Keane and Rinaldi

[2017] FamCA 300

FAMILY COURT OF AUSTRALIA

KEANE & RINALDI [2017] FamCA 300

FAMILY LAW – PRACTICE AND PROCEDURE

APPLICANT: Mr Keane

RESPONDENT: Mr Rinaldi

FILE NUMBER: SYC 279 of 2011

DATE DELIVERED: 11 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 11 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. The orders made 9 May 2017 be set aside.

2. This matter be listed for mention on 7 September 2017 at 10.30am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keane & Rinaldi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 279  of 2011

Mr Keane

Applicant

And

Mr Rinaldi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 9 May 2017 I made an order that the application Mr Keane made in his Response filed 11 October 2013 is dismissed with no order as to costs. I further removed the matter from the active pending cases list.

2. Mr Keane has been in contact with the case coordinator. At 11.15 on Wednesday 10 May 2017 Mr Keane wrote to the Sydney case coordinator as follows:

   To Whom It May concern,

   I was advised yesterday by the defendant ([Rinaldi] and Partners)  that my matter was dismissed by Justice Watts as I failed to appear for the call.

   I had not received any notification/communications from the courts that my matter was listed on the 9th of May 2017 at 10:30. Please advise.

3. The case coordinator responded to Mr Keane at 13.05 on 10 May 2017 in the following terms:

   Dear [Mr Keane],

   You were advised of the listing of yesterday, by an email sent to you on 15^th March ( see below ).

   That email was sent by the Legal Associate to His Honour.

   Further I am advised that a copy of the Orders will in any case by posted to you in due course.

   This email contained a copy of an email which was purportedly sent to the applicant and respondent on 15 March 2017 informing them of the listing for mention at 10.30am on 9 May 2017. The email address for the applicant was stated to be … This was an error made by the court.

4. Mr Keane replied to the case coordinator at 13.26 on 10 May 2017 as follows:

   The email address that this was typed incorrectly! see below.... my EMAIL is … and not .... So I was not advised of the call up and yet my application has been dismissed incorrectly and unfairly.

5. Mr Keane sent a copy of that email exchange to my associate a 14.26 on 10 May 2017 with the following text:

   As per below I was clearly not notified of yesterdays call up at 10:30 and therefore did not have the opportunity to attend, yet my application was apparently dismissed. As highlighted to the  SYDNEY CASE COORDINATOR the notification was clearly sent to an incorrect email address, certainly not my email address. I am unsure how this could have occurred as I have received numerous emails to my actual email address from Justice Watts Assoc in the past.

   Given the error in the notification to myself, I would request the orders Justice Watts made yesterday be set aside and the matter relisted.

6. It seems clear that the matter proceeded on 9 May 2017 in circumstances where Mr Keane was unaware of the listing of the matter on that day.

7. Rule 17.02(1)(a) Family Law Rules provides that a court may, at any time, vary or set aside an order, if:

   (a)  it was made in the absence of a party

8. I intend to set aside the orders that I made on 9 May 2017 and give Mr Keane an opportunity to be heard.

9. For the purpose I relist the matter on 7 September 2017 at 10.30am.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 11 May 2017.

Associate: 

Date:  11.5.17