Background
Douglas Charles Crane had obtained leave in part to appeal a decision refusing to set aside document-production orders made in connection with examinations sought by the liquidator of Steel City Formwork Pty Ltd and Newcastle Formwork Pty Ltd. After leave was granted, the respondent filed a notice, signed by both parties’ solicitors, stating that Crane discontinued the appeal by consent.
The notice also purported to vacate the costs order below and set aside the document-production orders, terms that effectively contemplated allowing the appeal rather than merely discontinuing it. After the Court raised that inconsistency, the parties said that they intended only to discontinue the appeal with no order as to costs. They asked the Court to remove the filed notice under rr 2.27 and 2.28 of the Federal Court Rules 2011 (Cth) and proposed filing a replacement notice.
The Court’s Holding
Justice Meagher declined to remove the first notice of discontinuance from the Court file. The parties had not shown that the notice failed substantially to comply with the Rules: r 36.73 did not prescribe requirements that made the additional terms concerning costs and document production noncompliant.
Although the filing appeared mistaken in some respect, there was no sworn evidence showing that discontinuance was not a deliberate and informed act. The notice was signed for both parties and, on its face, expressed an intention to discontinue the appeal. Under r 36.73(2), its filing therefore had the effect of a court order dismissing the appeal. The Court made no order as to the appeal’s costs.
Key Takeaways
- A filed notice of discontinuance under r 36.73 ends an appeal and operates as an order dismissing it.
- Terms seeking substantive relief associated with allowing an appeal do not, without more, establish that the notice should never have been accepted for filing.
- Setting aside the effect of a deliberate discontinuance requires a proper evidentiary and legal basis; an apparent drafting mistake alone is insufficient.
Why It Matters
The decision underscores the immediate and consequential effect of filing an appeal discontinuance in the Federal Court. Parties cannot assume that an incorrectly framed notice can simply be withdrawn, removed, or replaced after filing.
Practitioners settling an appeal should separate the discontinuance itself from any substantive orders they want the Court to make and should confirm that the document accurately reflects the intended procedural outcome before it is filed.