Abatement of action
Abatement of action refers to suspension or termination of legal proceedings in an action for want of proper parties or owing to a defect in the writ of service. It has the consequence of putting an end to a law suit. If the matter is to be pursued further, a new action must be brought.
The doctrine of abatement in the English common law context entailed that an action was suspended for want of proper parties or the change of interest of a party, such as marriage, death or bankruptcy. In the Australian context the doctrine of abatement has been abolished and replaced, first by Part 8 r 10 of the Supreme Court Rules 1970 and now by r 6.30 of the Uniform Civil Procedure Rules (UCPR).
Regulation 6.30 of the UCPR states that if a cause of action survives the death or bankruptcy of a party (which is dependent on the particular cause of action), proceedings do not abate. The court may then, in circumstances where interest or liability passes to some other person, make such orders as it thinks fit for the joinder, removal or rearrangement of parties. If, however, the cause of action doesn’t survive the death or bankruptcy of the party, the proceedings will be terminated.
Proceedings can be brought against the estate of a deceased person (excluding purely personal rights) under this regulation so long as they reconstitute the proceedings (ie join, remove or re-arrange parties) within 3 months of the death of the deceased. Pursuant to regulation 6.3, the other party to the proceedings can move to have the cause of action dismissed.
If someone who commenced a cause of action goes bankrupt during the course of the proceedings, the action can still be pursued by the appointed trustee in bankruptcy (see section 60 of the Bankruptcy Act 1966 (Cth)). The trustee has to make an election as to whether they will continue to prosecute the cause of action otherwise the action will have been deemed to be abandoned.