NEW SOUTH WALES EGG CORPORATION v GALEA [1989] NSWCA 153

NEW SOUTH WALES EGG CORPORATION vy GALEA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 5 June 1989

[1989] NSWCA 153

Mahoney JA This is an application which comes before the court on motion by the New South Wales Egg Corporation. It relates to a hearing of an appeal which has been fixed for 19 July 1989 before this Court. An application has been made on behalf of the appellant, Mr Galea, for leave to adduce fresh evidence before this Court. Whether he will be able to adduce that fresh evidence depends upon whether it will come within the principles relevant to the adducing of fresh evidence on appeal.

The court is informed by both parties that the evidence that will be sought to be adduced falls within three categories. I am adopting the nomenclature which has been adopted by counsel. The three categories are the Gilchrist Report, upon which the court has been told the 1983 Act governing the Corporation's activities was based; secondly, the various extracts from Hansard relating to the 1983 reports; and thirdly, a report called the ACIL Report made in November 1988 relating to the operation of the Egg Industry Act, and no doubt the egg industry itself. It is agreed that the evidence sought to be adduced falls within these three categories.

Mr Davies submits that the court should at this stage order that the admissibility of that evidence be dealt with separately and upon a separate hearing held before the hearing of the appeal. He foreshadows the calling by the Egg Corporation of, as he says, substantial factual evidence in relation to each of these matters. He seeks accordingly for orders for security for costs upon that separate hearing and the consequential vacating of the date fixed for the hearing of the appeal, namely 19 July 1989.

Upon any application to adduce fresh evidence of the kind referred to, questions will inevitably arise as to the admissibility in principle of that evidence. Questions will arise also as to whether, if the evidence be admissible in principle, it is admissible having regard to the principles which have been established generally for the admissibility of evidence which was available at the trial but for some reason or another was not then adduced.