What is the Difference between Legal Proceedings being Dismissed or Discontinued?

What is the Difference between Legal Proceedings being Dismissed or Discontinued?

Jasmine BurrowsAuthor: Jasmine Burrows, Progressive Legal

legal proceedings

Legal proceedings can take various paths, with two common outcomes being dismissal and discontinuance.  

While these terms might appear interchangeable, they hold distinct legal meanings that can significantly impact the parties involved and the course of proceedings.  

This article will deal with the differences between dismissal and discontinuance of proceedings in the context of litigation proceedings and trade mark proceedings.  

What is the difference between proceedings being dismissed or discontinued in litigation?

Let’s unpack the difference between the two terms within the context of litigation:

Dismissal of proceedings

Dismissal is an outcome where a Court terminates a case before a final Judgment is rendered on its merits. This action may be initiated by the Court itself or by a party to the proceedings.  

Various reasons can lead to dismissal, including lack of jurisdiction, failure to follow procedural rules, statute of limitations expiration, or lack of evidence to support a claim.  

In cases where a plaintiff fails to prosecute a claim diligently or comply with Court orders, a Court may dismiss the case for want of prosecution.  

Discontinuance of Proceedings

Discontinuance, on the other hand, is a voluntary action initiated by the plaintiff to halt the litigation process. This decision can be made for various reasons, such as a settlement being reached between parties, the plaintiff’s decision to no longer pursue the claim, or other strategic considerations.  

Key Differences

Initiation: Dismissal can be initiated by the court or a party, while discontinuance is solely initiated by the plaintiff with the consent usually required of the defendant(s). 

Involuntary/Voluntary: Dismissal can be either involuntary (by the court) or voluntary (by the plaintiff or petitioner). Discontinuance is always voluntary. 

Effect on Re-filing: A dismissal has a more final effect compared to discontinuance. While a case can be re-filed after a discontinuance, a dismissal generally cannot be re-litigated on the same grounds. This is further explained below. 

To Dismiss or Discontinue in Litigation?

So, imagine you’re in a situation where someone is suing another person, and both the plaintiff and defendant agree that they don’t want any more legal action over this matter. In that case, it’s a good idea to officially end the case, and that’s what we call ‘dismissing the proceedings.’ 

Now, if things are a bit more complicated and one of them wants to make a similar claim in the future, they can do that, but only if the first round of legal action was discontinued. This rule, known as Regulation 12.3 of the Uniform Civil Procedure Rules, says that discontinuing the proceedings doesn’t stop the plaintiff from asking for the same solution in a completely new case. 

It’s often better for both sides if the case is actually dismissed rather than just stopped. Why? Well, when a case is dismissed, it means the issue is truly settled and can’t be brought back to court. On the other hand, if the case is just discontinued, there’s a chance it could come back in the future. So, to make sure everyone’s on the same page and the matter is truly closed, it’s usually a smart move to go with the dismissal route. 

Case Law

The below case involved proceedings in three different courts and lasted for around 8 years:

UBS AG v Tyne [2018] HCA 45

In this case, Mr. Tyne discontinued one proceeding and commenced another. This ultimately amounted to an ‘abuse of process.’ It resulted in delay, wasted costs, and poor public perception. 

This particular case teaches us a couple of important lessons. First, it underscores the importance of understanding whether you should discontinue or dismiss legal proceedings. You need to choose the right way to handle it to avoid any problems down the line. 

Secondly, the case also shines a light on the fact that dealing with claims quickly and efficiently is really crucial. This means not dragging things out unnecessarily, but getting things done in a timely manner. 

What is the Difference between Proceedings being Dismissed or Discontinued in Trade Mark Proceedings?

Section 51.6 of the Trade Marks Manual of Practice and Procedure explains the dismissal or discontinuance of trade mark opposition proceedings.  

6.1 Proceedings Dismissed Due to Failure to Provide Security for Costs 

If someone opposes the registration of a trade mark or applies to remove a trademark for non-use, and they are not from Australia, the Registrar can ask them to pay money as security for the costs of the proceeding. If they don’t pay, the Registrar can dismiss the proceedings. 

6.2 Proceedings Discontinued by Withdrawing Application or Notice of Opposition

If someone submits an application or notice of opposition for a trademark, they can choose to withdraw it at any time before a decision is made by the Registrar. This applies to people who might have obtained rights related to the trademark as well. If the application or opposition is withdrawn, the legal proceedings are discontinued. 

6.3 Proceedings Dismissed Due to Inadequate Statement of Grounds and Particulars

If the Statement of Grounds and Particulars provided by someone opposing a trademark are not sufficient according to the rules mentioned, the Registrar can dismiss the opposition. Both parties are informed of this dismissal. The decision to dismiss can be reviewed by a different legal entity called the Administrative Appeals Tribunal. 

Key Takeaways

In the legal landscape, the terms ‘dismissal’ and ‘discontinuance’ represent distinct outcomes that mark the conclusion of legal proceedings. Understanding the differences between these concepts is vital for business owners, legal practitioners and litigants, as they hold varying legal implications and consequences. This article looked at the difference between proceedings being dismissed or discontinued in two different contexts; in litigation and in trade mark proceedings.  

If you have further questions on the difference between proceedings being dismissed or discontinued, feel free to contact us at Progressive Legal. Simply give us a call on 1800 820 083 or fill out the contact form on this page.

*NB// The contents of this article are information only and should not be relied on as legal advice. Please seek specialist legal advice in relation to your particular situation.

(c) Progressive Legal Pty Ltd – All legal rights reserved (2023)

Contact Us

  • By submitting this form, your information will be dealt with in accordance with our Privacy Policy. You agree to receive emails from us, however you can unsubscribe at any stage.
  • This field is for validation purposes and should be left unchanged.

Tailor Made Legal Documents

We can provide you with tailored Legal Documents in a number of areas including: Intellectual Property Law, Commercial Law, Privacy Law, Workplace Law, Corporate Law, and Litigation / Dispute Resolution.

Click here to request a fixed-price Legal Document and have a look at the range of different documents we can help you with.