1.7: Interpreting these rules
4.36: Discontinuance of claim

Case Summary

At the scheduled Application in an Originating Notice Action, the Applicant sought to withdraw its Application. In response, the Respondent argued that the Court should dismiss the entire Action to prevent the Applicant from reviving the matter in the future. The Respondent submitted that Rule 4.36(2)(b), which refers to the “discontinuance” of an Action (but not to a “withdrawal” of an Originating Notice Application), should apply by analogy under Rule 1.7(2) to this particular instance. The Court agreed: the withdrawal in this matter was an analogous situation because the Application was on the verge of being heard when it was withdrawn by the Applicant.  The Court stated: 

The rules may be applied by analogy to any matter arising that is not dealt with in the rules. 

Master Prowse then determined that the reason that a Court’s permission is required for a Discontinuance under Rule 4.36(2)(b) is to prevent a Plaintiff, who has caused a Defendant to expend time and resources in defending an Action, from unilaterally Discontinuing an Action, which would leave a Plaintiff free (subject to limitations issues) to re-litigate the same issues at a time of his or her choosing in the future.

Because the Respondent in this case had expended much time and expense in preparing for the Application, and because the Applicant had unilaterally decided to withdraw its Application because of unfavourable evidence it had acquired since the Originating Notice Action had been filed, the Court allowed the Applicant to withdraw its Application but on the basis that it could not revive the Originating Application. The Applicant could bring proceedings against the Respondent in the future, but only on grounds not presently available to it.

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