Notice of discontinuance of appeal/cross-appeal (Form 78)

Part 33 of the Federal Court Rules 2011 governs appeals to the Federal Court from bodies other than courts. Rule 33.31 lets an applicant discontinue such an appeal by filing a notice in accordance with Form 78, without leave at any time before the hearing, or with leave at or after the hearing but before judgment. The rules in Division 33.2 cover appeals under the Administrative Review Tribunal Act 2024 and apply to cross-appeals as if they were appeals (r 33.20(1)). Division 33.2 also applies to appeals from the Superannuation Complaints Tribunal or AFCA (r 33.34) and from the National Native Title Tribunal (r 33.40). A filed notice has the effect of an order dismissing the appeal (r 33.31(2)) and, unless the parties agree otherwise, the discontinuing party must pay each other party's costs (r 33.31(4)).

When you need it

• You have appealed to the Federal Court from a tribunal or similar body under Part 33 and no longer want to continue.
• You are a respondent who filed a cross-appeal and want to discontinue it.
• The parties have settled the appeal and want to record the discontinuance and its terms.
• Not for appeals from a court (such as a single judge or another court): those use Form 126 under rule 36.73.

1. 1

   Heading

   Choose appeal or cross-appeal in the title, insert the name of the tribunal after "On appeal from the", and copy the file number, Registry, Division and parties from the notice of appeal.

2. 2

   Who discontinues

   Insert the name and role of the party discontinuing (for example Applicant or Cross-claimant) and whether it is the appeal or the cross-appeal.

3. 3

   Choose one of three bases

   Keep one option and delete the others: each party consents; the discontinuance is by consent on terms you set out in numbered paragraphs; or the Court granted leave on a stated date. Leave is needed if the appeal has reached the hearing (r 33.31(1)(b)).

4. 4

   Signatures

   Sign as the party or its lawyer. If the discontinuance is by consent, each party or its lawyer must also sign.

5. 5

   Costs note

   The printed note explains that under r 33.31(4) the discontinuing applicant pays each party's costs unless the parties agree otherwise. If you have agreed a different costs outcome, include it in the consent terms.

• File it in the existing proceeding, usually through eLodgment using the file number. Rule 2.21 also allows lodging at a Registry, by post or by fax.
• Serve a copy on each other party to the appeal. Under the Rules "file" means file and serve (Dictionary).
• Without leave, file before the hearing of the appeal starts. At or after the hearing, and before judgment, you need the Court's leave (r 33.31(1)).

• A discontinuance by one applicant does not affect any other applicant in the appeal (r 33.31(3)).
• A filed notice operates as an order dismissing the appeal (r 33.31(2)), so be sure before you file it.
• If costs are agreed, spell out the agreement in the consent terms so there is no later dispute about r 33.31(4).