Mojmir DAMJANOVIC vy NEW SOUTH WALES EGG CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLY and CLARKE JJA 5 June 1989 [1989] NSWCA 57 Mahoney JA Proceedings were had in the Equity Division of the Court between the Corporation and Mr Damjanovic in relation to matters as to which the plaintiff Corporation sought injunctions and orders in respect of the conversion of eggs. By a judgment dated 28 March 1988 his Honour Bryson J granted injunctions and made orders that the proceedings be referred to the Master in Equity to certify matters there referred to and the amount of damages to be paid by the defendant ro the plaintiff Corporation. Subsequently his Honour was in a position himself to deal with the matters the subject of those enquiries, and he did so in a judgment dated 2 March 1989. He certified the amount of the plaintiff's damages to be $703,421, directed entry of judgment for the plaintiff in that amount, and made the appropriate orders for costs. The defendant, Mr Damjanovic, has lodged a Notice of Appeal against the second judgment given by his Honour. I describe the matter in that way without pre-empting the questions which are to be decided in this application. In that Notice of Appeal the defendant Mr Damjanovic sought to raise matters going both to the first judgment and the second judgment given by his Honour. The Corporation has applied for an order striking out pars 1 to 9 of the Notice of Appeal, they being the paragraphs which it contends go, and go only, to matters dealt with in the first judgment: the basis of the application is that if the defendant desired to contest the findings there referred to he could do so only by filing a Notice of Appeal within due time against the first judgment, treating that judgment, for this purpose, as being a final judgment. In answer to that the defendant has filed a notice of motion seeking, insofar as it may be necessary, an extension of time for filing an application for leave to appeal against the first judgment and seeking leave to appeal against that judgment. Both of these applications have been heard together. There has been raised, in the course of the argument, the question of whether the decision of this Court in Smith v Tobain (1987) 10 NSWLR 562 is correct. It has been submitted that it may not be correct or, alternatively, that it is distinguishable upon the ground, in general, that that decision related to a judgment in a matter arising from the Common Law Jurisdiction of the Court, whereas the present matter relates to a judgment given, as it has been described, in the Equity Jurisdiction of the Court. Counsel have referred the Court to Smith v Tobain but have not been in a position to provide the Court with detailed argument based upon the distinction, if there now be such, between proceedings in the Common Law Division and proceedings in the Equity Division for this purpose. 2 UNREPORTED JUDGMENTS The Court is of opinion that this matter should properly be dealt with by the grant of an extension of time for lodging a Notice of Application for Leave to Appeal against the first judgment and the grant of leave to appeal against that judgment if and insofar as those orders are necessary to enable the defendant, under the Notice of Appeal presently filed, to bring before the Court the issues arising under both of his Honour's judgments. The Court does not think that in order to deal with the applications which are now before it it is appropriate to decide the issue of principle which is raised by the submissions made in relation to Smith v Tobain. If in fact it were necessary to decide that matter and, if as a result of that decision, the Court had to consider the application for extension of time for making an application for leave to appeal, and then the application for leave to appeal, it would be of the opinion that in both applications orders should be made in favour of the defendant. The convenient course therefore is to order that, if and insofar as such orders are necessary, they be granted so as to enable the issues in the appeal, constituted by the filing of the Notice of Appeal, to be brought before it accordingly. The Court has taken such a course, as a matter of practice, on a number of previous occasions and it is proper, in my opinion, that that course be taken also in this case. If and when the authority of Smith v Tobain is to be considered it will no doubt be considered following leave in a properly constituted matter where the Court has been referred to all of the authorities and the considerations involved. I would therefore propose that the Court make orders for the extension of time for lodging an application for leave to appeal against the first judgment, and that leave to appeal accordingly be granted. The questions of costs can be considered in due course. Priestley JA I agree. Clarke JA I also agree. The orders of the Court will be that insofar as leave is necessary, the defendant have leave to apply for leave to appeal against the orders made by Bryson J on 28 March 1988, and that leave to appeal be granted accordingly. The Notice of Appeal filed is to be treated as the Notice of Appeal. The costs of today's motions are to be reserved to the appeal.