Federal Court of Australia

Crane v Gidley (Liquidator), in the matter of Steel City Formwork Pty Ltd (in liq) (No 2) [2026] FCA 1368

ORDERS

THE COURT ORDERS THAT:

1. The Court declines to direct that the notice of discontinuance filed on 2 July 2026 be removed from the Court file.

2. By operation of r 36.73 of the Federal Court Rules 2011 (Cth), the appellant’s appeal from the judgment of the primary judge dated 3 July 2025 is dismissed.

3. There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MEAGHER J

introduction

1 On 18 June 2026, I made orders granting, in part, leave to the applicant, now appellant, Mr Douglas Crane, to appeal the decision of the primary judge dismissing his amended interlocutory process seeking, under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), to set aside relevant paragraphs of a registrar’s orders dated 26 November 2024 which required him to produce documents to the Court (Document Production Orders). The Document Production Orders were made in the context of an examination summons issued under s 596B of the Corporations Act 2001 (Cth) sought by an originating process filed by the first and second respondents (together, the respondent), in the capacity as liquidator of Steel City Formwork Pty Ltd and Newcastle Formwork Pty Ltd (Companies in Liquidation) on 18 November 2024.

2 The primary judge’s decision appears in Gidley, in the matter of Steel City Formwork (in liquidation) [2025] FCA 739 (Primary Judgment). The decision to grant the appellant leave to appeal, in part, that decision, is contained in Crane v Gidley (Liquidator), in the matter of Steel City Formwork Pty Ltd (in liq) [2026] FCA 770 (Leave Judgment). The factual background to the proceeding appears at [1] – [6] of the Primary Judgment and [1] – [12] of the Leave Judgment.

3 Following the delivery of the Leave Judgment, on 2 July 2026, the respondent filed a notice of discontinuance of appeal (First Notice of Discontinuance), which provided as follows:

Douglas Charles Crane, the Appellant discontinues the whole of the appeal in [the appeal against the orders of the primary judge].

The discontinuance is by consent on the following terms:

1.     There be no order as to costs of the appeal.

2.     The costs order made on 3 July 2025 in favour of the Respondents in [the proceeding before the primary judge] is vacated.

3.     [The Document Production Orders] made on 27 November 2024 in [the proceeding before the primary judge] requiring the Applicant to produce documents are set aside.

4 The First Notice of Discontinuance was signed by the solicitors for the appellant and the respondent.

5 On 3 July 2026, my Associate wrote to the parties’ solicitors directing their attention to r 36.73 of the Federal Court Rules 2011 (Cth), which provides as follows:

36.73  Discontinuance of appeal

(1)     An appellant may discontinue an appeal by filing a notice of discontinuance of the appeal, in accordance with Form 126:

(a)     without the Court’s leave—at any time before the hearing of the appeal; or

(b)     with the Court’s leave:

(i)     at the hearing; or

(ii)     after the hearing and before the judgment is pronounced or the order is made.

(2)  A notice of discontinuance has the effect of an order of the Court dismissing the appellant’s appeal.

(3)     A notice of discontinuance filed by one appellant does not affect any other appellant in the appeal.

(4)     An appellant who files a notice under subrule (1) must, unless the parties otherwise agree, pay the costs of each respondent.

(Emphasis added.)

6 That correspondence noted that the terms on which the First Notice of Discontinuance was filed appeared to be, effectively, that the appellant’s appeal in respect of the orders of the primary judge be allowed. In these circumstances, the parties were requested to advise of their proposed course of action in relation to the First Notice of Discontinuance, and of their availability to attend a case management hearing.

7 On 29 July 2026, the respondent’s solicitor emailed my Associate a notice of discontinuance of appeal dated 29 July 2026 and signed by the parties (Second Notice of Discontinuance), which provided as follows:

Douglas Charles Crane, the Appellant discontinues the whole of the appeal in [the appeal against the orders of the primary judge].

The discontinuance is by consent on the following terms:

1.     There be no order as to costs of the appeal.

2.     The costs order made on 3 July 2025 in favour of the Respondents in [the proceeding before the primary judge] is vacated.

8 The Second Notice of Discontinuance was not lodged with the Court. A case management hearing was held before me on 30 July 2026. At that case management hearing, I sought to clarify with the parties whether they sought that the appeal be allowed by consent, given that this was the effect of the terms of at least the First Notice of Discontinuance. The parties indicated to me that they simply wanted to discontinue the proceeding. Their position was that the appeal proceeding should be discontinued with no order as to costs, and therefore that the Second Notice of Discontinuance be amended by deleting paragraph 2. They indicated that the First Notice of Discontinuance should be withdrawn. As to the First Notice of Discontinuance, I directed the parties to Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; 156 FCR 369 and Chen v Monash University [2016] FCAFC 66; 244 FCR 424, and indicated that on the basis of these authorities, it was not clear that the parties could simply “withdraw” the First Notice of Discontinuance. Further, I indicated that I understood that the parties did not wish to dismiss the appeal. Nor was it appropriate for a respondent to have filed the First Notice of Discontinuance. On that basis, I invited the parties to make submissions outlining their proposed course of action in relation to these matters.

submissions

9 The appellant provided the Court with written submissions which the respondent joined in making. They did not address Christodoulou or Chen. Their submissions focus on paragraphs 2 and 3 of the First Notice of Discontinuance, and they say that the inclusion of these paragraphs means that the First Notice of Discontinuance did not fully comply with r 36.73 of the Rules. They also say that the Second Notice of Discontinuance did not comply with r 36.73 of the Rules, though the basis for the non-compliance is not expressly stated.

10 The appellant’s stated position is that he does not seek to set aside the First Notice of Discontinuance or withdraw the discontinuance of the appeal. He states that he and the respondent are “ad idem as to discontinuing the appeal with no order as to costs”.

11 The parties submit that because the First Notice of Discontinuance did not comply with r 36.73 of the Rules, the application of r 2.27 of the Rules suggests that it should not have been accepted for filing because it did not substantially comply with the Rules. They submit that the Court file should be corrected by removing the First Notice of Discontinuance as a document that should not have been accepted for filing as not substantially complying with the Rules, pursuant to r 2.28(1)(c)(ii). Rules 2.27 and 2.28 provide as follows:

2.27  When documents will not be accepted in a Registry

A document will not be accepted for filing if:

(a)     it is not substantially complete; or

(b)     it does not substantially comply with these Rules; or

(c)     it is not properly signed; or

(d)     it is the same, or in substantially the same terms, as a document a Registrar has refused to accept; or

(e)     the Court has given a direction that the document not be accepted; or

(f)     the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.

…

2.28  Documents accepted for filing—removal from Court file and storage

(1)     A document which has been accepted for filing will be removed from a Court file if:

…

(c)     the Court is satisfied that the document:

…

(ii)     should not, under rule 2.27, have been accepted for filing.

(2)     A party may apply to the Court for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.

…

12 The submissions annexed an unsigned notice of discontinuance, with which the parties intended to sign and file in the place of the First Noice of Discontinuance. It provided as follows:

Douglas Charles Crane, the Appellant discontinues the whole of the appeal in [the appeal against the orders of the primary judge].

The discontinuance is by consent on the following terms:

1.     There be no order as to costs of the appeal.

Principles

The effect of a notice of discontinuance

13 As noted above, a notice of discontinuance has the effect of an order of the Court dismissing the appellant’s appeal: r 36.73(2) of the Rules. Once the notice of discontinuance is filed, the proceeding is at an end: NACU of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1444 at [7]. The Court has an inherent power to set aside a discontinuance, but it is not clear whether the power to do so is limited to cases where the act constituting the discontinuance was a “nullity in the eyes of the law by reason of fraud or mistake”, or whether it extends to cases “wherever the interests of justice dictate that that is the appropriate course”: Christodoulou at [25] – [28]. In Chen at [40] – [44] the Court stated as follows:

The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.

We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.

It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in “the interests of justice”.

The Court in Christodoulou appears to have come to a similar conclusion so far as the existence of an implied power to reinstate an appeal is concerned. While inexactly referring to the Court’s jurisdiction as an “inherent” one, and while referring to English precedent drawn from common law courts, the Court nonetheless considered that an implied power, as we would understand it, exists to reinstate an appeal.

In other respects, however, we do not think that it assists to ask, as it was in Christodoulou, whether the filing of the notice of discontinuance in a given case was a “nullity” by reference to decisions of English courts expounding on the inherent jurisdiction of English common law courts. We do, however, consider that some guidance may be drawn from those English decisions so far as the making out of abuse of process is concerned, as explained below.

(Emphasis added.)

14 There is authority that an appeal will only be reinstated where “the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act”: Chen at [46]. The Full Court went on to state as follows at [47]:

… we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.

(Emphasis added.)

Consideration

15 I do not consider that the parties have demonstrated how the First Notice of Discontinuance is a document that does not substantially comply with the Rules. Therefore, I am not satisfied that the Court file should be corrected pursuant to r 2.28(1)(c)(ii) of the Rules. It is not clear on what basis paragraphs 2 and 3 of the First Notice of Discontinuance render it a document that does not comply with r 36.73 of the Rules. It is not apparent that r 36.73 imposes any requirements as to what a notice of discontinuance must contain. To the extent that the correspondence from my Associate of 3 July 2026 raised issues with the First Notice of Discontinuance, that correspondence was directed to the substance of paragraphs 2 and 3, and raised the possibility that the effect of the First Notice Discontinuance did not mirror the intention with which the respondent had filed it—namely, to effectively allow the appeal by consent.

16 It appears from the parties’ submissions that while they do not seek that the First Notice of Discontinuance be set aside, or to withdraw the discontinuance of the appeal, they do seek that it be removed from the Court file. Though the parties did not address the Court on Christodoulou and Chen, I am satisfied, on the basis of the parties’ submissions and on the face of it, that its filing was a mistake. However, I am not satisfied that the filing of the First Notice of Discontinuance was not a “deliberate and informed act”. There was no sworn evidence before me regarding the circumstances of it being filed, and there is no evidence that the appellant’s intention was other than to discontinue the appeal. The fact that the parties were represented strengthens an inference that they were under no misapprehension as to the effect of the First Notice of Discontinuance. In fact, on the face of it, the First Notice of Discontinuance evinces an intention to discontinue the appeal: cf Christodoulou at [21]. While it might be said that the fact of the respondent being the party filing the First Notice of Discontinuance may enliven the Court’s discretion to set it aside, it was signed by the respondent and the appellant. Therefore, it could not be said that the respondent’s filing of it was an abuse of process (and no allegation as to that was made). Further, that the terms of the First Notice of Discontinuance are to the effect of allowing the appeal against the orders of the primary judge, does not necessarily mean that the appellant’s intention was not to discontinue. Again, no evidence is before me, but it could be said that the First Notice of Discontinuance was filed on the basis of a private agreement between the parties that those orders would not be sought to be enforced.

17 In these circumstances, I am not prepared to set aside the First Notice of Discontinuance.

Conclusion

18 The First Notice of Discontinuance takes effect according to r 36.73 of the Rules, and has the effect of an order of the Court dismissing the appellant’s appeal.

Associate:

Dated:    16 September 2026