Discontinuance Notice (Form 89)

Order 65 of the Rules of the Supreme Court 1971 (WA) governs appeals and applications for leave to appeal to the General Division, other than criminal appeals under Part 2 of the Criminal Appeals Act 2004 (r 2). An appellant may discontinue an appeal by filing and serving a Form 89 Discontinuance notice (r 17(1)). Unless a judge orders otherwise, an appellant who discontinues must pay the respondent's costs of the appeal, taxed if not agreed (r 17(4)). If the appellant appears to be a person under disability, the notice has no effect until a judge approves it (r 17(2)).

When you need it

• You started a General Division appeal or leave application (usually by Form 83 Appeal Notice) and no longer wish to pursue it.
• You are a respondent who also appealed against the same decision and want to discontinue your own appeal; Form 89 applies with any necessary changes (r 17(5)).
• Not for discontinuing an action started by writ: that is done under Order 23. Not for an appeal to the Court of Appeal, which has its own rules and forms.

1. 1

   Enter the appeal number and parties

   Use the number given to the appeal and name the parties as appellant and respondent, exactly as on the appeal notice.

2. 2

   Keep the notice wording

   The notice simply states that the appellant discontinues the appeal. A respondent discontinuing its own appeal adapts the wording (r 17(5)).

3. 3

   Sign and date

   The appellant or the appellant's lawyer signs and dates the notice.

• File the notice through eLodgment on the eCourts Portal (O 67A r 3). For a document that must be signed, file a .docx copy that states the signatory's name where the signature would go, and keep the signed original (O 67A r 4(7)).
• Serve the filed notice on the respondent (r 17(1)). The Court's forms page lists one copy for filing.
• If the appellant is a person under disability, apply for a judge's approval by filing an affidavit and, unless a judge orders otherwise, an opinion from an independent lawyer (r 17(3)).

• Discontinuing normally means paying the respondent's costs of the appeal (r 17(4)). If you have settled, consider filing a Form 87 consent notice stating the agreed final orders, including costs, instead (r 18).
• Discontinuing your appeal does not end a respondent's own appeal against the same decision (r 17(6)).
• The form is headed 'General Division'. Check that your appeal is a General Division appeal under Order 65 before using it.