Discontinuance of a claim

An applicant or appellant in proceedings can voluntarily discontinue their claim or a part of their claim against a respondent under rule 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provided the other party or parties consent  or the Industrial Relations Commission of New South Wales (Commission) grants leave (permission) for the proceeding to be discontinued.²

It is common for consent to be obtained as a result of an agreement that may be reflected in a deed or otherwise reduced to writing.

How to file for a discontinuance? 

A discontinuance is most commonly sought following an agreement being reached by all parties that resolves the claim.  In the absence of agreement by all parties to discontinue you need leave (permission) of the Commission to discontinue proceeding. You can seek it by filing an Application for leave by email, post or in-person.

Upon the Commission granting leave or where all parties consent you should file a Notice of Discontinuance which must be filed through the NSW Online Registry, or by email, post or in person.  The Commission has a discretion to waive the requirement. 

Where the discontinuance is by consent the Notice of Discontinuance must be signed by or on behalf of all parties and must include a certificate that states:

• the applicant or appellant does not represent any other person;³
• each party in the proceedings has consented to the discontinuation;⁴ and
• the terms on which consent for discontinuance was reached.⁵

If the Notice of Discontinuance is filed with leave of the Commission, it need only be signed by the filing party and must include a statement noting the date when the Commission granted leave.

The effect of discontinuance 

Parties should carefully consider the decision to file a Notice of Discontinuance because the action is self-executing and will bring the proceeding to an end.⁶

A discontinuance does not bring a cross-claim to an end. A respondent may bring a cross-claim or a cross appeal against an applicant in relation to an issue connected to the original proceeding.⁷ A cross-claim is considered a different proceeding⁸; and may proceed even if the original proceeding is discontinued.⁹ Likewise, the original proceeding can continue if the cross-claim is discontinued.¹⁰

Can proceedings be reinstated or recommenced after filing a discontinuance?

Subject to the terms of consent to the discontinuance or of any leave to discontinue,¹¹ a new application for the same claim can be filed.¹² However, once proceedings have been discontinued a further application making the same claim could be regarded as an abuse of process and struck out or permanently stayed.¹³

Any subsequent claim must be filed within any time limitation, or an extension of time granted to bring the application out of time (if that is available). 

The Commission has a discretion where the circumstances justify to set aside a discontinuance and reinstate proceedings, such as where there is a void settlement agreement, abuse of process, fraud, or duress.¹⁴

What about legal costs?

A party may be liable for the other party’s costs if the matter is discontinued without consent and without agreement as to costs. However, costs are only ordered in the Commission in limited circumstances,¹⁵ so it is relatively rare for the party discontinuing the proceeding to have to pay the other parties’ costs.  Where costs are to be paid the Commission may stay further proceedings on substantially the same cause of action until those costs are paid.¹⁶

Dismissal

The Commission has the power to order the dismissal of proceedings and bring a matter to an end. Unlike the discontinuance of a claim, the dismissal of proceedings is an order issued by the Commission. 

The Commission may order that a proceeding be dismissed after hearing all the evidence and submissions from the parties, that is, after a full hearing of the merits of the case.   This is the usual order if the applicant or appellant loses their case.

The Commission may also dismiss proceedings without a full hearing in certain circumstances.  This is referred to as a summary dismissal.

The reasons why the Commission might summarily dismiss proceedings include:

• no reasonable cause of action;¹⁷
• lack of evidence;¹⁸
• proceedings are frivolous or vexatious;¹⁹
• abuse of process; ²⁰
• death of a party;²¹
• the applicant has not appeared;²²
• a settlement has been reached, and there is no longer a cause of action;²³ or
• for want of due despatch – for example where there is a lack of progress because a party has not listened to repeated cautions, followed practices or procedures and ignored directions causing unnecessary delays.²⁴

The effect of dismissal 

Subject to the terms on which any order for dismissal is made, the dismissal of proceedings does not prevent an applicant from filing a new application for the same claim or relief.²⁵ However, if the order for dismissal of the proceedings follows a hearing on the merits the applicant will not be entitled to claim any relief in respect of the same cause of action in any subsequent proceedings, in the Commission or elsewhere.²⁶

Setting aside originating process

An originating process means the process by which proceedings are commenced (often called an application) and includes the process by which a cross-claim is made.²⁷

The Commission has the power to make any of the following orders on the application of a respondent before the respondent needs to file a Notice of Appearance and otherwise commence their substantive defence of the proceeding:

• set aside the originating process;
• set aside the service of the originating process on the respondent;
• declare the originating process has not been duly served on the respondent,
• discharge any order giving leave to serve the originating process or confirm service of the originating process outside NSW;
• discharge any order extending the validity for service of the originating process;
• protect or release property seized, or threatened with seizure, in the proceedings, or
• protect or release property subject to an order restraining its disposal or in relation to which such an order is sought;
• declare the Commission has no jurisdiction over the respondent in respect of the subject-matter of the proceedings;
• decline to exercise jurisdiction in the proceedings; or
• grant other relief as the Commission thinks appropriate.²⁸

How to apply for such orders? 

The respondent must file a Notice of Motion with the NSW Online Registry within the time limit for the respondent to enter an appearance in the proceedings.²⁹ The Notice of Motion must bear a note stating the  address for service of the person applying for the orders.³⁰ Alternatively, the Notice of Motion can be submitted by email, post or in-person. 

Can the Commission’s decision be appealed?

Leave to appeal any decision of the Commission, including a decision to summarily dismiss or set aside an originating process, can be sought from a Full Bench of the Commission.

^{1 Uniform Civil Procedure Rules 2005 (NSW), Part 12, Division 1, r 12.1(1)(a).; 2 Ibid r 12.1(1)(b).; 3 Ibid r 12.1(2)(a). 4 Ibid r 12.1(2)(b).; 5 Ibid r 12.1(3).; 6 Narayan v MW Engineers Pty Ltd (2013) 231 IR 89 [6]; citing Tomlinson v Leveda Inc (1996) 65 IR 178, 180.; 7 Civil Procedure Act 2005 (NSW) s 22.; 8 Uniform Civil Procedure Rules 2005 (NSW) r 12.1(5).; 9 Uniform Civil Procedure Rules 2005 (NSW) r 9.10(1)(b).; 10 Ibid r 9.10(2)(b).; 11 Ibid r 12.3(2).; 11 Ibid r 12.3(1).; 13 UBS AG v Tyne [2018] 265 CLR 77 at [59].; 14 Newell v Chesterman [2023] FedCFamC2F 1074 at [12] – [17]; Boncales v Secretary, Department of Education (No.4) [2025] NSWIRComm 1079 at [65].; 15 Industrial Relations Act 1996 (NSW) s 181.; 16 Uniform Civil Procedure Rules 2005 (SNW) r 12.4.; 17 Ibid 13.4(1)(b).;18 Ibid r 29.9(1).; 19 Ibid r 13.4(1)(a) and s 162 of the Industrial Relations Act 1996 (NSW); 20 Ibid r 13.4(1)(c).; 21 Ibid r 6.31(2).; 22 Ibid r 13.6(1).; 23 Howey v Mars Australia Pty Limited t/a Mars Petcare Australia [2012] FWA 6259 at [97]; and Tomas v Symbion Health [2011] FWA 5458 at [59].; 24 Ibid r 12.7(1); State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at [8].; 25 Civil Procedure Act 2005 (NSW) s 91.; 26 Ibid.; 27 Civil Procedure Act 2005 (NSW) s 3.; 28 Uniform Civil Procedure Rules 2005 (NSW) r 12.11(1).; 29 Ibid r 12.11(2).; 30 Ibid r 12.11 r 12.11(3)(b).}