What’s A Notice Of Discontinuance? An Explainer

Written by

Jackie Olling

Litigation carries with it an abundance of documents – affidavits, applications, and notices for certain things to name a few. Of course, some are used more often and some have a bigger impact on the outcome of a case. Along with a statement of claim, initiating application, or other document that formally commences proceedings, a notice of discontinuance is the most definitive document you will encounter because it does the opposite – ending proceedings.

Litigation carries with it an abundance of documents – affidavits, applications, and notices for certain things to name a few. Along with a statement of claim, initiating application, or other document that formally commences proceedings, a notice of discontinuance is the most definitive document you will encounter. This is because it does the opposite – ending proceedings.

What’s a notice of discontinuance?

A notice of discontinuance is used when a plaintiff or applicant (someone who has commenced proceedings), or an appellant (someone who is appealing a case) decides to ‘drop the case’.

This means that they won’t continue pursuing the case. The Court then stays the proceedings.

This can be for a variety of reasons, some of which include:

  • They’ve realised that they don’t have a good chance of success
  • They can no longer afford to keep paying legal fees
  • They’d prefer to resolve the matter out of court
  • The parties have come to a resolution
  • Mistaken identity

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Who can file it?

You can only file a notice of discontinuance in certain circumstances.

In most instances, a notice of discontinuance is filed by a plaintiff or applicant. However, defendants and applicants can also file them.

A party who is filing a notice of discontinuance can do so without the consent of the other party where they have not filed a defense or entered an appearance. If this isn’t the case, the party filing the notice will need to have it consented to (and signed) by the opposing party.

What effect does this have?

A notice of discontinuance ‘abandons’ the case. The case stops in its tracks and the proceedings don’t continue.

However, if a matter has been set for trial, there are sometimes time limits by which they should file it. For example, if you’re filing in the Federal Court of Australia, you must do so within more than 14 days of the final hearing date. If it’s outside of this time, leave has to be granted by the Court.

What about costs up to that point?

An opposing party can often recover costs.

However, there are some exceptions to this where:

  • The parties have made an agreement on costs as a condition of the discontinuance
  • One party’s conduct has been unreasonable
  • Other circumstances have stalled the case

Costs in most cases, are awarded to the party who has not discontinued the case because they have paid for a stayed case so far. This is often because of the reasons why the other party decided to abandon the proceedings.

A notice of discontinuance can signal relief and an end to the stresses of litigation. However, it’s important to remember that the party who brings it is able to start proceedings again for the reason that bowing out of a case can’t bar someone from exercising their legal rights. An exception to this is where a time limit exists. If you wish to or have been served with a notice of discontinuance, consult your lawyer to determine whether or not agreeing to it is in your best interests.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

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