12 Disposition without Trial

Plaintiff may discontinue a proceeding or withdraw

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Plaintiff may discontinue a proceeding or withdraw any part of it; and Defendant may discontinue a counterclaim or withdraw any part of it: before the close of pleadings; or any time, with Court’s leave or consent of all other parties.
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Discontinuance & Withdrawal cont. So, Plaintiff can discontinue as of right prior to close of pleadings (r 25.02(2)(a) After close of pleadings need consent of either: The court; or The other parties (r 25.02(2)(b), r 25.03) No leave from court required (r 25.04(1)) Consent of party required (r 25.04(2)) Service requirements (r 25.04(3))
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Discontinuance & Withdrawal cont. Plaintiff may withdraw a defence to counterclaim in whole or part & Defendant may withdraw its defence in whole or part at any time (r 25.02(3) & (4)) Defendant who has joined a third party may discontinue the claim made against the third party with the Court’s leave or with the consent of the third party at any time (r25.02(6))
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Consequences of Discontinuance On discontinuance, Plaintiff normally becomes liable for Defendant’s costs (r 25.05, see also r 63.15) Discontinuance does not give rise to issue estoppel, and does not preclude a plaintiff from bringing fresh proceedings (r 25.06)
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Facilitating Settlement Settlement is considered highly desirable, so rules have been developed to encourage parties to engage in good faith settlement negotiations. Rules are designed to encourage open and frank discussions and to put pressure on parties to accept reasonable offers.
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Terminology relating to Settlement ‘Without prejudice’ Calderbank letters Offers of Compromise 35
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Without Prejudice Frank negotiations, that lead to settlement, often involve admissions. Law protects negotiations in the course of settlement by making them ‘without prejudice’. This means they are inadmissible inadmissible in evidence. in evidence.
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Calderbank Offer Name comes from an English family law case ( Calderbank v Calderbank ) which sanctioned such offers. An offer that is stated to be ‘without prejudice save as to costs’. It is admissible into evidence if, and when, the court is consider costs. Eatock v Bolt (No 2) [2011] FCA 1180 (19 October 2011)
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Offers of Compromise Order 26 Offer is Without prejudice No mention of the offer is to be made to the court until after all questions of liability and relief to be granted have been determined Offer does NOT get filed with the court
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Procedure for offers of compromise In writing, incl statement that it is an offer under Order 26 (r 26.02(3)) Serve on other party at any time before judgment (r26.03(2)) Party receiving offer must give written acknowledgement within 3 days (r 26.03(3.1)) Can specify a time limit for acceptance. If no time specified, offer is open for 14 days or until judgment, whichever is sooner (r26.03(3)) Can serve multiple offers.
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Party and party costs Rule 63.29 all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed
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Solicitor and client costs R 63.30 all costs reasonably incurred and of reasonable amount
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