Part 12 Discontinuance, withdrawal, dismissal and setting aside of originating process
Division 1 Discontinuance of claim
12.1 Discontinuance of proceedings
(cf SCR Part 21, rules 2 and 5; DCR Part 18, rule 1; LCR Part 17, rule 1)
(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to the whole or any part of a claim for relief:(a) with the consent of each other active party in the proceedings, or(b) with the leave of the court.(2) A notice of discontinuance:(a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and(b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.(3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent.(4) If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect.(5) For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.
(cf SCR Part 21, rule 7; DCR Part 18, rule 7; LCR Part 17, rule 8)
(1) A discontinuance of proceedings with respect to a plaintiff’s claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.(2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue.
12.4 Stay of further proceedings to secure costs of discontinued proceedings
(cf SCR Part 21, rule 8; DCR Part 18, rule 8; LCR Part 17, rule 9)
If:(a) as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and(b) before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced,the court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit.Note. See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.19 as to costs payable in relation to discontinued proceedings.
Division 2 Withdrawal of appearance or pleading
(cf SCR Part 21, rule 1)
An active party may withdraw an appearance by leave of the court.
12.6 Withdrawal of matter in defence or subsequent pleading
(cf SCR Part 21, rules 3 and 5; DCR Part 18, rule 2; LCR Part 17, rule 2)
(1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.(2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.(3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.(4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.
Division 3 Dismissal of proceedings etc for lack of progress
12.7 Dismissal of proceedings etc for want of due despatch
(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)
(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.Note. See rule 42.20 as to the effect of dismissal with respect to costs.
12.8 Additional grounds for dismissal of proceedings by Supreme Court
(cf SCR Part 32A, rules 1 and 2)
(1) This rule applies to proceedings in the Supreme Court.(2) The Supreme Court may, of its own motion, make an order dismissing the proceedings if it appears from the Court’s records that, for over 5 months, no party to the proceedings has taken any step in the proceedings.(3) Such an order may not be made:(a) if the proceedings, or any part of the proceedings, are listed for a future date, or(b) if there are any notices of motion or other applications in the proceedings that are yet to be determined, or(c) if a party satisfies the Supreme Court that such an order should not be made.(4) Before such an order is made, notice of the proposed order is to be given to the plaintiff and to each other active party, being a notice that gives each of them a reasonable opportunity to be heard in relation to the proposal.(5) Such a notice is to be sent by post, addressed to the person to whom it is directed:(a) at the person’s address for service, or(b) if the person has no address for service, at the person’s last known address,in an envelope marked with the Supreme Court’s return address.(6) A notice, posted as referred to in subrule (5), is taken to have been received by the person to whom it was addressed even if it is returned to the Supreme Court as having not been delivered to the addressee.
12.9 Additional grounds for dismissal of proceedings by District Court or Local Court
(1) This rule applies to proceedings in the District Court or a Local Court that have been commenced by statement of claim or in which a statement of claim has been filed.(2) The court may, of its own motion, make an order dismissing the proceedings if:(a) a defence or cross-claim is not filed, or(b) a default judgment is not entered, or(c) the proceedings are not otherwise disposed of,within 9 months after the statement of claim is filed.(3) Such an order may be made without notice to the plaintiff or any other party.(4) Such an order may not be made if there are any notices of motion or other applications in the proceedings that are yet to be determined.
12.10 Stay of further proceedings to secure costs of proceedings dismissed
(cf SCR Part 40, rule 8 (2); DCR Part 18, rule 8; LCR Part 17, rule 9)
If:(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.Note. See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.20 as to costs payable in relation to proceedings that are dismissed.
Division 4 Setting aside originating process
12.11 Setting aside originating process etc
(cf SCR Part 11, rule 8)
(1) In any proceedings, the court may make any of the following orders on the application of a defendant:(a) an order setting aside the originating process,(b) an order setting aside the service of the originating process on the defendant,(c) an order declaring that the originating process has not been duly served on the defendant,(d) an order discharging:(i) any order giving leave to serve the originating process outside New South Wales, or(ii) any order confirming service of the originating process outside New South Wales,(e) an order discharging any order extending the validity for service of the originating process,(f) an order protecting or releasing:(i) property seized, or threatened with seizure, in the proceedings, or(ii) property subject to an order restraining its disposal or in relation to which such an order is sought,(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,(h) an order declining to exercise jurisdiction in the proceedings,(i) an order granting such other relief as the court thinks appropriate.(2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.(3) Notice of motion under subrule (2):(a) may be filed without entering an appearance, and(b) must bear a note stating the applicant’s address for service.(4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.