Case: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 , 156 FCR 380
Outcome: cited
was appropriate that the challenge to jurisdiction be raised by a Notice of Contention as envisaged by Order 52 r 22(3) of the Federal Court Rules 1979 (Cth). That Rule provides as follows: If the respondent proposes to contend that the judgment should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the judgment, the respondent need not file a notice of cross-appeal, but must: (a) file a notice of the respondent's contention within 21 days after the service upon the respondent of the notice of appeal, or within such further time as the Court or a Judge fixes; and (aa) serve a copy of the notice on the appellant; and (b) give notice to the appellant of the record of evidence or documents before the court below relating to the contention, for inclusion in the appellant's draft index of appeal papers; and (c) at the appointment to settle the appeal papers, request the Registrar to include the record of evidence or documents in the appeal papers. Consistent with that rule, the Respondent wished to have the decision of the Chief Industrial Magistrate " affirmed " and did not seek a " discharge or variation " of such part of the judgment under appeal as embraced the construction of clause 12 which it successfully advanced at first instance. As noted by Branson J in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 , 156 FCR 380 (French J, as His Honour then was, agreeing): [76] As the terms of O 52 r 22(3) make clear, the purpose of a notice of contention is to place the appellant and the Court on notice that the respondent contends that the judgment below (ie the orders made below) can be supported on grounds other than those which the court below relied on when pronouncing the judgment. That is, that even if a ground of appeal is made out, it may not lead to the order the subject of the appeal being set aside or varied. The filing of a notice of contention is not a mechanism for challenging any order made below or for challenging the failure of the court below to make an order to which a party below claimed to be entitled. The importance of resolving the Notice of Contention was considerably reduced, however, when Senior Counsel on behalf of the Respondent accepted that the Appellant could by one means or another have the question as to the proper construction of the Agreements now resolved by this Court. Whether that means was by way of an application being made under the provision identified by Senior Counsel as s 413A of the 1996 Act and returnable instanter , or by treating the present Notice of Appeal as such an application, it was properly accepted by Senior Counsel were questions which could be left to one side. However the question as to the jurisdiction of Chief Industrial Magistrate's Court was resolved, both the Appellant and the Respondent wanted the Court to go on and resolve the construction of the Agreements . But Senior Counsel also maintained that the question as to jurisdiction of the Chief Industrial Magistrate's Court remained an important question which needed to be addressed and resolved.