To Dismiss or Discontinue, that is the Question

In any court matter, there will always reach a point where a case needs to be finalised. Often a court matter does not proceed to a full hearing and parties can come to an agreement to resolve their differences. In these circumstances, you should consider whether a dismissal or discontinuance of proceedings is appropriate.

First, it is critical to note the distinction between ‘dismissal’ and ‘discontinuance’ of proceedings. Dismissal of proceedings is an order made by the court to dismiss a case or application usually by way of consent orders. Discontinuance, on the other hand, is where the party who brought the case cease to proceed further with the court proceedings.

Another important distinction is where the plaintiff and the defendant desire that no further action can be brought, it is best to dismiss the proceedings. If one of the parties, however, wishes to bring another claim which is on the same or similar grounds, then they may do so if prior proceedings were discontinued. Reg 12.3 of the Uniform Civil Procedure Rules outlines that the discontinuance of proceedings does not prevent a plaintiff from claiming the same relief in fresh proceedings. Therefore, it is often most favourable for proceedings to be dismissed rather than discontinued. This is because the nature of dismissing a claim will ensure that the matter cannot be brought back to court. 

A recent High Court decision of UBS AG v Tyne [2018] held that a subsequent claim amounted to an abuse of process, which not only highlights the importance of ensuring whether a claim is discontinued or dismissed but also a claim should be dealt with expeditiously. 

Lincoln Legal has represented many clients and obtained favourable outcomes without the need for court hearings. Our lawyers have dealt with all kinds of disputes such as employmentcontractual disagreementsdefamationmotor vehicle accidents, fencing disputes and many more. Contact us today by calling or visiting us at one of our offices in HurstvilleWaterloo and Crows Nest.

Disclaimer: The information above is intended to be general information only and it should not be relied upon it as legal advice. If you seek professional advice please feel free to contact the team at Lincoln Legal or make an enquiry.