Notice of discontinuance (Form 48)

Rule 26.12 of the Federal Court Rules 2011 lets a party claiming relief discontinue a proceeding in whole or in part by filing a notice of discontinuance in accordance with Form 48. No leave or consent is needed before the earlier of the first directions hearing and the hearing, or, where the case is on pleadings, before pleadings close; with the opposing party's consent it can be done any time before judgment is entered; with the Court's leave, at any time (r 26.12(2)). The notice must state the extent of the discontinuance and, if by consent, be signed by each consenting party (r 26.12(3)). Unless a consent or order says otherwise, the discontinuing party must pay the other parties' costs of the discontinued claim (r 26.12(7)).

When you need it

• You are an applicant or cross-claimant and want to end all or part of your claim.
• The parties have settled and agreed that the proceeding be discontinued on stated terms.
• Not for appeals: use Form 126 for appeals from a court (r 36.73) or Form 78 for tribunal appeals (r 33.31).

1. 1

   Heading

   Copy the file number, District Registry, Division and party names from the proceeding.

2. 2

   Extent of the discontinuance

   Insert the name and role of the discontinuing party and choose the whole proceeding, or the part discontinued identified by the numbered claims in the application or cross-claim (r 26.12(3)(a)).

3. 3

   Basis

   Choose one: each party consents; by consent on terms set out in numbered paragraphs; or the Court granted leave on a stated date. Delete the options that do not apply. If none applies, you must be within the no-leave window in rule 26.12(2)(a).

4. 4

   Signatures

   Date and sign as the party or its lawyer. If the discontinuance is by consent, each consenting party or its lawyer signs too (r 26.12(3)(b)); otherwise delete that section.

• File the notice in the proceeding, for example through eLodgment.
• Serve a copy on each other party as soon as reasonably practicable (r 26.13).
• Check the current fee schedule; the Court publishes its fees online.

• Deal with costs in the consent terms. Otherwise the default in rule 26.12(7) makes the discontinuing party liable for the other parties' costs of the discontinued claim.
• Leave is always required where a litigation representative or representative party discontinues a party's claim (r 26.12(4)), and for a winding up application under section 459P or 461(1)(a) of the Corporations Act 2001 (r 26.12(5)). A class action cannot be settled or discontinued without Court approval (s 33V).
• Discontinuance is not a defence to a later proceeding on the same cause of action (r 26.14), so it does not by itself end the dispute. Settlement terms usually deal with that.
• One party's notice does not affect any other party (r 26.12(6)).