F Firm Pty Ltd and Pamplin

[2010] FamCA 313

FAMILY COURT OF AUSTRALIA

F FIRM PTY LTD & PAMPLIN [2010] FamCA 313

FAMILY LAW – ORDERS – Set aside – Re-opening

APPLICANT: F Firm Pty Ltd

RESPONDENT: Ms Pamplin

FILE NUMBER: SYF 3838 of 2006

DATE DELIVERED: 16 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 16 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Ms Torrisi,

AITKEN LAWYERS

Orders

1. That the Orders made by the Hon. Justice Cohen on 9 March 2010 are hereby set aside.

2. That the application of Ms Pamplin on 1 February 2010 is to be re-opened and to be stood-over for hearing to a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym F Firm & Pamplin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3838 of 2006

F FIRM PTY LTD

Applicant

And

MS PAMPLIN

Respondent

REASONS FOR JUDGMENT

1. In these proceedings I dismissed an application on the ground that the applicant had not attended, knowing that this was an appeal from a registrar where I believed, because of the nature of the court record, that before the registrar the same party had not attended.  It has now been disclosed, and I am satisfied that, there was a proper attendance by the applicant for review before the registrar, and the matter was fully defended before that registrar.  I also have been told by Mr Johnston, and accept without question, that the reason for non-attendance before me was that he was not informed, because of the manner of his having been briefed that would allow him to fully appreciate that he had been briefed to appear.  There simply was a mistake in communication between him and his own clerk in circumstances where his instructing solicitor believed that Mr Johnston had been briefed and would attend.

2. Further, the solicitor then appearing for the respondent to the application failed to inform me that before the registrar the matter had been fully defended rather than had been dealt with without appearance of the appellant, despite having had ample opportunity to inform me after I had stated that the records showed that there was no attendance by the appellant before the registrar.  In those circumstances, the appellant has had no ample or proper opportunity to defend the application because of a mistake and should be given that opportunity. 

3. It concerns me that the Court may be considered to be functus, and therefore cannot set aside its orders.  In this particular case, however, there is High Court authority to the effect that such orders obtained in those circumstances should be set aside. That authority does not suggest that an appeal is necessary.  It seems to me perfectly clear that my orders were made as a result of a slip, and in those circumstances, I should be entitled to correct them to overcome the injustice created by them. In those circumstances, I have jurisdiction and power to set aside the orders I made, and I shall do so.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              23 April 2010