Notice of cross-appeal (Rule 36.21(1)) (Form 123)

In appeals to the Federal Court from a court (a single judge of the Federal Court, the Federal Circuit and Family Court, or another court), a respondent who wants to appeal from part of the judgment or from an order must file a notice of cross-appeal in accordance with Form 123 (r 36.21(1) of the Federal Court Rules 2011). The notice must state the part of the judgment or the order the cross-appeal relates to, the grounds, briefly but specifically, and the judgment or orders the respondent wants instead (r 36.21(2)). It must be filed within 21 days after the respondent is served with the notice of appeal (r 36.22).

When you need it

• You are a respondent to an appeal started with Form 121 or Form 122 and want a different result on part of the judgment or an order.
• Out of time: apply for an extension in Form 67 with a draft notice of cross-appeal (r 36.23).
• Not if you only say the judgment is right for other reasons: file a notice of contention in Form 124 (r 36.24).

1. 1

   Heading

   Insert the court appealed from and copy the file number and parties from the notice of appeal. If the cross-appeal may affect someone who is not a party to the appeal, join them as a respondent to the cross-appeal (r 36.31(3)).

2. 2

   Judgment and leave

   Give the court, date and place of the judgment. If the cross-appeal needs leave, say so and attach the order granting leave; otherwise delete that paragraph.

3. 3

   Details of cross-appeal

   State the part of the judgment or the order the cross-appeal relates to (r 36.21(2)(a)).

4. 4

   Grounds and orders sought

   Set out briefly but specifically the grounds, then the judgment or orders you want instead (r 36.21(2)(b), (c)).

5. 5

   Address, service and certificate

   Give your address for service and residential or business address, choose the service option, then date and sign. In migration litigation the lawyer signs the section 486I certificate.

• File within 21 days after being served with the notice of appeal (r 36.22), in the same proceeding as the appeal.
• Serve it on the appellant and any other party to the cross-appeal; the Dictionary to the Rules defines file as file and serve.
• A filing fee may apply - check the current fee schedule. The form notes that the papers will be settled before a Registrar.

• The form provides for a cross-appeal brought by leave. Leave is needed to appeal from an interlocutory judgment (s 24(1A) Federal Court of Australia Act 1976), so check whether the part you challenge is interlocutory.
• If the appeal is discontinued, check the position of the cross-appeal; a notice of discontinuance of an appeal does not by itself discontinue a cross-appeal by another party (r 36.73(3), with appellant including cross-appellant under r 36.71).