Notice of withdrawal of pleading (Form 47)

Rule 26.11 of the Federal Court Rules 2011 lets a party withdraw a plea raised in its pleading at any time by filing a notice of withdrawal in accordance with Form 47. There is one important limit: a party must not withdraw an admission, or any other plea that benefits another party, in a defence or later pleading unless that other party consents or the Court gives leave (r 26.11(2)). The notice must state the extent of the withdrawal and, if it is by consent, be signed by each consenting party (r 26.11(3)). After filing, the notice must be served on every other party as soon as reasonably practicable (r 26.13).

When you need it

• You want to withdraw a whole pleading or particular paragraphs of it, for example part of a defence or reply.
• You want to withdraw an admission or another plea that helps the other side. You need their consent or the Court's leave first (r 26.11(2)).
• Not for ending a claim for relief: a party discontinuing all or part of a proceeding uses a notice of discontinuance (Form 48) under rule 26.12.

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names exactly as they appear on the originating application or notice of appeal (rr 2.13, 2.14). If there are two or more applicants or respondents, add "and another" or "and others" after the first name, as the form prompts.

2. 2

   Say what is withdrawn

   Insert your role and name, describe the pleading (for example "defence") and state the extent of the withdrawal, such as "paragraphs 1 to 3 of the defence". Rule 26.11(3)(a) requires the extent to be stated.

3. 3

   Choose the basis

   Keep either "Each party consents to this withdrawal" or "The Court on [date] granted leave", and delete the other. If the plea is not an admission or other plea that benefits another party, neither is needed under r 26.11(2) and you can delete both.

4. 4

   Sign, with consent signatures if needed

   Sign as the party or the party's lawyer. If the withdrawal is by consent, each consenting party or its lawyer must also sign in the extra signature block (r 26.11(3)(b)).

• File it in the existing proceeding, usually through eLodgment using the file number. Rule 2.21 also allows lodging at a Registry, by post or by fax.
• Serve a copy on each other party as soon as reasonably practicable after filing (r 26.13).
• If the Court's leave is needed and has not been given, apply for leave first and record the date of the order in the notice.

• Be precise about paragraph numbers. A vague description of what is withdrawn invites argument later.
• Consider whether an amended pleading would be clearer than a withdrawal, particularly if the change affects several paragraphs.
• Withdrawing an admission that helps the other side without consent or leave is not permitted (r 26.11(2)).