Where a statement of claim has been served on a defendant, but they have not yet taken any step in the proceeding, can the plaintiff file a notice of discontinuance without their consent or leave of the court?
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 (at [75]) has the answer:
In the case of a defendant, an address for service will be notified by means of the notice of appearance. It follows that a defendant is not an “active party” unless and until a notice of appearance has been filed. Rule 10.2 refers to an “interested party”, not an “active party” but, as counsel for the plaintiff pointed out, it would be an odd situation if unfiled affidavits must be served on parties who are not “active” but those which are filed need not.