Federal Court. Is an application to set aside a notice of discontinuance filed in the Circuit Court interlocutory in nature, with the result that leave is required to appeal against the discontinuance? If so, will leave "only be granted where the decision below is both attended with sufficient doubt to warrant it being considered by a Full Court, and would result in substantial injustice if leave were refused, supposing the decision to be wrong"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is an application to set aside a notice of discontinuance filed in the Circuit Court interlocutory in nature, with the result that leave is required to appeal against the discontinuance?
Question 2: If the answer to Question 1 is 'yes', will leave "only be granted where the decision below is both attended with sufficient doubt to warrant it being considered by a Full Court, and would result in substantial injustice if leave were refused, supposing the decision to be wrong"?
Question 3: Did the Circuit Court have an implied power to set aside a notice of discontinuance and reinstate a discontinued proceeding?
Question 4: Does the power to set aside a notice of discontinuance only arise to prevent an abuse of process of the Court or to protect the integrity of those processes?
The FCA answered those questions as follows: