Cases are abandoned for good reasons — settlement, a change of view about the merits, a defendant with no assets. Order 8 Division 5 of the National Court Rules 1983 provides the exit.
Order 8 Rule 61
(1) A party making a claim for relief may discontinue proceedings so far as concerns the whole or any part of any claim for relief by him —
(a) where the pleadings are not closed — without leave or consent; and
(b) where judgement has not been entered — with the consent of all other parties; and
(c) at any time — with the leave of the Court.
(2) A party claiming by originating summons may, with the leave of the Court, discontinue at any time so far as concerns the whole or any part of the claim.
| Stage | What you need |
|---|---|
| Before the close of pleadings | Nothing — file the notice |
| After close of pleadings, before judgment | Consent of all other parties |
| At any time, including after judgment | Leave of the Court |
| Proceedings by originating summons | Leave, always |
Paragraph (a) runs until the close of pleadings, which Rule 23 fixes at the expiry of the last time for filing a defence, reply or other pleading. Up to that point a plaintiff may simply walk away.
Sub-rule (2) is different: an originating summons always needs leave. That reflects the summary character of the procedure — matters commenced by summons are often already before a judge.
“The whole or any part”
Rule 61(1) permits discontinuance so far as concerns the whole or any part of any claim for relief. A plaintiff may abandon one cause of action, or one head of relief, or the claim against one of several defendants, while continuing with the rest.
Rule 64(1) requires the notice to state the extent of the discontinuance, which is why partial discontinuance works cleanly.
Dropping a weak head of claim, or a defendant who plainly should not have been sued, narrows the trial and limits the costs exposure. It is far better done early and expressly than left to wither.
Compare Order 5 Rule 9, under which the Court may order that a party improperly or unnecessarily joined cease to be a party.
Rules 60 and 62
Rule 60 — a party who has given a notice of intention to defend may withdraw the notice at any time with the leave of the Court.
Rule 62(1) — a party raising any matter in a defence or subsequent pleading may withdraw that matter at any time.
Rule 62(2) — but that does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.
Sub-rule (2) is the important qualification. A defendant may drop a defence they no longer wish to run — that harms nobody but themselves. They may not quietly withdraw an admission the plaintiff has been relying on. That requires consent or leave, and in practice an amendment supported by an explanation.
Rules 63 to 65
Rule 64(1) — a discontinuance or withdrawal shall be made by filing a notice stating the extent of the discontinuance or withdrawal.
Rule 64(2) — where it is by consent, the notice must bear the consent of each consenting party.
Rule 65 — the party filing shall, on the day of filing, serve the notice on each other party.
Rule 63 — the Court may give leave under Rule 61 or 62 on terms.
A discontinuing plaintiff will ordinarily be ordered to pay the defendant’s costs of the proceeding. The defendant was put to expense by a claim now abandoned.
Where discontinuance is part of a settlement, deal with costs expressly in the terms, and consider whether a consent order is preferable to a bare notice — it records the bargain and can be enforced.
Rules 66 and 67
A discontinuance under this Division as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to proceedings for the same, or substantially the same, cause of action.
This is the crucial difference. A proceeding dismissed after a hearing on the merits ends the claim. A proceeding discontinued does not: the plaintiff may sue again on the same cause of action.
Two qualifications for a plaintiff. First, “subject to the terms of any leave” — the Court may make discontinuance conditional on not suing again, and a defendant who is being asked to consent should consider asking for exactly that. Second, the limitation period keeps running. The fresh proceeding is commenced on its own filing date, and the Frauds and Limitations Act 1988 may by then bar it.
Where a party (a) discontinues; (b) is by reason of the discontinuance liable to pay another party’s costs; and (c) before payment of those costs, brings further proceedings on the same or substantially the same cause of action, the Court may stay the further proceedings until those costs are paid.
Rule 67 prevents a plaintiff from discontinuing to escape an adverse position and then starting again as though nothing had happened. The second action is stayed until the costs of the first are paid.
Note that a cross-claim is unaffected: under Rule 47, a cross-claim may proceed notwithstanding that the proceedings on the writ are stayed, dismissed or discontinued. Discontinuing the main claim does not dispose of the cross-claim against you.
Sources
- National Court Rules 1983 — O 5 r 9; O 8 rr 23, 47, 60–67
- Frauds and Limitations Act 1988
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.