Notice of discontinuance (appeal / cross-appeal) (Rule 36.73(1)) (Form 126)

Rule 36.73 of the Federal Court Rules 2011 lets an appellant (which includes a cross-appellant, r 36.71) discontinue an appeal by filing a notice of discontinuance in accordance with Form 126: without leave at any time before the hearing, or with the Court's leave at the hearing, or after the hearing but before judgment. The notice has the effect of an order dismissing the appeal (r 36.73(2)) and does not affect any other appellant (r 36.73(3)). Unless the parties otherwise agree, an appellant who discontinues must pay the costs of each respondent (r 36.73(4)).

When you need it

• You started an appeal or cross-appeal from a court (Form 121, 122 or 123) and no longer want to pursue it, in whole or part.
• The parties have settled the appeal and agreed terms, including on costs.
• Not for appeals from a tribunal, which use Form 78 (r 33.31), and not for ending a first instance proceeding, which uses Form 48 (r 26.12).

1. 1

   Heading

   Choose appeal or cross-appeal in the title, insert the court appealed from and copy the parties, including any cross-appellants and cross-respondents.

2. 2

   What is discontinued

   Insert the name and role of the party discontinuing, and whether it is the whole appeal or cross-appeal, or a part, identified by reference to the numbered grounds or claims.

3. 3

   Consent or leave

   Choose one option: each party consents; the discontinuance is by consent on stated terms, set out in numbered paragraphs; or the Court granted leave on a stated date. Delete the others.

4. 4

   Signatures

   Date and sign as the discontinuing party or its lawyer. If the discontinuance is by consent, each party or its lawyer must also sign, as the form directs.

• File the notice in the appeal proceeding, for example through eLodgment. Without leave it can be filed at any time before the hearing; at or after the hearing, leave is needed (r 36.73(1)).
• Serve a copy on each other party; the Dictionary to the Rules defines file as file and serve.
• Check the current fee schedule; the Court publishes its fees online.

• Agree costs before filing. Without an agreement, the appellant must pay each respondent's costs (r 36.73(4)), as the note on the form says.
• If there is a cross-appeal, decide expressly what happens to it; discontinuing the appeal does not end another party's cross-appeal (r 36.73(3), r 36.71).