Mimebourne Pty Ltd as Trustee for the Fountain Family Trust v Gambaro [2018] FCA 1619

Mimebourne Pty Ltd as Trustee for the Fountain Family Trust v Gambaro [2018] FCA 1619

Leave to appeal was granted and the appeal allowed because the interlocutory orders were made without giving reasons for judgment and without affording procedural fairness to the parties. Discovery orders were incorrectly imposed on trusts rather than parties, extended beyond relevant issues, and imposed on parties newly joined without opportunity to be heard. It was inappropriate to order discovery when issues had already been admitted or before pleadings were closed after permitted amendments. Procedural fairness required opportunity to make submissions on the final form of orders, which was not extended. The interests of justice required the interlocutory orders to be set aside.

Parties
First Applicant: Mimebourne Pty Ltd as Trustee for the Fountain Family Trust; Second Applicant: Mimevic Pty Ltd as Trustee for the Fountvic Discretionary Trust and Telvic Holdings Pty Ltd as Trustee for the Telvic Discretionary Trust; Third Applicant: Telcal Holdings Pty Ltd as Trustee for the Fountain Family Trust; Fourth Applicant: TSHOBIZ Pty Ltd; Fifth Applicant: Mimevic Pty Ltd as Trustee for the Fountain Family Trust; Sixth Applicant: Deborah Narelle Williams; Seventh Applicant: Mimebourne Pty Ltd as Trustee for the Fountain Family Trust; Eighth Applicant: Telvic Holdings Pty Ltd as Trustee for the Telvic Discretionary Trust; Ninth Applicant: Mimevic Pty Ltd as Trustee for the Fountvic Discretionary Trust; Respondent: Michael Alexander Gambaro
Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Application for Leave to Appeal; Appeal / Interlocutory Orders Appeal; Leave to Appeal Granted and Appeal Determined
Outcome
Leave to appeal granted and appeal allowed; interlocutory orders set aside
Legal Topics
Leave to Appeal, Interlocutory Orders, Discovery, Case Management, Procedural Fairness, Reasons for Judgment, Joinder of Parties, Amendment of Statement of Claim
Practice and Procedure Employment and Industrial Relations Leave to Appeal Interlocutory Orders Discovery Case Management Procedural Fairness Reasons for Judgment +2 more

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Parties

Mimebourne Pty Ltd as Trustee for the Fountain Family Trust

First Applicant

Mimevic Pty Ltd as Trustee for the Fountvic Discretionary Trust and Telvic Holdings Pty Ltd as Trustee for the Telvic Discretionary Trust

Second Applicant

Telcal Holdings Pty Ltd as Trustee for the Fountain Family Trust

Third Applicant

TSHOBIZ Pty Ltd

Fourth Applicant

Mimevic Pty Ltd as Trustee for the Fountain Family Trust

Fifth Applicant

Deborah Narelle Williams

Sixth Applicant

Mimebourne Pty Ltd as Trustee for the Fountain Family Trust

Seventh Applicant

Telvic Holdings Pty Ltd as Trustee for the Telvic Discretionary Trust

Eighth Applicant

Mimevic Pty Ltd as Trustee for the Fountvic Discretionary Trust

Ninth Applicant

Michael Alexander Gambaro

Respondent

Procedural Posture

Application for Leave to Appeal; Appeal / Interlocutory Orders Appeal; Leave to Appeal Granted and Appeal Determined

Legal Issues

  1. 1 Whether leave to appeal should be granted and interlocutory orders set aside
  2. 2 Whether procedural fairness obligations were observed in the making of interlocutory orders
  3. 3 Adequacy of reasons for judgment in interlocutory orders

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the interlocutory orders were made without giving reasons for judgment and without affording procedural fairness to the parties. Discovery orders were incorrectly imposed on trusts rather than parties, extended beyond relevant issues, and imposed on parties newly joined without opportunity to be heard. It was inappropriate to order discovery when issues had already been admitted or before pleadings were closed after permitted amendments. Procedural fairness required opportunity to make submissions on the final form of orders, which was not extended. The interests of justice required the interlocutory orders to be set aside.

Court Disposition

Leave to appeal granted and appeal allowed; interlocutory orders set aside

Orders

  • The applicants be granted leave to appeal against the orders made by the Federal Circuit Court on 30 August 2018.
  • The appeal be heard and determined instanter with the applicants' draft further amended notice of appeal standing as the notice of appeal and taken to be filed and served herein.