Mimebourne Pty Ltd as Trustee For The Fountain Family Trust v Gambaro

Mimebourne Pty Ltd as Trustee for the Fountain Family Trust brought an appeal against Gambaro, seeking leave to appeal and a consequential appeal from interlocutory orders made by the Federal Circuit Court. The orders in question were made without reasons and concerned discovery and case management. The appeal was heard by the Full Court of the Federal Court. The primary legal issues were whether the Federal Circuit Court had breached its common law duty to provide reasons for interlocutory orders, and whether the discovery orders were properly made against trusts rather than their members, and in respect of issues admitted on existing pleadings before the joinder of new issues.

The Full Court held that the Federal Circuit Court had breached its common law duty to provide reasons for the interlocutory orders. The court emphasised the importance of case management principles, particularly the need for procedural fairness in interlocutory matters that could result in the adjournment of a trial. The court found that the parties were informed they could make submissions on the final form of the interlocutory orders, but were not actually given the opportunity to do so, which constituted a breach of natural justice. Additionally, the court found that the discovery orders were improperly made against the trusts rather than their members and in respect of issues admitted on existing pleadings before the joinder of new issues. The Full Court set aside the interlocutory orders and allowed the appeal.

The Full Court granted the applicants leave to appeal and set aside the orders made by the Federal Circuit Court on 30 August 2018. The appeal was heard and determined instantly, with the applicants' draft further amended notice of appeal standing as the notice of appeal. There was no order as to costs.