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. The applicant, Mr Galea, will in relation to this evidence have to surmount those two hurdles. It may be there will be others as well. Any hearing of the application for leave to adduce the fresh evidence would involve a determination at the outset of the admissibility of classes of evidence of these three kinds in principle; that is, it would involve the consideration, as I have described it, of the first hurdle. It seems to me that the appropriate course to be followed is to allow the application for leave to adduce evidence of these three kinds to be dealt with by the appeal court upon the hearing of the appeal. The court may be able, as it would ordinarily do, to rule as a matter of principle upon the admissibility of 2 UNREPORTED JUDGMENTS evidence of those three kinds. It may then rule in relation to the class or classes of evidence admissible in principle whether the second hurdle has been surmounted. No doubt evidence will then be before it as to why, particularly in relation to the, first and second categories of evidence, evidence was not called and put before the court at the trial. If no satisfactory explanation is given as to the failure to call that evidence at the trial, then it may well be that for that reason the evidence will not be admitted by the court on the appeal. But that is not a matter that I desire to pre-empt. I think the appropriate course is to leave the matter to be ruled upon by the Appeal Court on 19 July 1989. If it concludes that as a matter of principle material may be tendered in relation to these three categories of evidence, or any one of them, then it will be appropriate for the court to consider, in the light of what then appears, what will be the appropriate method of receiving that evidence and of assembling it in a form appropriate to be dealt with on appeal. If it appears that there is no significant factual material in addition to the reports themselves, then the court will no doubt make an appropriate order. If it appears that the Corporation should be given the opportunity to call further factual evidence to deal with the material which as a matter of principle it has held to be admissible, it can make an appropriate order. It can then deal with the questions of security for costs. Mr Davies has submitted that there is involved in this course a potential detriment to him in that the Court of Appeal might order that all or portion of the evidence contained in these categories of evidence be admitted and then proceed with the application to adduce fresh evidence and conclude it. The detriment to him would be that he would then not be in such a state of preparation that he could then call all of the fresh evidence he would wish to call. That is a matter which will no doubt be taken into account by the court on the appeal. I would anticipate, without in any way pre-empting the decision of the court that, if a real case of prejudice were made, the court would make an appropriate order for adjournment. If it were thought unreasonable that the Corporation should, in anticipation, undertake full preparation for the adducing of factual evidence in relation to each of these categories of evidence, then the court would no doubt grant an appropriate adjournment. It may be that it would be proper for the Corporation to assume that the court would, should evidence of this kind require a substantial case in reply, make an appropriate order for adjournment. However, as I have said, I do not pre-empt the order of the court in those circumstances. Therefore I propose to order that the present application be dismissed. Mr Davies has indicated that in that event order No 2 which was made by the learned President on 3 April 1989 will require an amendment. Order | on that occasion was to the effect that Mr Galea should file affidavits indicating the fresh evidence which he sought to be adduced, and should file those affidavits on or before 19 May 1989. Order 2 required that the Corporation, if it wished to rely, in answer to those affidavits, on factual material, should file an affidavit as to it on or before 6 June 1989. The course which I have now indicated is appropriate has been made having regard to material which was not then before the learned President, namely, evidence as to the material which now, as the parties agree, constitutes the fresh evidence which is to be adduced. In view of the new material which is before the court I think it is appropriate that the Corporation be released from the effect of Order 2 of the President's order of 3 April 1989. Having regard to what I have URJ NEW SOUTH WALES EGG CORPORATION v GALEA (Mahoney JA) 3 said, I do not think it would be appropriate for the Corporation to file affidavits dealing, in advance and in detail, with the factual matters which may be raised if the three categories of evidence be ultimately held to be admissible. I think the assembling of evidence in reply is a matter which may be dealt with by the Court of Appeal on 19 July 1989. It seems to me therefore that the appropriate order to be made is that the motion filed by the Corporation on 23 May 1989 be dismissed. The question arises as to the appropriate order for costs in that regard. What do you say, Mr Davies? MR DAVIES: I would ask that they be costs in the appeal. MAHONEY JA: That seems a reasonable order. The order I make is that the application of 23 May 1989 by the Egg Corporation be dismissed, costs to be costs in the appeal. MR SHULZE: There is one other aspect in regard to these particular documents. Does my friend accept that these are the actual documents. MAHONEY JA: I think that is a matter you will have to take up with Mr Davies. If all that is sought to be put in is the reports, it may be that a question of the correctness of the evidence will be in issue, but the fact the reports are embodied in the particular documents may not be in contest. That is a matter you will have to look at.