Notice of Discontinuance: Steps and Costs

What a Notice of Discontinuance Does

Filing a notice of discontinuance withdraws the identified relief through the procedure allowed by the court’s rules. Its effect depends on the claim, the parties covered and any conditions imposed on discontinuance.

Discontinuance ordinarily leaves the merits undecided. A judgment determines the matters it decides, while a settlement deed records the parties’ agreed obligations and releases. Keep the release terms and settlement performance separate from the document that ends the court claim.

Another party’s claim needs its own treatment. The Federal Circuit and Family Court of Australia’s notice instructions expressly preserve another party’s ability to continue seeking orders, including costs. In NSW civil proceedings, rule 12.1 treats a cross-claim as separate proceedings for discontinuance purposes.

For example, withdrawing an applicant’s property application does not also withdraw the respondent’s application for property orders. Record the surviving relief before telling the client that their involvement has finished.

Check Client Authority and What Remains in Dispute

Obtain the client’s authority for the precise claim being discontinued and the agreed timing of filing. Record whether discontinuance follows completed settlement performance or must occur while obligations remain outstanding.

Use a closing checklist that addresses the actual file:

• Identify every application, cross-claim and party, then mark what the client authorises you to discontinue.
• Record any payment, executed release or other settlement condition that controls when filing can occur.
• Read existing orders and undertakings for their duration and any discharge steps.
• Identify the next hearing and each outstanding procedural obligation.
• Record the agreed costs position, any reserved costs and who will obtain necessary orders.

Consider a hypothetical family-property matter. The applicant agrees to withdraw their application after a transfer completes, but the respondent still seeks property orders. Confirm completion of the transfer and identify what will happen to the respondent’s application. Read any restraint on dealing with assets and obtain the order needed to resolve its continuing effect.

In a hypothetical commercial dispute, a supplier settles its invoice claim while the customer continues pursuing damages through a cross-claim. The supplier’s notice must match the agreed scope. Keep the cross-claim’s directions and hearing in the commercial litigation case plan until the court deals with them.

For a fictional partial discontinuance, assume the client authorises withdrawal of only its invoice claim against Buyer Ltd. Buyer Ltd’s damages cross-claim continues, and costs remain disputed. Wording that discontinues “the proceeding” could exceed that authority. Identify the invoice claim and the affected defendant precisely, using the route that permits that scope. Compare the completed form with the written authority before signing.

Record the cross-claim and unresolved costs separately.

Choose the Court’s Form and Permission Route

Choose the procedure by jurisdiction and proceeding type before completing a notice. The family-law route below applies to the Federal Circuit and Family Court of Australia (FCFCOA). Other family courts and civil jurisdictions have their own rules.

FCFCOA Family Law Proceedings

Under Family Law Rules 10.01 and 10.02, a party can discontinue an application or response, including part of it or an order sought. Use the approved notice.

Filing at least 14 days before the final hearing does not require leave under the ordinary timing rule. Filing later requires the court’s leave. Leave is also required where a Family Law Act proceeding concerns a party’s property and a party dies before determination. The other parties’ consent does not replace that leave requirement.

NSW Civil Proceedings Under the UCPR

NSW Uniform Civil Procedure Rules (UCPR) rule 12.1 provides for discontinuance with each other active party’s consent or the court’s leave. It covers all claims for relief, including all claims against a particular defendant. Use NSW Form 33, which records the consent or leave basis.

The notice requires the certificate that the plaintiff does not represent another person. Consent notices accompany a consent-based discontinuance, and any consent terms belong in those notices. Rule 12.1 also requires an affidavit where originating process has not been served on a party.

Do not import the family-law 14-day threshold into a NSW commercial file. If the client wants to abandon only one remedy while retaining other relief against the same defendant, determine the appropriate amendment or procedural order. Form 33’s scope must fit the step being taken.

Jurisdiction and form checks

Identify the issuing court before selecting a numbered form. The following matrix separates ordinary civil routes from family proceedings. A court name alone does not identify its division or any specialist restriction.

In Queensland, rule 309 distinguishes the result: an order granting leave effects the discontinuance, with no separate notice required. Where leave is unnecessary, file the approved notice and serve it as soon as practicable. Apply that distinction to the filing sequence below.

Queensland’s current UCPR and the Federal Court’s forms directory identify different numbered notices. Form 27 is not a nationally interchangeable notice. Start with the issuing court and rule, then download its current form.

An old document headed “Federal Circuit Court” can carry superseded rule references. For current general federal law proceedings, use the FCFCOA’s approved notice and General Federal Law Rules 2025. The court’s notice page distinguishes eLodgment for general federal law from the family-law filing channel. Do not use an old rule 13.01 reference as the current permission test.

The Victorian Supreme Court’s civil notice page directs readers to its own rules. Its form does not establish the County or Magistrates’ Court procedure. In other states and territories, select the relevant Supreme, District or Magistrates Court rules separately.

File, Serve and Confirm the Procedural Result

Complete discontinuance through filing and service, then reconcile the result with the outstanding court record.

1. Complete the correct notice using the court number, party names and exact relief or defendant covered. Compare it with the written instructions and settlement terms.
2. Obtain required consent documents or the court’s leave before filing the notice on that basis. Retain the resulting order and comply with its conditions.
3. File through the court’s required channel. The FCFCOA’s family-law instructions use the Commonwealth Courts Portal, with registry filing available where electronic filing cannot be used. NSW’s official forms directory provides online filing for Form 33.
4. Serve the filed notice by the required method and retain proof. In FCFCOA family proceedings, ordinary service must occur as soon as practicable, including on an appointed Independent Children’s Lawyer. NSW UCPR rule 10.1 generally requires prompt service on every other active party, subject to court orders.
5. Compare the accepted notice and any order with the registry record. Confirm which claims remain and obtain confirmation of the treatment of listed hearings before changing the diary.

A rejected filing leaves the intended step incomplete. Read the rejection reason, correct the form or missing permission and obtain an accepted copy. If a hearing remains listed, resolve its status with the registry or obtain directions before assuming attendance is unnecessary.

Keep the accepted notice, permission documents and service confirmation together. The file must show the discontinued scope and the surviving issues, with an owner for every remaining deadline.

Costs and Starting Another Claim

Discontinuance can leave the client liable for another party’s costs, even when no merits judgment occurs. Resolve costs in the settlement documents and procedural orders instead of assuming that withdrawing ends the exposure.

In FCFCOA family proceedings, rule 10.03 permits another party to apply for costs. Unless the court directs otherwise, the application must be made within 28 days after service of the notice. This is a service-based period, so retain the service record.

For NSW civil proceedings, rule 42.19 generally requires the plaintiff to pay the defendant’s costs incurred for the discontinued claims. The court can order otherwise, and the relevant notice can provide otherwise. The NSW Judicial Commission’s costs chapter explains that this is a default provision, with judicial discretion remaining.

The chapter discusses Fordyce v Fordham and Bitannia v Parkline: a party seeking relief from the default needs a sound reason. Agreement to discontinue therefore requires a separate decision about costs. The circumstances of settlement and the parties’ conduct can affect the order.

NSW rule 12.3 permits a fresh claim for the same relief, subject to the consent or leave terms. It does not remove limitation periods, settlement releases or potential estoppel and abuse-of-process objections. Assess those barriers against the proposed claim before advising that proceedings can start again.

Unpaid costs create another obstacle. NSW rule 12.4 permits a stay of further proceedings on the same or substantially the same cause of action until the costs are paid. Family Law rule 10.03 also permits a stay where a party starts a further proceeding on substantially the same matter while ordered costs remain unpaid.

Before closing the file, give the client written confirmation of what ended and what remains. Attach the filed notice and record the costs position, continuing obligations and any limits on bringing a later claim.