Federal Court of Australia

Form 29 : Notice of discontinuance (modified to include heading, signature block and filing party's details as required by Order 41 of the Federal Court Rules)
Version: 2
Rule: Order 22, rule 2
Use: This form should be used if you wish to discontinue (that is, not proceed with) the whole or part of your application or appeal to the Federal Court ('the Court').
Filing fee: There is no filing fee payable for lodging a Notice of Discontinuance. If you discontinue the whole or any part of your application without the leave of the Court, you are liable to pay the costs that the other parties to the proceedings incurred before the discontinuance. The amount of those costs can be agreed between the parties or determined by the Court. If the Court gives you leave to discontinue then it may also order you to pay all or part of the costs of the other parties.
Download: Form 29 in Rich text format

Guide to Form 29

Please read this guide and the form carefully. As the applicant, you are responsible for making sure that your claim is properly discontinued. Although the Court's Registry staff can check your forms and other court papers for completeness (for example, they check for signatures, and that attachments are present and signed by an authorised person within your State or Territory) and give you information about the Court's procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents.

When should you use Form 29?

This form should be used if you wish to discontinue (that is, not proceed with) the whole or part of your application or appeal to the Federal Court.

When can you discontinue an application?

You can discontinue your case at any time if the Court gives you permission (called ‘leave') to do so.

You can also discontinue your case without the leave of the Court in the following circumstances:

1. If a directions hearing has not yet been held.

2. If the directions hearing has been held and the proceedings continues by use of pleadings but the pleadings are not closed.

3. If a hearing has been held but judgment has not been entered. However in this case, you can only discontinue without the Court's leave if you have the consent of the other parties.

If you are unsure which of the above categories applies to your application, you can ask the Court's Registry staff.

However, in most instances, either the leave of the Court or the consent of all the parties will be required before you can discontinue.

If you discontinue the whole or any part of your application you will usually be liable to pay the legal costs of the other parties. The amount of those costs can be agreed between the parties or determined by the Court.

When can you discontinue an appeal?

You can discontinue an appeal from a single judge of the Court at any time before the hearing of the appeal by filing a notice of discontinuance. There is no need to obtain the leave of the Court or the consent of the other parties.

You can also discontinue an appeal from a single judge of the Court at the hearing, or after the hearing and before judgment is pronounced or made, with the leave of the Court .

How do you discontinue an application or an appeal?

1. Get a Form 29 and fill it out. This is the notice of discontinuance. You can get a copy of Form 29 from the Registry or download a copy from the Court's website.

2. If you require the leave of the Court to discontinue, you must first obtain an order granting leave for you to discontinue. You can ask the Court for leave to discontinue at any hearing (including a directions hearing), or at any other time by filing a Form 27 (notice of motion) with a Form 20 (affidavit). Copies of these forms and instructions on how to complete them are available from the Registry or you can download them from the Court's website. It is then up to the Court to decide whether to grant you leave to discontinue, and on what, if any, conditions. The Court may, for instance, grant you leave to discontinue but order that you pay the other party's legal costs.

3. If you require the consent of the other parties to discontinue, you must ask each of the parties or his or her solicitor to sign the notice of discontinuance.

4. The original notice of discontinuance, plus copies of the notice for each other party, must be delivered to the Federal Court. You can do this by bringing the documents to the Registry, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court's website.

Make sure you have a copy of the notice of discontinuance for yourself.

5. If the documents are in the correct form Registry staff will stamp the original and the copies. You must arrange for a stamped copy of the notice of discontinuance to be served on each other party the same day that it is filed.

How to fill in your Notice of Discontinuance

Please read all of these notes before you begin completing the notice of discontinuance. These instructions assume that you are not represented by a lawyer.

Heading

In the spaces provided, write:

•  the Court file number

•  your full name

•  the name of each respondent.

The main part (‘body') of the Notice of Discontinuance

The way you complete this section will depend on whether you are seeking to discontinue the proceedings with the consent of the parties or the leave of the Court.

If you are discontinuing the application and do not need the consent of the other parties or the leave of the Court, write:

“The applicant discontinues the proceedings”.

If you are discontinuing your application with the consent of the other parties, write:

“The applicant by consent discontinues the proceedings”.

If you are discontinuing your application with the leave of the Court, write:

The applicant, pursuant to the leave of the Court granted on [insert the date on which the Court gave you leave to discontinue] discontinues the proceedings.

If you are only discontinuing part of your application, write:

The applicant discontinues the proceedings in respect of claims numbers [insert the claims numbers on your application that you wish to discontinue] of the application.

Date and signature

The notice must be signed and dated.

Filing details

Under the horizontal line at the bottom of the notice write:

•  your name

•  your address for service, telephone number and facsimile number (if any).

Note: your address for service is an address to which the Court or the respondent can deliver or send letters or documents to you. The address must be in Australia. The address must be a street address and cannot be a Post Office Box.