Notice of Discontinuance (Form 36)

Rule 32(1) of the Magistrates Court (Civil Division) Rules 1998 (Tas) lets a party discontinue any proceeding that party commenced, at any stage, by a notice in writing filed and served on any other party. Form 36 is the court's form for that notice and cites rule 32(1). Unless the parties agree otherwise, the party who discontinues pays the costs of the proceeding (r 32(2)). Discontinuing is different from abandoning part of a claim under rule 31: a claimant may abandon any part of a claim at any stage, but then cannot bring a separate claim for the part abandoned (r 31(2)).

When you need it

• The dispute has settled and the claimant wants to bring the action to an end.
• You started a claim or counterclaim and have decided not to go on with it.
• You want to end the action against one named defendant (the form asks you to name the party the action is discontinued against).

1. 1

   Heading

   Enter the registry, its address, the action number, and the claimants and defendants (with their solicitors, if any) as they appear on the claim.

2. 2

   Claim or counterclaim

   Delete 'claim' or 'counterclaim' so the notice shows which proceeding you are discontinuing.

3. 3

   Name the party

   Write the name of each party the action is discontinued against. If you are ending the whole action, name every defendant (or, for a counterclaim, every party it was brought against).

4. 4

   Sign and date

   The party discontinuing, or their solicitor, signs and dates the notice.

5. 5

   Filing footer

   Show who filed it and their address for service, phone, fax, DX and contact.

• File the notice at the registry where the action is being conducted (r 30) and serve it on every other party (r 32(1)).
• A notice of discontinuance is not an originating process, so it can be served by any method in rule 40(3), such as ordinary prepaid post to the other party's address for service, as well as by the methods in rule 40(1). A posted document is taken to be served 2 business days after posting (r 41(1)(c)).
• Keep proof of service; service is proved by affidavit (r 43).
• Check the court's fees page or ask the registry whether a fee applies.

• If you have settled, agree in writing who pays costs before filing. Otherwise the discontinuing party pays the costs of the proceeding (r 32(2)).
• If you want the settlement itself to be enforceable, the court's civil disputes page explains that both parties can sign a Consent Order (Form 10) and file it, and that a consent order can be enforced.
• If you only want to drop part of a claim, rule 31 (abandonment) may fit better, but you cannot later sue separately for the part you abandon.