DAMJANOVIC v NEW SOUTH WALES EGG CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA, CLARKE JA and MEAGHER JA 7 November 1991 [1991] NSWCA 74 Facts: Appeal against injunctions. Evidence at first instance, which was entirely presented by Respondent, was to the effect that Appellant refused to comply with provisions of Egg Industry Act 1983. Egg Industry Act 1983 November 1989) Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 189 Galea v New South Wales Egg Corporation (unreported, NSW Court of Appeal, 21 Held (per curiam): The Appellant could not demonstrate to the Court any reason in fact or law why the judgment below should be set aside. Meagher JA. In this matter, Mr Damjanovic appeals against injunctions which were granted against him by Bryson J at the suit of the New South Wales Egg Corporation. The evidence before his Honour was entirely the evidence which the New South Wales Egg Corporation presented, Mr Damjanovic not seizing the opportunity to give evidence on his own behalf. Not surprisingly in those circumstances, his Honour made such findings as flowed from the evidence which was before him. That evidence is shortly to the effect that Mr Damjanovic perniciously refused to comply with the provisions of the Egg Industry Act 1983. The appeal as filed has eleven distinct grounds. The written submissions given on behalf of the appellant raise yet further grounds. The written submissions raise a ground that the Egg Industry Act 1983 has been repealed. It is withdifficulty that this submission should be accepted by this Court as the matter was not covered by the grounds of appeal. However, if we do consider it and I think in the exceptional circumstances of the case we should, the point does not assist the appellant. The same point was taken in Galea v New South Wales Egg Corporation, a decision of this Court, unreported, given on 21 November 1989 which was adverse to the appellant and accordingly the point does not assist the present appellant. Further grounds taken both in the grounds of appeal and in the written submissions of the appellant consist of an allegation that the legislation in question is void as being against the constitution. The arguments raised by the appellant are identical with those raised in the Galea matter to which I have referred and which were rejected by the Court in that case. Exactly the same reason which activated the Court in that case should activate us in this case. That ground of appeal must therefore be dismissed. Another ground of appeal again relied on by the appellant in argument before us today, is that the Egg Corporation sued the wrong defendant. This ground of appeal likewise must fail. 2 UNREPORTED JUDGMENTS There was a ground of appeal which was raised in the written submissions, but was not raised as an issue at the trial. In those circumstances I think we should not permit the ground to be taken here. This is particularly so as if thisissue had been raised below the Egg Corporation would have been in a position to lead further evidence on the point. It did not do so and the appellant must bear the consequences of failing to put forward any evidence on the issue and failing to raise the issue at the trial and of failing to raise it as a ground of appeal. That ground must also fail. Another group of grounds of appeal relate to an allegation that his Honour incorrectly calculated the damages. There is no substance, I am afraid, in this ground either as the damages were calculated both in accordance with the principles which this Court laid down in the Galea case and in accordance with what the High Court of Australia said in Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185. The only other grounds referred to in the grounds of appeal in effect are raised matters in the nature of pleading ad misericordiam and they must be rejected on the grounds that they raise no additional questions of law. For these reasons, in my view, the unpleasant but necessary consequence is that the appeal should be dismissed with costs. Mahoney JA. I agree. The judgment that was given against Mr Damjanovic was a judgment for the sum of the damages certified, $703,421. Mr Damjanovic has, as Meagher JA has indicated, filed a notice of appeal on a number of grounds. He has appearedhimself and has urged what in substance I think are matters personal to himself. He has not been able to refer the Court to any reason in fact or in law why the judgment should be set aside. As I indicated to Mr Damjanovic the function of this Court is, and can only be, to administer the law. The Court has examined the grounds of appeal to see whether there is any substance in them but as far as can be gathered from the material before the Court, there is nothing that can be said, or within the proper limits can be said, which would allow the Court, properly administering the law, to set aside the judgment which has been given. Mr Damjanovic has pointed to the fact that, as he said, he has no money to pay the amount of the judgment. That is a matter which will have to be considered by the Egg Corporation if and insofar as it seeks to enforce the judgment. But it is not a matter which can affect the decision of this Court today. I am afraid therefore that the only order which it is proper to make is that which has been proposed by Meagher JA. Clarke JA. I agree. Mahoney JA. The order of the Court then is that the appeal must be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: IV PERSON Solicitors for the appellant: JV PERSON Counsel for the respondent: D DAVIES Solicitors for the respondent: CORRS CHAMBERS WESTGARTH