GALEA v NEW SOUTH WALES EGG CORPORATION

Court of Appeal (NSW)|1989-10-05|Before: Needham J, Kirby P

KIRBY P, SAMUELS and MEAGHER JJA 5 October 1989, 21 November 1989

PRACTICE and PROCEDURE - appeal out of time - extension of time - considerations relevant - explanation for the failure to appeal within time - demonstration of an arguable case - appellant announces to court by senior counsel that no appeal will be brought against declarations and orders for the payment of damages - purported appeal six months later, after damages assessed - whether within time - whether extension should be granted - held: (1) The appeal was not within time and the appellant required an order extending time to add the grounds of challenge to the earlier orders.

Smith v Tabain (1987) 10 NSWLR 562 and National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd and Ors, Court of Appeal, unreported, 21 June 1989; (1989) NSWJB 128 distinguished;

CONSTITUTIONAL LAW - State Act - validity of - challenge to as in breach of Magna Carta, Imperial Acts, fundamental rights and the suggested limitation in the constitutional provision empowering laws to be made for the "peace, welfare and good government" of the State - whether arguable case such as would involve a substantial injustice to the appellant if he were denied the opportunity to argue it - held: (Semble) The appellant's case did not have legal merit and accordingly no substantial injustice was done in the circumstances by refusing him leave to add the constitutional grounds of challenge.

Union Steamship Co of Australia Ltd v King (1988) 62 ALJR 645, 648; Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 applied; Jago v The District Court of New South Wales, unreported, High Court of Australia, 12 October 1989 referred to.

DAMAGES - statutory corporation - conversion of eggs which by statute are vested in Corporation - "rebel" egg farmer refuses to supply eggs - dispute as to hen (and egg) count

whether count based on admissible evidence - whether damages payable in the circumstances - held: (1) The evidence relied upon to calculate the damages was admissible; (2) Evidence tendered to challenge the calculation was inadmissible; (3) No error was shown in the computation of damages. Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 applied. PRACTICE and PROCEDURE - fresh evidence on appeal - held: Not receivable except in special circumstances.

Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235;

Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730.

STATUTES - repeal - effect of on statutory corporation - effect of on pending appeal - held: The proceedings remained on foot. Interpretation Act 1987, s30, s53 applied.

WORDS AND PHRASES - "peace, welfare and good government".

Constitution Act 1902, s5. Egg Industry Act 1983, s8, s24, s31. Egg Industry (Repeal and Deregulation) Act 1989, s7(3). Imperial Acts Application Act 1969, s6, Schedule 2. Interpretation Act 1987, s30, s53. Supreme Court Act 1970, s75A.

Motion for leave to appeal out of time against the orders of Needham J dated 9 February 1988, dismissed with costs; and
Appeal from the orders of Needham J of 19 August 1988 dismissed with costs.

Kirby P The appellant appeals from orders made by Needham J on 19 August 1988 (the August orders). He seeks "leave to appeal", out of time, from declarations and orders which his Honour had earlier made on 9 February 1988 (the February orders). The Court refused to extend the time to file grounds of appeal in respect of the February orders. Accordingly, the hearing of the appeal proceeded, confined to the challenges to the August orders. So far as that challenge is concerned, I am of the opinion that the appeal must be dismissed with costs.

The reasons for refusing the appellant the extension of time within which to bring the appeal against the earlier orders, became clear in the course of argument. However, it is appropriate now to set down the reasons which led me to refuse the extension and thus to conine the appeal to those matters which were raised by the grounds of appeal which were within time.

The February orders arose out of a challenge by the appellant to the authority of the respondent, a corporation established at that time by s8(1) of the Egg Industry Act 1983. The appellant was one of a number of "rebel" poultry farmers who declined to apply for a licence under the Act. He was prosecuted on a number of occasions and convicted. Needham J found that he had "shown a determination to continue his illegal activity... attracted a large degree of publicity... [and] at all times... expressed defiance of the [Corporation], saying that whatever [it] might do, he was staying and would defend his flock to the death".

In the proceedings before Needham J which led to the February orders, the Corporation had sought a declaration that the appellant was keeping hens on the premises whilst they were unlicensed, contrary to s31(1) of the Act; an order restraining him from doing so; a declaration that he had sold eggs in contravention of s24(2) of the Act; an order restraining him from doing so; and a reference to the Master to assess the damages payable to the Corporation in the circumstances.

As disclosed in Needham J's reasons for judgment dated 3 February 1988, his Honour concluded that the appellant intended to continue his defiance of the law as established by the Act. He concluded that the case was one where injunctive relief was necessary "in order to uphold the law". He dismissed a defence based upon the alleged laches of the Corporation. He dismissed other defences based upon alleged differential treatment of the appellant and hardship to the appellant. He made the orders and declarations sought by the Corporation. Having regard to the decision of the High Court of Australia in Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185, and as requested by the Corporation, he referred to the Master the assessment of the damages to which the Corporation was, in law, entitled. He concluded his reasons for judgment with these words:

"T will publish these reasons and direct the plaintiff to bring in short minutes of orders reflecting them. If the defendant makes application for the injunctions to be suspended on the ground that he proposes to make applications to legalise his operation or to ensure in some other way that the breaches of the Act cease, I will certainly listen to such an application. If no such application is made, or if it is made but refused, the orders will date from the date on which the Short Minutes are approved."

URJ GALEA v NEW SOUTH WALES EGG CORPORATION (Kirby P) 3

The proceedings were then stood over until 9 February 1988. On that day they were relisted before Needham J. Unfortunately a transcript of what transpired on that day is not available. As the hearing apparently took place at 9.30 am, it is possible that no transcript was taken. However, in the absence of official transcript, the parties have placed before the Court evidence of what took place. This is the proper course. See Builders Licensing Board vy Mahoney (1986) 5 NSWLR 96, 98.

The solicitor for the Corporation has sworn an affidavit in which he described what took place as follows:

"On 9th February, 1988, I attended Court and instructed Mr Dennis Cowdroy and Mr David Davies of Counsel before Mr Justice Needham. rhe opponent was represented by Mr Maurice Neil, QC and Mr Lindsay Ellison of Counsel. Mr Cowdroy handed up Short Minutes of Order prepared on behalf of the Plaintiff. On behalf of the Opponent, Mr Neil made Application for a suspension of O.3 and O.4 in the Short Minutes of Order and made submissions in support of that Application. In the course of his submissions, Mr Neil said words to the following effect:

'As presently advised, my client does not intend to appeal against your Honour's decision... " Mr Justice Needham then made the... orders."

An affidavit by Mr Galea was read in connection with the application to this Court for an extension of time within which to appeal from the February orders. In this, Mr Galea admits to a conference with Mr Ellison of counsel and Mr Montgomery, his then solicitor. He says:

"Mr Ellison said to me words to the effect 'you will have either to buy quota and become a legal egg producer or get out of the business. If you like you can get rid of the chickens and start up with ducks. The Judge has indicated he will grant a stay of his orders if you want to buy quota or get out of business. In the meantime we will carry on with the damages case before the Master and when that is finished the case goes back to Judge Needham'."

Referring to the affidavit of the solicitor for the Corporation and specifically the reference to Mr Neil, Mr Galea says:

"As to paragraph 7... I do not know and cannot admit that Mr Neil said the words therein alleged. If he did so it was without discussion or instructions from

Also tendered on the application for extension of time was a letter from Mr Ellison to the then solicitors for the appellant. This was tendered on behalf of the appellant who expressly waived the privilege which would otherwise have attached to that communication. In the letter, the only relevant statement is a reference to a long conference with Mr Neil. It is true that the possibility of appeal is not specifically referred to in this letter. But, following the decision of Needham J, with its drastic consequences for the appellant, it defies credulity to suggest that some consideration (however passing) would not have been given by those then representing the appellant to the possibility of an appeal from his Honour's orders. It is inherently unbelievable that no such question would have been raised with Mr Galea by his then representatives. In this sense, the statement attributed to Mr Neil by the solicitor's recollection of what occurred on 9 February 1988 simply bears out the normal expectation of what would have occurred, the litigation being conducted by experienced counsel.

The appellant does not, in terms, deny that Mr Neil said what is attributed to him. No affidavit from Mr Neil, Mr Ellison or the then solicitors for the appellant is produced to depose, with the appellant's consent, to the instruction, or lack of it, concerning the possibility of appeal and the times that would then have had to be observed.

The inference which I would draw from the orders made, the affidavits of the appellant and the solicitor and the letter of Mr Ellison, is that a decision was affirmatively and consciously made by the appellant not to appeal from the orders of Needham J of 9 February 1988. It was this decision which was announced to the court by Mr Neil on 9 February 1988 at a time when such an announcement would have been appropriate and relevant.

This conclusion is further reinforced by what then happened. On 9 February 1988 Needham J granted a stay of the operation of O.3 and O.4 (by which the appellant was restrained) up to and including 26 February 1988. The principal purpose of such a stay was that disclosed by his Honour in his judgment, and apparently discussed with the appellant by his then legal representatives. However another purpose would have been to protect any appeal which the appellant wished to bring. As the practice of this Court demonstrates, virtually at every motion list, stays are commonly sought to prevent the execution of the orders under appeal, in order to protect the utility of the appeal. Far from seeking to take advantage of the stay for that or any other purpose, when the matter was relisted before Needham J on 26 February 1988, Mr Ellison on behalf of the appellant said to his Honour: "I wish to place it on record that the defendant makes no such application [for a stay]."

The appellant terminated the instructions of his then solicitors some time in March 1988, apparently at or about the time that the 28 days for the bringing of the appeal from Needham J's orders of 9 February 1988 expired. He was unrepresented thereafter until his present solicitors came onto the record soon after the August orders of Needham J were made. Six months passed without any challenge to the February orders of Needham J. In this time, the appellant, although unrepresented, continued his own defence of his interests in the Supreme Court. He appeared, unrepresented, before Bryson J and Cohen J in connection with contempt proceedings. He also appeared before Master Gressier, to whom Needham J had referred the assessment of the damages contemplated by the last of the February orders. It was said to the Court that the appellant was a man of little sophistication, education and understanding. There is no evidence of this. But even if it were so, an affidavit which he filed in the proceedings before Master Gressier is neatly typed and clearly expressed. It suggests, at least, that the appellant was receiving advice from a quarter not unfamiliar with legal forms and expression.

Also during the period of six months which elapsed, the respondent took steps to enforce the orders of Needham J. Sequestrators were appointed by the court. They were appointed solely on the basis of the orders now challenged. Other third party rights arose. These would be affected by any orders on appeal, setting aside the February orders made by Needham J which the Corporation by March 1988 was entitled to consider would not be challenged.

The importance of observing time limits in appeals.

In earlier times, courts enforced most stringently the time limits established by law for the bringing of appeals. An appeal, even one day out of time, would be dismissed on that ground. This approach was adopted out of deference to the principle of finality of litigation and the entitlement of parties, after the time for

URJ GALEA v NEW SOUTH WALES EGG CORPORATION (Kirby P) 5

appeal had expired, to order their affairs on the basis of the final judgment of a court. More recently, a somewhat more relaxed view has been taken, sanctioned by the Rules of Court and the determination, which those Rules promote, to secure substantial justice where this would be defeated by an overly rigid adherence to provisions as to time. See eg Mount v Williams, Court of Appeal, unreported, 27 June 1988; (1988) NSWJB 112. Nevertheless, the rules requiring appeals to be brought within time are still important. They must ordinarily be complied with strictly. If they are not, it is for the defaulting party to show why the Court should grant it an indulgence. Normally, this will require both an explanation for the delay and a demonstration that there is a substantial point to be argued in the appeal which it would be unjust to prevent the applicant from arguing.

Although, initially, there was the faintest suggestion that the February orders of Needham J merged in some way in the orders later made in August 1988, this suggestion cannot be sustained. Reference was made to the decision of the Court in Smith v Tabain (1987) 10 NSWLR 562. That decision dealt with the quite different circumstances of a case arising under s103 of the Supreme Court Act 1970 where it is ordered that a separate question be tried. See also now National Employers' Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd and Ors, Court of Appeal, unreported, 21 June 1989; (1989) NSWJB 128. There was no such order in the present case. Needham J simply proceeded to deal with the matters which were before him. The February orders, certainly numbers | to 4, were final orders. No leave was required to appeal from them. They were not rendered interlocutory by the reference to the Master of the severable issue of damages. The appellant had 28 days to appeal from the February orders. That interval expired on 9 March 1988. Mr Galea's affidavit discloses that his new solicitor gave him that advice when, eventually, he was retained after the August orders. The advice he gave was correct. The case must be approached upon the basis that when, at last, the notice of appeal was filed on 15 September 1988, although within time to challenge the August orders, it was out of time to challenge the orders which had been made in February 1988. Eventually, so much was acknowledged before this Court by counsel for the appellant.

When, therefore, I turn to ask whether an explanation has been given for the delay of six months, I say at once that I see none. It is true that, by his own actions, the appellant became unrepresented in March 1988. But for the whole, or most, of the 28 days during which the time to appeal was running after the February orders, the appellant was represented. Indeed he was represented by senior counsel with whom (as I have inferred) the prospect of appeal was discussed. In the circumstances of the deliberate decision not to appeal and the intervening rights of third parties which followed, no adequate explanation was given which would warrant the extension of time to appeal against the February orders.

In considering applications for extension of time, it is appropriate to take into account the issue which the claimant wishes to argue and to make some preliminary estimate of the claimant's prospects of success in the argument. If a great injustice would be visited upon a party who has an otherwise strong case for appeal, a court may be more inclined than in a weak or unmeritorious case to consider favourably an application for extension of time. It is therefore appropriate to notice the nature of the grounds which, although out of time, the

appellant wishes to bring in challenge to the February orders. A generalised description of them can be found in the statement filed by the appellant in a document offered by him in support of what was presented as an application for "leave to appeal". This reads:

"The defendant/appellant argues that the Egg Industry Act, 1983 is not a law for the peace, welfare and good government of New South Wales in that the said Act is ultra vires the Constitutional Enactments of New South Wales as indicated in the Imperial Laws Application Act (sic) 1969 No 30 2nd Schedule, Pt! (Application Act). Specifically, that the Egg Industry Act is ultra vires the Magna Carta (1297), Statute of Monopolies (1623-24), Petition of Right (1627) and Bill of Rights (1688), in that the Eggs Industry Act 1983 is an undue infringement on Mr Galea's fundamental rights to liberty and property. Further, that the New South Wales Egg Corporation cannot support any compelling reasons for this undue infringement upon Mr Galea's fundamental rights, nor can it show a benefit or consideration flowing to the public. As such, the Act is against common right and reason, an undue infringement of Constitutional rights and is void ab initio."

The parties filed detailed written submissions in support of, and opposition to, the substantive argument concerned with these issues.

Without purporting to deal at any length with the issues raised, (which were not fully argued) it is sufficient for me to say that I do not believe that the appellant would succeed in any them. The alleged inconsistency with Magna Carta, even if proved as seems most unlikely, would not appear to invalidate a valid law of the Parliament of New South Wales. Cf Chia Gee, Ah Kow, Chow Chee and Ong Seet v Martin (1905) 3 CLR 649, 653; Re Cusack (1986) 66 ALR 93, 95 (HC). The reliance upon certain Imperial Acts requires consideration of s6 of the Imperial Acts Application Act 1969. This section preserves the imperial enactments enumerated in the Second Schedule, Pt! of the Act, "except so far as affected by any Imperial enactments or state Acts from time to time in force in New South Wales" (emphasis added). This would therefore appear to envisage affectation and modification of the continuing application of the enumerated Imperial Acts by ordinary legislation enacted by the State Parliament. The Egg Industry Act is one such Act. See Jago v The District Court of New South Wales, unreported, High Court, 12 October 1989 per Toohey J p 52 and Gaudron J pp 65-66.

The appeal to the constitutional provision enabling Parliament to make laws for "the peace, welfare and good government" of New South Wales would not appear upon current authority binding upon this Court, to provide a fruitful source of challenge to the validity of the Egg Industry Act. See Constitution Act 1902, s5. These words have been held to be not words of limitation but words conferring legislative power in plenary terms. Union Steamship Co of Australia Ltd v King (1988) 62 ALJR 645, 648 (HC); Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations and Anor (1986) 7 NSWLR 372, 378 (CA). The contrary notion has attracted some judicial and academic favour. See eg Dixon J in Broken Hill South Limited (Public Officer) v The Commissioner of Taxation (NSW) (1937) 56 CLR 337, 371; ID Killey, "Peace, Order and Good Government: A Limitation on Legislative Competence" (1989) 17 Melb Uni L Rev 24. Cf P A Joseph and GR Walker "A Theory of Constitutional Change" (1987) 7 Oxford Jnl of L Studies 155 and editorial note (1987) 61 ALJ 53. However, any application to reconsider the decision in BLF would now run into the more recent additional authority of

URJ GALEA v NEW SOUTH WALES EGG CORPORATION (Kirby P) 7

the High Court of Australia in King. It also confronts more than a century of decisions in the Privy Council and in other courts of high authority. See eg Attorney General for Saskatchewan v Canadian Pacific Railway Company and Others [1953] AC 594. It is therefore not appropriate, where the appellant already has the time difficulties to which I have referred, to permit him to argue this point in this case.

Finally, although it is true that, in New Zealand, it has been suggested that there may be some common law rights which go "so deep that even Parliament cannot be accepted by the courts to have destroyed them', this doctrine has not yet found favour in Australia. Cf L v M [1979] 2 NZLR 519; Brader v Ministry of Transport [1981] 1 NZLR 73; New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390; Fraser v State Services Commission [1984] 1 NZLR 116. Cf Joseph and Walker (above), 167f. In this State, the suggestion was rejected in the BLF case. Although the issue is an important one and may one day come up for reconsideration, the procedural difficulties in which the appellant now finds himself make it inappropriate to offer such reconsideration in this appeal.

No adequate explanation having been given for the failure to appeal within time following the February orders and for the delay of six months which then followed, the appellant should be refused leave to add to his notice of appeal, although out of time, the grounds of appeal relating to the February orders. This decision can be made more comfortably because, in the present state of authority, it would appear that to exclude the appellant from arguing these additional grounds causes no substantial injustice to him in the circumstances.

As T have earlier said, the appellant appealed within time against the August orders of Needham J. These ordered that. the amount of damages sustained by the Corporation arising from the conversion of eggs by the appellant up to and including 24 March 1988 be assessed at $1,064,982. Interest accrued thereon up to an including 19 August 1988 was $64,774.20. Accordingly, judgment was ordered to be entered in favour of the Corporation in the sum of $1,129,756.20. These orders followed the report to his Honour of Master Gressier. This in turn followed the order of reference made in the February orders.

The appellant's challenge to the orders of Needham J in respect of damages was mounted as a challenge to the determination of that issue by Master Gressier. It should perhaps be said that, when Needham J referred the assessment of the damage which the Corporation had suffered to the Master, his Honour remarked: "As the plaintiff is a non-profit organization and pays to the producers the difference between its income from sales and its expenses, it might be thought that it suffered no pecuniary damage from the failure of the defendant to deliver eggs to it. However, this simple view is inconsistent with the decision of the High Court in Butler v The Egg and Egg Pulp Marketing Board 114 CLR 185, where it was held that the Board, operating under an Act similar in principle to the present, was entitled to damages for the failure of a producer to deliver eggs to it. The measure of damages was the difference between the price at which the Board sold eggs and the sum paid to the producer. As requested, therefore, I will refer the matter to the Master to assess damages."

Butler is a decision binding on this Court. It has been referred to, in this Court, without any relevant criticism, in Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1968) 69 SR (NSW) 311. That decision was affirmed by the High Court (see (1968) 121 CLR 584) without any suggestion of criticism or need for reconsideration. See eg ibid at 602.

No attempt was made by the appellant to distinguish Butler or to suggest that, for any reason of principle or difference in the legislation, the decision did not lay down the rule to be adopted by the Master and the Court in ascertaining the Corporation's entitlement to the damages which flowed from the February orders.

Instead, the appellant mounted his attack on the August orders by reference to the way in which the Master had received evidence and the way in which he had applied the holding in Butler.

So far as the evidence is concerned, the complaint was that the Master had admitted into evidence hearsay evidence as to the number of hens counted on various occasions by inspectors other than Mr W B Shepherd, an officer of the Corporation. The Master had also admitted into evidence hearsay evidence of "inspectors" estimates of daily production" of eggs. It was urged that, because the appellant was unrepresented before the Master and had no knowledge of the rules of evidence, the Master ought to have refused to allow such hearsay evidence to be admitted. He ought himself to have excluded it, as hearsay, out of the duty traditionally accepted by courts to protect unrepresented litigants against evidence which is unfair to them.

There are a number of answers to this and the like complaints made by the appellant. First, although the appellant was unrepresented, the documentation filed before the Master bears, as I have said, all of the hallmarks of informed advice. Although it was said that the appellant was unsophisticated and uneducated, the affidavit which he swore in those proceedings follows the normal legal form. It purports to answer, paragraph by paragraph, the contentions of the Corporation.

Secondly, the proceedings before the Master appear to have been conducted, as might be anticipated, without undue formality. Necessarily the appellant was, by the time the proceedings came to the Master, not unfamiliar with court process. As noted in a number of the judgments concerning him, including that of Needham J extracted above, he had engaged in vigorous public controversy about the Corporation, its statute and his defiance of the Corporation. In these circumstances I would not be inclined to infer that he was intimidated into silence before Master Gressier so that he failed to bring to the Master's attention a real matter of controversy concerning the estimates of the number of hens on his premises. On the contrary, there was no questioning of Mr Shepherd nor any attempt to contradict him on this score. Nor did the appellant seek to place evidence which cast doubt upon his estimate and which was in admissible form, before the Master.

Thirdly, whilst it is true that the evidence upon which Mr Shepherd based his estimates was, in turn, drawn from hen counts conducted by inspectors other than himself over a period of four years and whilst this evidence was hearsay, it was admissible under the Evidence Act 1989 s14CE. The statement was made by a qualified person derived from information made by other qualified persons in the course of, and for the purposes of, the business of the Corporation. The evidence was therefore admissible by law. The Corporation was entitled to have the evidence received. Provision is made by sl4CI for the court to consider the weight of evidence admitted under s14CE. But in the absence of any positive evidence from the appellant to cast real doubt on the hen counts offered by Mr Shepherd, I have no doubt that the Master was entitled to accept Mr Shepherd's evidence because it was virtually unchallenged. No error is shown, in the circumstances, in his having done so.

URJ GALEA v NEW SOUTH WALES EGG CORPORATION (Kirby P) 9

The appellant suggested that tax returns, tendered by him, should have alerted the Master to enquire into the ownership of the hens counted by the Corporation's inspectors, on the basis of which Mr Shepherd offered his aggregate estimate. However, this argument is likewise without substance. The returns are scarcely from an objective source, being produced by the appellant himself. In any case, they do not disclose the number of hens he allegedly had. The modest income revealed in them might be explained on several bases having nothing whatever to do with a suggested lower hen tally.

To mount his challenge to the application of Butler, an attempt was made for the appellant to place before this Court two documents which he had not tendered before the Master. These were the Gilchrist Report on the Egg Marketing Industry and a Review of the System of Egg Marketing in the State by a firm of consultants, Acil Pty Limited. These documents were marked for identification. However, their tender was rejected by the Court.

In the case of the Gilchrist Report, it antedated the hearing before the Master. It could therefore, if relevant, have been tendered by the appellant in the proceedings before the Master. Had the report been tendered, the Corporation might have sought to meet it by evidence the issues of fact (if any) proved by it. The attempted late tender in the appeal effectively denied them that opportunity. Its admission would, therefore, involve a procedural unfairness to the Corporation which it is the duty of this Court to prevent on appeal. Coulton v Holcombe (1986) 162 CLR 1, 7-8. See also Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1988) 12 NSWLR 730, 745 (CA). The rejection of the document could be made more comfortably because, in addition to the procedural unfairness asserted by the Corporation, it would appear doubtful that the report was admissible in any event. Although certain factual material was contained in it, that material was hearsay. It would not be proved by the tender of the report. Facts were set out in the report only as a basis of the expression of the author's opinions and the recommendations contained in the report concerning the operations of the Corporation and the then organisation of the egg marketing industry.

The report on the review of the system of egg marketing by Acil was likewise rejected. That report came into existence in November 1988, ie after the proceedings before the Master and the August orders made by Needham J. The report was therefore not available to be tendered in the proceedings before Master Gressier. Its admission into evidence in the appeal depends, accordingly, on s75A(7) and s75A(9) of the Supreme Court Act 1970. In Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235, the Court made it plain that the admission of new facts on appeal would only be allowed on very special grounds. See also Binge v Bennett (1988) 13 NSWLR 578, 589. I do not consider that those very special grounds are established here. The facts contained in the Acil report, as described, are not proved by that report. Similarly, the opinions expressed could not touch the entitlement of the Corporation to have its damages assessed in accordance with Butler. The tender of the Acil report was therefore similarly rejected.

At the heart of the appellant's objections to the application of Butler was the contention that the Corporation was limited to the recovery of the "real damage" which it had sustained. Because the Corporation was losing money (as it was claimed the Gilchrist and Acil reports would demonstrate) the suggestion was made that the appellant actually did the Corporation a favour by not providing his

eggs to it as the law required. This was because, so it was claimed, the Gilchrist and Acil reports would show the Corporation was obliged to sell eggs supplied by producers at a loss. Therefore, no real "damage" was done to it by the actions of the appellant and the other "rebel" egg producers. Upon the "retirement" of the appellant as an egg producer, so the argument ran, the persons to benefit from taking over the appellant's market outlets would have been other "rebels" or interstate interests and not the Corporation. Therefore, without an increased market share, the Corporation's egg surplus would have increased. Returns to all producers would have fallen. There would therefore be a resultant loss to the Corporation occasioned by the additional surplus.

These arguments are neither sustained by the evidence tendered before the Master and properly before this Court nor admissible upon the assumptions on which damage to the Corporation must by law be assessed. Those assumptions include that the appellant did, as he was required, provide his eggs, and all of them, to the Corporation. What the Corporation then did with the eggs was, by law, entirely a matter for it. Assumptions about what other "rebel" egg producers might have done are irrelevant. I see no error in the way in which the Master approached the computation of the damage suffered by the Corporation in accordance with Butler. Accordingly, the orders made by Needham J, as based upon that assessment, must stand.

The Egg Marketing Act 1983 was repealed by the Egg Industry (Repeal and Deregulation) Act 1989. The latter Act commenced on 12 August 1989. The Corporation, established by the 1983 Act, was dissolved upon the repeal of that Act. A new Corporation of the same name is created by the 1989 Act. No express provision was made in the 1989 Act for the survival of pending litigation brought on behalf of the former Corporation. However, two provisions of the Interpretation Act 1987 are relevant. By s53(2)(c) of that Act, if an Act alters the constitution of a statutory body, the alteration does not affect any legal cr other proceedings instituted by or against the body. Any legal proceedings that have been commenced by that body as previously constituted may be continued by that body, as newly constituted, (s53(2)(c)). It may be inferred that the Corporation, newly created by the 1989 Act, has decided to continue the present proceedings in which it appears as respondent to the appellant's appeal.

By s30 of the Interpretation Act, the repeal of an Act does not affect any "right... obligation or liability acquired, accrued or incurred" under the [repealed] Act or any legal proceeding or remedy in respect of any such "right, obligation, liability or penalty" (30(1)(b) and s30(1)(d). Any such legal proceeding may be continued, as if the Act had not been repealed. There is nothing in the 1989 Act to exclude the operation of these provisions.

By virtue of such provisions, the orders made by Needham J are unaffected by the repeal of the 1983 Act by the 1989 Act, which took effect on 12 August 1989. No contrary submission was received from the appellant, when this issue was raised by the Court.

Whether, in the events which have occurred, and the deregulation and reorganization of the egg industry effected by the 1989 Act, it is still appropriate for the Corporation to enforce the whole of the judgment entered against the appellant is doubtless a matter for political and not legal decision. The appellant disobeyed the law as it then stood. He did so publicly and defiantly. It was the duty of the courts to uphold and enforce that law. Behind the appellant's objection to the system of egg marketing then in force may have been some of

URJ GALEA v NEW SOUTH WALES EGG CORPORATION (Meagher JA) 11

the considerations which led to the Gilchrist and Acil inquiries, to the repeal of the 1983 Act and the reorganisation of the industry as the 1989 Act now provides. In these circumstances, it will be for the Corporation and, possibly, the Executive Government to decide whether, and if so to what extent, the orders made in pursuance of the former law should be enforced against the appellant. Apart from calling to notice the entitlement of the Corporation to consider these matters, the way it resolves them is not a matter upon which this Court should express an opinion.

Motion for leave to appeal out of time against the orders of Needham J dated 9 February 1988, dismissed with costs; and

Appeal from the orders of Needham J of 19 August 1988 dismissed with costs.

Meagher JA I have had the opportunity of reading in draft the judgment of Kirby P and agree with it. I should wish to add that I subscribe to the (perhaps surprisingly conventional) views expressed by Kirby P in Building Construction EmPloyees and Builders' Labourers Federation of New South Wales V Minister of Industrial Relations (1986) 7 NSWLR 372, and repeated in his judgment in the present case, in preference to those expressed by Street CJ in the same case.

Motion for leave to appeal out of time against the orders of Needham J dated 9 February 1988, dismissed with costs; and

Appeal from the orders of Needham J of 19 August 1988 dismissed with costs.

Counsel for Appellant: T Shulze Solicitors for Appellant: Garry N Penhall Counsel for Respondent: DA Cowdroy, DL Davies and MR Gracie

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Parties

Cases Cited (15)

Cited By (2)