice to Admit Facts dated 22 January 2004 is extended to 24 February 2004 and for that purpose the husband is permitted to rely upon his Notice Disputing Facts dated 19 February 2004."

Background

On 17 September, 2003 the applicant commenced proceedings seeking orders for property settlement against the respondent. The application was accompanied by an information sheet that specified that the parties commenced to live together in November 1996, married on 1 May, 1999 and finally separated on 28 June, 2003.
On 21 October, 2003 the applicant filed an affidavit wherein she said:
"2. The Respondent and I formed a relationship based on intimacy and trust in January 1992, and commenced cohabitation in November 1996 at 61 Montezuma Drive, Burleigh Waters.
3. We were married on 1 May 1999 and separated finally on 26 March 2001 when the children and I left the former matrimonial home …
13. In January 1998, the Respondent and I purchased 42 Petherbridge Avenue, Merrimac ("the former matrimonial home") for $146,000.oo…
15. We moved into the home in late January 1998 and repayments we jointly made on the mortgage exceeded the minimum required…"
In due course the respondent filed his material. Included was an affidavit filed on 26 November, 2003. In that affidavit, he said:
"6. The Applicant and myself commenced our defacto relationship in 1998 when she moved into the home [at Petherbridge Ave.] with her two children. We married on 1 May 1999. We separated on 16 February 2001. A Decree Absolute of our marriage was made in this Court on 28 June 2003."
On 17 November, 2003 an order was made that the parties should attend a conciliation conference at Relationships Australia on

23 January, 2004. The conference did not proceed on that day, but was convened on 30 January, 2004. The matter was not resolved at that conference.
On 22 January, 2004 the applicant (by her solicitors) served upon the respondent (by his solicitors) a notice to admit facts as she was permitted to do by r.15.31 of the Federal Magistrates Court Rules2001 ("FMCR"). The respondent concedes that should he have wished to dispute the facts or any of them set out in the notice to admit a notice disputing the relevant facts should have been served by 6 February, 2004 (see r.15.31(2) FMCR). It was not. Instead, the respondent served a notice disputing facts on the applicant on 19 February, 2004.

The nature of the relief sought

Rule 15.31 FMCR is in the following terms:
15.31 Notice to admit facts or documents
(1) A party to a proceeding (the first party) may, by notice in accordance with the form of notice set out in Part 1 of Schedule 2, ask another party to admit, for the proceeding, the facts or documents specified in the notice.
(2) If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.
(3) The other party may, with the Court’s leave, withdraw an admission taken to have been made under subrule (2).
(4) Unless the Court otherwise orders, if the other party serves a notice disputing a fact or the authenticity of a document and the fact or the authenticity of the document is later proved in the proceeding, the party must pay the costs of the proof.
By r.15.31(2) FMCR the respondent is now to be taken to admit, for this proceeding only, the facts specified in the notice to admit.
In his written submissions, the respondent relies upon r.3.05 FMCR to seek the relief claimed. Rule 3.05 permits the Court to shorten or extend a time period specified by the FMCR.
In truth, the application is probably better described as an application under r.15.31(3) for leave to withdraw the admissions that the respondent is deemed to have made by reason of r.15.31(2) FMCR. Given that r.15.31(3) specifically deals with the situation that has now arisen, I think that resort to r.3.05 is both unnecessary and impermissible given the later, more specific terms of r.15.31(3) FMCR. Even if I were to grant the respondent the relief he seeks, I would still have to consider whether I should grant leave to withdraw the relevant admissions.

The Notice to Admit

Rule 15.31(1) permits the delivery of a notice to admit facts or documents that is in accordance with the form of notice set out in Part 1 of Schedule 2 FMCR. The form of notice used in the present case was that prescribed by the relevant Family Law Rules (or 22 r.2 of the Family Court Rules 1984; form 27).
The use of the incorrect form is not, however, fatal. By r.2.04(1) strict compliance with the prescribed forms is not required – substantial compliance is sufficient. Moreover, by r. 2.04(2) use of the relevant Family Court form (in this case form 27) may be taken to be substantial compliance with the appropriate to Federal Magistrates Court form.
Having compared the prescribed form specified by the FMCR with that used by the applicant in this case, I am satisfied that the applicant has substantially complied with the form specified by the FMCR.
The notice delivered by the applicant sought following admissions:
1.    That the parties commenced cohabitation and resided together in 1993 and 1994 at 2/43 Mountain View Avenue, Miami in the State of Queensland.
2.    That from February, 1995 until September 1986, the parties resided at Mr Rock Bogan’s, the Wife's uncle, property at 61 Montezuma Drive, Burleigh Waters, which at that time was rented in the Wife's name.
3.    That the parties from September 1996 to February 1997, resided together at 14 Verdichio Avenue, Mermaid Waters.
4.    The parties resided together from March 1997 to September 1997 39/118 Highfield Drive, Merrimac during the Wife's six-month lease.
5.    That the parties resided at 42 Petherbridge Avenue, Merrimac from January 1998 to February, 2001.
It will be observed that some of the paragraphs of the notice to admit facts are not confined to asserting one "fact". Whilst the FMCR nor the prescribed form requires the notice to be divided into paragraphs with each paragraph confined to one matter of fact, such an approach would be commonsense. The failure of the notice under consideration to do so is not, however, fatal. The imprecise and perhaps ambiguous nature of some of the paragraphs of the subject notice means that admissions secured with respect to those matters are unlikely to be of any real forensic assistance.

Leave to withdraw admissions

Rules such as r.15.31 FMCR are not uncommon. Nor are applications for leave to withdraw admissions that are deemed to have been made pursuant to them.
The matter was most recently considered by the Queensland Court of Appeal in Ridolfi vRigato Farms Pty Ltd (2001) 2 QldR 455. In that case, the Court of Appeal had occasion to consider an appeal from a decision of a judge of the District Court of Queensland refusing a defendant leave to withdraw an admission deemed to have been made pursuant to rule 189(2) of the Uniform Civil Procedure Rules (Qld) (“UCPR”). Save some inconsequential variance, that rule is for all intents and purposes, in the same terms as r.15.31(2) FMCR.
In the course of his judgment, De Jersey CJ said:
[19] Asked to exercise the discretion under rule 189(3), a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at a trial. Here none of those matters was so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application.
[20] There is no principle that admissions made, or deemed to have been made, may always be withdrawn “for the asking”, subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.
In the same case, McPherson J. said:
[27] Before permitting the admission to be withdrawn, the first step to be determined here was whether there was a genuine dispute about the defendant's liability in this action. Drawing on the analogy provided by another branch of the law, it is not enough for that purpose simply to assert that a dispute exists: see Re Brighton Club & Norfolk Hotel Co Ltd (1865) 35 Beav 204, 205; (1865) 55 ER 873, 874. Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn. That is not shown by a saying simply that there has been a change of solicitors, or that it is possible to see that, before the admission was made, the issue of liability was an open question. Here the defendant has not condescended to swear to the circumstances in which the admission came to be made, or to show that it occurred by inadvertence, mistake or in some other way that might now justify its withdrawal.
Finally, the third member of the Court, Williams J. said:
[31] Counsel for the appellant referred to the well known passage in the judgment of Bowen L J in Cropper v Smith (1884) 26 Ch D 700 at 710 where he said that the court ought to correct errors or mistakes in procedure made by the parties so that the matter was determined in accordance with the rights of the parties. That statement, though made over one hundred years ago, is still relevant, and it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where the detriment or prejudice is self induced, the party may not be entitled to relief. So much is clear from the unreported decision of the Victorian Full Court in Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd, referred to at length and applied by Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods Ltd (1972) 26 NSWLR 738 at 744. Rogers CJ considered that the statement of Lord Denning MR in H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 703 that an admission made by counsel in the course of proceedings can be withdrawn unless the circumstances are such as to give rise to an estoppel were “words … uttered in another age and in other circumstances” (746). Such an observation can even more forcibly be made and applied in the light of the UCPR.
[32] Certainly an admission flowing from the operation of r 189 should not be withdrawn merely for the asking. In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn. Such a requirement is generally in accordance with the reasons of Roger CJ in Coopers and of Mackenzie J in Equuscorp Pty Ltd v Orazio (unreported, S9208/96, judgment 30 November 1999). That ought not be taken to be an exhaustive statement of what is required. Each case should be considered in the light of its own facts and the circumstances may well require even more extensive material in order to obtain leave to withdraw the admission.
It should be borne in mind that Ridolfi was decided in the context of the UCPR and in particular UCPR 5(1) which is in the following terms:
The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
That context had a significant bearing upon the reasoning of the members of the Court: De Jersey CJ at [18], [21] – [22] with whom the other members of the Court agreed.
I am deciding this case against the background set by the Federal Magistrates Act 1989 and in particular, the following sections of that Act:
3 Objects
…
(2) The other objects of this Act are:
(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
(b) to enable the Federal Magistrates Court to use streamlined procedures; and
(c) to encourage the use of a range of appropriate dispute resolution processes.
42 Federal Magistrates Court to operate informally
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
It seems to me that the objects of the UCPR and those mandated by the Federal Magistrates Act 1989 are not dissimilar. Each has an eye to the just and expeditious disposition of disputes. This Court is required to use streamlined procedures and to proceed with undue formality. The FMCR are made pursuant to the Act and in furtherance of its objects.
In my opinion the following principles apply to an application for leave to withdraw an admission pursuant to r.15.31(3) FMCR:
a)Leave will not be granted simply “for the asking”;
b)The Court has a broad and unfettered discretion to grant leave, but such discretion has to be exercised judicially and in a principled way;
c)Sworn evidence should be placed before the Court that:
i)clearly explains the circumstances in which the admission came to be made;
ii)clearly explains the response the applicant for leave wishes to make to the facts that have been admitted;
iii)confirms that the response would accord with evidence available to be led at a trial, or in other words demonstrates that there is a genuine dispute about the facts in issue.
d)Questions of prejudice to both parties, but perhaps more particularly the party who has secured the admission, need to be considered.
The matter before me arises in the context of an application for property settlement pursuant to the provisions in Family Law Act 1975. The respondent submits that for that reason I should adopt a benevolent interpretation of r.15.31. However, r.15.31 appears in Chapter 1 of the FMCR. That Chapter has application to all proceedings within this Court. Thus, the rule has application whether the Court is dealing with an application under the Family Law Act1975, the Bankruptcy Act 1966 or the Trade Practices Act1975 or any other Act pursuant to which this Court has jurisdiction. Indeed, the procedure is commonly used in matters arising under the Migration Act1958. It is important, in my view that the r.15.31 is interpreted and applied consistently, irrespective of the jurisdiction that the Court might be exercising from time to time.
Before passing from this point I should add that in an application under the Family Law Act1975 for parenting orders, s.65E of that Act may call for different considerations to those I have identified above. That issue, however, does not arise for consideration in the present case.

The present case

The respondent relies upon an affidavit sworn by David Wallace Mitchell filed 10 May 2004. Mr Mitchell is the respondent's new solicitor. In that affidavit he deposes that previously the husband was represented by another firm of solicitors but that he has received the file on in this matter and has access to various documents relevant to the case. In addition, he exhibits two pieces of correspondence.
The first is a letter from the husband's previous solicitors to the wife's solicitors dated 19 February, 2004 in the following terms:
We enclose herewith, by way of service, Notice Disputing Facts in response to your client’s Notices to Admit dated 20 January, 2004 and 10 February, 2004 respectively.
Referring in particular to the provisions of Order 22 Rule 2(3) whilst it is acknowledged that the Form 28 is being delivered out of time, we draw your attention to the following:-
1.Our client has, throughout this matter, made his position clear in relation to the date of commencement of cohabitation being January/February 1998;
2.Notwithstanding the receipt of the original Notice, our client was focusing on the Conciliation Conference which was held on 30 January 2004;
3.Since receiving the Notice and in particular, your letter of 2 February 2004, our client has been focusing on gathering the financial information sufficient to clarify his position regarding the financial contribution.
In the circumstances, should your client seek to rely on a strict interpretation of provisions of Order 22 Rule 2(3), we give notice that we will be relying on the terms of this letter.
The reference to the rules of the Family Court are of course, misconceived because the litigation is being conducted in the Federal Magistrates Court.
The second piece of correspondence is a letter from the applicant’s solicitors to the respondent’s solicitors, pointing out that the applicant was intending to rely upon the admission taken to have been made by the respondent.
There is no other evidence placed before me by the respondent to explain why no response was made to the notice to admit. If I accept that the contents of the exhibited correspondence is evidence of the truth of what is asserted in that correspondence, the material before me reveals that the husband was focusing on gathering documents for the impending conciliation conference. There is some evidence in the husband's affidavit filed on 26 November, 2003 that he was at that time asserting that cohabitation began at a time later than that asserted by the applicant.
But at all times, the husband was legally represented. The material placed before me does not explain why his solicitors did not respond to the notice to admit facts in any way at all. There is not even a request for the applicant’s consent to the respondent deferring his response until after the conciliation conference. There is no evidence that the solicitors even sought instructions from the respondent about the notice to admit facts within the relevant time. The material is simply silent on all these matters.
There is, I find, no sworn explanation as to the circumstances in which the relevant admissions have come to be made. Nor is there any evidence placed before me that would tend show that there is a real and genuine dispute about the commencement date of cohabitation.
Applying the principles I have identified above, I must dismiss the respondent's application.
I should add that because of the way in which the notice to admit has been drawn the admissions that the respondent is deemed to have made may not be of any particular utility at the final hearing of this matter. Whilst the length that the parties might have lived together is of some relevance in determining a property application under the Family LawAct1975 what is of far greater importance are financial and non-financial contributions made by the parties during the course of their relationship. Those contributions should be the focus of the parties in this case and not simply the length of time the parties may or may not have lived together.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:

Date: