Notice of contention (Form 124)

Rule 36.24 of the Federal Court Rules 2011 covers a respondent to an appeal who does not want to cross-appeal from any part of the judgment, but contends that the judgment should be affirmed on grounds other than those relied on by the court below. That respondent must file a notice of contention in accordance with Form 124 within 21 days after the notice of appeal is served. The notice puts the appellant and the Court on notice of the extra grounds, so they can be argued at the appeal. If the respondent wants the result itself changed, the right document is a notice of cross-appeal, which is also due within 21 days after service of the notice of appeal (r 36.22).

When you need it

• You are the respondent to an appeal in the Federal Court and you are happy with the orders made, but want to support them on a different or additional basis.
• The judge below rejected an argument you put that would also justify the same result.
• Not where you want any part of the orders varied or set aside: file a notice of cross-appeal instead (rr 36.21, 36.22).

1. 1

   Copy the appeal heading

   Use the appeal file number, District Registry and Division, state the court appealed from (the Federal Court or another court), and name the appellants and respondents as in the notice of appeal.

2. 2

   Address the appellant

   Insert the role of the party the notice is addressed to, usually the Appellant, and your own role, usually the Respondent.

3. 3

   Keep the two fixed statements

   The form states that you contend the judgment should be affirmed on grounds other than those relied on by the court below, and that you do not seek to cross-appeal from any part of the judgment.

4. 4

   Set out the grounds

   Under "Grounds relied on", state briefly but specifically each ground that supports the judgment. Number them so they can be referred to in submissions.

5. 5

   Date and sign

   Sign as the respondent or the respondent's lawyer (r 2.15) and complete the details at the foot of the front page (r 2.16).

• File within 21 days after the notice of appeal is served on you (r 36.24).
• File in the appeal proceeding, usually through eLodgment using the appeal file number.
• Serve it on the appellant and the other parties to the appeal. Filing under the Rules includes service (Dictionary, "file").
• A filing fee may apply - check the Court's current fee schedule.

• Diary the 21 days from the date the notice of appeal was served, not the date it was filed.
• Grounds that ask for a different outcome belong in a cross-appeal. A notice of contention only supports the orders already made.
• Make sure the grounds were open on the evidence and argument below, and identify where they arise in the reasons.