The decision of the New South Wales Supreme Court in this case provides clarity on the application of the principles used to determine if an admission can be withdrawn. The Court considered what level of information is needed to consider an explanation satisfactory and whether concurrent proceedings considering the same issue should be persuasive as to allow for the withdrawal of an admission.
Key facts
This case concerns a claim by the plaintiff of institutional physical and sexual abuse by a teacher while he was a student at Parramatta Marist High School. The judgment delivered on 25 September 2026 was in relation to a filing made by the second defendant, The Diocese of Parramatta (‘the Diocese’), to withdraw an admission it had made in its defence. This admission was that the teacher, Mr Hawkins, was employed by the Diocese.
The key point of contention was the relevance of a 1966 Draft Agreement (‘the Draft Agreement’) found by the solicitor for the Diocese after the defence had been filed. This Draft Agreement provided that while the Diocese would pay the teachers, this would not constitute an employment relationship, and the teachers would remain employees of the relevant religious congregation (the Marist Brothers).
Relevant Legal Principles
Rule 12.6(2) of the UCPR permits a party to withdraw an admission. However, where the admission operates for the benefit of another party, withdrawal requires either the consent of that party or leave of the court. The Diocese’s retraction was objected to by both the Marist Brothers and the plaintiff.
SLE Worldwide v WGB & Ors [2005] establishes that an explanation is usually required about how the admission was made and why it should be withdrawn.
In assessing this claim Justice Coleman followed and applied the principles laid down in Deangrove Pty Ltd v Commonwealth Bank of Australia [2003];
Considering the particular circumstances and an assessment of the interests of justice, the relevant circumstances include.
- Nature of the admission
- How it came to be made (e.g. deliberately or accidentally)
- When and why the party seeks to withdraw the admission
- The impact of any withdrawal on the other parties
Basis for the Application
The Diocese contended that it should be granted leave to withdraw the admission to further investigate whether the Draft Agreement established that the Diocese had not employed Hawkins. They presented evidence that suggested that an arrangement other than employment may have existed during the period of the offence and relied on the fact that the admission had been made prior to the discovery of the draft agreement on instructions from the client. It was also submitted that withdrawal should be permitted because there was another proceeding involving allegations of sexual abuse by Hawkins, KLS v Trustees of the Marist Brothers (ongoing) (‘KLS’), in which the Diocese denied that Hawkins was its employee. The Diocese argued that allowing the matters to proceed together and share evidence would reduce any prejudice to the other parties.
Decision
Having regard to the relevant principles governing the withdrawal of admissions, the circumstances of the proceedings, the related cases, and the provisions of the Civil Procedure Act, the court refused the application.
Reasoning
Explanation for withdrawal of the admission
The Court focused primarily on how the admission was made and why the Diocese sought to withdraw it. The key barrier to the motion was a lack of evidence and information for many of the submissions that were made.
Justice Coleman was not persuaded that the Diocese had provided a satisfactory explanation for why the admission was made or the reason that it now wished to withdraw it. The Diocese primarily relied on the testimony of the solicitor who discovered the Draft Agreement, and the fact that it was found after the defence was filed. There was no evidence explaining how the original admission came to be made, on whose instructions it was made, or why it was now alleged to be incorrect.
This was compounded by the fact that the court was not persuaded that the existence of the Draft Agreement demonstrated that the admission was wrong. There had been no attempts made to investigate the significance of the agreement in relation to Mr Hawkins’ employment and no evidence that it rendered the admission inaccurate. The court found that the discovery of a potentially relevant document was not enough to justify withdrawal.
Relevance of Related Cases
Counsel for the Diocese submitted that this matter should be considered in the context of the other proceedings dealing with sexual abuse at the school by Hawkins. These are the cases of WJT v Trustees of the Marist Brothers [2025] (‘WJT’) and KLS.
The Diocese relied on WJT to argue that the admission of employment made in that proceeding could not automatically be applied to the present case. There was a separate agreement document that came into effect after the events in this case that established the Diocese as the employer in WJT. The court accepted that there may have been a different system prior to WJT. However, in the absence of evidence showing that the admission had been made in error, the court did not find this possibility sufficiently persuasive.
The fact that the issue would be investigated in KLS was not considered to be a decisive reason to allow for withdrawal in these proceedings. Particularly where the court has not been satisfied that withdrawal should be allowed on other grounds. Justice Coleman gave consideration to the inconvenience of calling witnesses twice but did not find that it should be decisive where other reasons to support the application are limited. The possibility that a finding of non-employment in KLS could provide grounds to support an application to withdraw in the future also weighed against the Diocese in these proceedings which the judge considered premature.
Impact of the withdrawal on the other parties
The court also considered the impact of withdrawal on the other parties to the proceedings.
The Marist Brothers submitted that, had the admission not been made, they would have undertaken further inquiries into Hawkins’ employment status. They claimed that this would have included deposing witnesses who were now of advanced age and experiencing cognitive decline.
The court also considered the additional burden that withdrawal would place on the plaintiff’s solicitors, who would be required to undertake further investigations, together with the prejudice to the plaintiff himself, who was entitled to have the proceedings resolved as expeditiously as possible. These factors supported the conclusion that withdrawal would cause prejudice to the other parties.
Key Takeaways
- An application to withdraw an admission requires a clear and satisfactory explanation of both how the admission came to be made and why it should now be withdrawn.
- A desire to conduct further investigations that may uncover evidence that an admission was made in error is not, by itself, a sufficient basis for withdrawal.
- The discovery of a potentially relevant document will not justify withdrawal where there is no evidence demonstrating that the admission is in fact incorrect.
- The existence of parallel proceedings involving similar issues and inconsistent positions will not necessarily justify withdrawal, particularly where the interests of justice otherwise favour maintaining the admission.
- In considering an application to withdraw an admission, the court will consider the prejudice to other parties, including lost opportunities to investigate issues earlier and the additional time and expense caused by reopening them.
The case can be read in full here: https://www.caselaw.nsw.gov.au/decision/1a0d0903b8793a483807c9cf
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