Gerard Michael Mcguirk v the State of New South
Wales [2009] NSWSC 616

[16]  As to paras 1 and 5, Mr Hutchings
pointed out that the relationship between the plaintiff and Ms Buchanan and
their movements on the evening prior to the first arrest are not matters within
the knowledge of the defendant and, accordingly, should not be the subject of
admission. To this the plaintiff responded that the defendant could make its
own inquiries and, in particular, could be acquainted with those matters by
reference to the summary proceedings in the Local Court. In effect, his argument
was that the Crown is a party to both the proceedings in this court and in the
Local Court, and its left hand should know what its right hand is doing.
Relevantly for present purposes, this was the matter about which he wished to
cross-examine Ms Penhallurick.

[17]  This argument misconceives the
position. The point legitimately made by Mr Hutchings was that these are
matters peculiarly within the knowledge of the plaintiff and, whether or not
they prove to be controversial, should be the subject of evidence produced by
him. The defendant should not be put to its own inquiries about them, on pain
of the costs sanction associated with a notice to admit.

Millane and Ors v Nationwide News Pty Ltd t/as Cumberland
Newspaper Group [2004] NSWSC 1023

[20]  The defendant’s submission raises the
underlying purpose of Pt 52A r 19. The purpose of that rule is to provide a
sanction in situations where a fact which should be admitted is
not admitted so that proceedings are needlessly prolonged. It
is not intended to provide a mechanism whereby the factual substratum of a
party’s case can be challenged and if the challenge is successful, for
indemnity costs to be payable.

[21]  As indicated above, the Notice to Admit Facts
did not raise only issues which should properly have been admitted but
sought admissions favourable to the defendant in relation to the entire factual
basis for the plaintiffs’ case. This involved a number of matters which were
clearly contentious. For the plaintiffs to have admitted those
facts was tantamount to an abandonment of their cause of action.

[22]  In my opinion, it was not
unreasonable for the plaintiffs to refuse to admit most of the
facts asserted in the defendant’s Notice to Admit Facts.
Accordingly, I am not prepared to make a special indemnity costs order in
accordance with the percentages set out in [1] hereof. To do so would involve a
distortion of the purpose behind Pt 18 r 2(2) and Pt 52A r 19 of the Supreme
Court Rules.