Commonwealth Consolidated Regulations

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FEDERAL COURT RULES 2011 - RULE 26.12

Discontinuance

             (1)  A party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48.

             (2)  The party may file the notice of discontinuance:

                     (a)  without the leave of the Court or the other party's consent:

                              (i)  at any time before the return date fixed in the originating application; or

                             (ii)  if the proceeding is continuing on pleadings--at any time before the pleadings have closed; or

                     (b)  with the opposing party's consent--before judgment has been entered in the proceeding; or

                     (c)  with the leave of the Court--at any time.

Note 1:       For when pleadings close, see rule 16.12.

Note 2:       The Court may give leave subject to conditions including costs--see rule 1.33.

             (3)  The notice of discontinuance must:

                     (a)  state the extent of the discontinuance; and

                     (b)  if the discontinuance is by consent--be signed by each consenting party.

             (4)  However, a litigation representative or a representative party must not discontinue a party's claim without first obtaining the leave of the Court.

             (5)  An application for a winding up order under section 459P or 461(1) (a) of the Corporations Act 2001 may be discontinued only with the leave of the Court.

             (6)  A notice of discontinuance filed by one party does not affect any other party to the proceeding.

             (7)  Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued.



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