Clemett v New South Wales Lotteries Corporation [2013] NSWSC 506

Supreme Court New South Wales

Medium Neutral Citation: Clemett v New South Wales Lotteries Corporation [2013] NSWSC 506 Hearing dates: 08/04/2013 Decision date: 08 April 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005, I order that the whole of the report of Mr Bret Walker dated 14 March 2013 be and hereby is adopted. (2) I order that the Notice of Motion of the defendant of 25 March 2013, be otherwise dismissed. (3) I order that the Notice of Motion of the plaintiff of 2 April 2013, be dismissed. (4) I order that on or before 4pm 6 May 2013, the plaintiff is to file and serve all affidavits of all witnesses upon whom he relies to prove his case with respect to his claim for the proceeds of Oz Lotto 188 which are presently unclaimed. Catchwords: PROCEDURE - admissibility of a referee's report - whether a referee's report should be, in whole or in part, adopted or rejected - notice of motion sought orders that are not appropriate for a court to make Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Robert Clemett (P) New South Wales Lotteries Corporation (D) Representation: Counsel: In person (P) J Hogan-Doran (D) File Number(s): 2010/138776, 2012/228369

EX TEMPORE Judgment 1Before the Court today are two Notices of Motion; the first is a Notice of Motion brought by the plaintiff, Mr Robert Clemett, in which he seeks fourteen different orders, to which it will shortly be necessary to refer. The second is a Motion filed 25 March 2013 by the defendant, the New South Wales Lotteries Corporation, which sought to have the report of Mr Bret Walker SC as Referee, dated 14 March 2013, adopted in whole by the Court, and on the basis that the proceeding should be summarily dismissed. 2I proceeded to first hear the question of whether or not the Court ought adopt the report of Mr Walker. The defendant, NSW Lotteries, submitted that the Court ought adopt the report in whole. The plaintiff, Mr Clemett, opposed the adoption of the report. In the plaintiff's Notice of Motion, the plaintiff sought an order that the Court "... not adopt the report furnished by Bret Walker on 15 March 2013 as this report is able to be proven as faulty". 3Some history of the Referee's report is necessary. On 1 March 2013, I ordered that there be referred to Mr Walker, as Referee, a series of questions, seven in all, the answers to which depended upon a comparison of two documents. The first of those documents was a copy of a document which has become known during the various interlocutory proceedings as MFI 1. That document, which contains upon it a series of numbers, is said by the plaintiff to accurately replicate the six numbers which he inserted on each panel of a twelve panel entry form which he submitted to the Greenfield Park Newsagency on 19 September 1997 as his entry for Oz Lotto 188. 4The other document upon which the Referee was asked to base his exercise of comparison, was a document provided confidentially to the Referee by NSW Lotteries containing the details held by NSW Lotteries with respect to a winning entry in Oz Lotto 188, the winning entry Mr Clemett claims to be the entry he submitted. 5In short, what the Referee was called upon to do was to undertake an exercise of comparison between the two documents. The reason why the Court referred the question to an independent Referee was because NSW Lotteries, for reasons which were regarded as sufficient, wished to maintain complete confidentiality about all of the details of the declared winning entry. NSW Lotteries submitted at the time, and I accepted, that if confidential information about the winning entry was made public or allowed to be revealed, then there was a real risk that other claimants may use that material to lodge a claim and, accordingly, there would be no way that NSW Lotteries could determine whether any further claimant was the correct winner. 6At the time that the Court made the orders for referral of the question to the Referee, Mr Clemett was being assisted by Mr Villa of counsel. Mr Villa indicated that, in broad terms, he accepted that the appointment of a Referee to undertake this task of comparison was an appropriate course to follow. On 14 March 2013, Mr Bret Walker SC reported to the Court and provided answers to the various questions. It is unnecessary in this judgment to quote in full the answers to the questions. However, it is clear, reading those answers, that in many respects the winning entry did not reflect, and was quite different from, the twelve panel entry which Mr Clemett claims in these proceedings he submitted to the newsagent on 19 September 1997. NSW Lotteries submit that the report should be adopted in whole and, as I have said, Mr Clemett submits that it ought not be. 7So far as I can understand the submissions for Mr Clemett, he seems to submit that the Court ought not adopt the report of Mr Walker, not because he suggests that Mr Walker may have made an error in undertaking the exercise of comparison, which he was asked to do, nor for any other reason directed to the content of the report of the Referee but, rather, because he wished to challenge the legitimacy and accuracy of the details with respect to the winning entry provided by NSW Lotteries to Mr Walker. 8Whether the report is adopted or not, it will be open to Mr Clemett, should he wish, to lead evidence which may tend to, or at least which he submits to the Court will tend to, cast light upon the accuracy or legitimacy of the winning entry or else to prove that that which Mr Walker was given by NSW Lotteries is not, in truth, the winning entry for this lottery. However, that does not mean that the report of Mr Walker, who has undertaken a specific identified task, should not be adopted. It simply means that in, and of itself, the report may not completely finalise, further evidence and submissions on all of the issues which Mr Clemett raises in these proceedings. 9There is no suggestion that Mr Walker has misconducted himself in any way. There is no suggestion that there is any obvious error in the content of the report which would lead the Court to refer the matter back to Mr Walker for further report or, alternatively, to question the accuracy of it. On the contrary, my reading of the report can, by reference to all of the possibilities which existed in 1997 for an entry into Oz Lotto 188, be read as a consistent and compelling report. 10On its face, it does not raise any question as to its accuracy nor does it, on its face, provide any reason to consider that there has been any specific error of principle or any significant error of fact. There is no suggestion that the report is unreasonable with any answer to the specific questions for Mr Walker or that he has acted outside the scope of the matters referred to him or that he has, in making his findings, misapprehended the evidence. On the contrary, as I have said his report appears, on its face, to accurately respond to the task which he was asked to do. Of course, Mr Walker was not asked nor could he have expressed any view, on the legitimacy or otherwise of the document given to him by NSW Lotteries so that an adoption of his report will not close out that question for argument by the plaintiff. 11In all of the circumstances, I have formed the view that the Court should adopt, in whole, the report of the Referee, Mr Walker, dated 14 March 2013. 12It will be necessary, in due course, to consider what order ought be made in light of the further evidence which was adduced on the balance of the issues in the proceedings. The parties are agreed that I should make further directions for the further conduct of the proceedings, which I will do. However before moving to that, I need to consider the Notice of Motion filed by Mr Clemett with respect to orders other than the order he seeks about Mr Walker's report. Some preliminary remarks are necessary. 13These proceedings were commenced by Mr Clemett in this Court in 2012. They were brought by the filing of a summons accompanied by an affidavit and other material. They were brought after proceedings for preliminary discovery were commenced and concluded in 2011. So far as can be gleaned from the terms of the summons, the affidavit and the other material lodged in support of Mr Clemett's claim, Mr Clemett claims that on 19 September 1997, he submitted a 12 panel multi-week entry ticket for Oz Lotto 188 at the Greenfield Park Newsagency. He further claims that panel number 4 on that entry form contained the winning numbers for a Division 1 Oz Lotto prize. The evidence filed in support of his claim is that he has made a claim for the prize money from NSW Lotteries, but they have refused to pay him the winning prize. Accordingly he seeks either damages for breach of a contract which he entered into with NSW Lotteries by the submission of his ticket, the breach being NSW Lotteries' failure to pay him the winning prize, or alternatively, he claims that NSW Lotteries is indebted to him in the sum equivalent to the prize money. 14Although the transaction occurred between Mr Clemett and the staff of the Greenfield Park Newsagency, it seems to be accepted that the newsagent was acting as an agent of NSW Lotteries and accordingly, NSW Lotteries is the appropriate party to be joined with respect to any claim in debt or for breach of contract. 15Given the nature of the claim, Mr Clemett carries the onus of proving, at least, the following. First, that there was a contract between himself and NSW Lotteries, which was created by his purchase of an identified lottery ticket. Secondly, what the terms of that contract were, that is to say, what the numbers on his alleged winning lottery ticket was or were; the serial number of the winning lottery ticket; the features of the winning lottery ticket; and ultimately that on his entry forms the ticket which was issued, he proves the existence of the contract. Thirdly, of course, that NSW Lotteries has not paid him the money, this final element is not in dispute. 16In support of that claim, Mr Clemett will need to adduce such evidence as he wishes to satisfy the Court of those features and any other features which may be relevant, and that NSW Lotteries is indebted to him. 17Against that background, it is necessary to consider the orders which he seeks in his Notice of Motion, but before doing so individually, it is sufficient if I say that having carefully read the terms of the orders sought and listened carefully to Mr Clemett's submissions, I am not persuaded, for various reasons, that the orders should be made. 18In general, the effect of the orders is to seek documents which I am not persuaded are relevant to a fact in issue. As well, the Motion seeks orders requiring NSW Lotteries to undertake identified action or undertake proof of one or another matter. These are not appropriate orders to be made. 19It is necessary, then, with these general remarks in mind to consider, the specific orders sought. The first order addressed by Mr Clemett was Order 12. Order 12 is in the following form: "An order that New South Wales Lotteries provide the plaintiff with the 'result' of a $61.75 Oz Lotto 188 ticket that Messrs Clemett and Shelley purchased at the Greenfield Park Newsagency in September 1997". 20It is not precisely clear to me what is encompassed by the word "result" which appears in that order. However, the difficulty with that order is that it assumes the correctness of Mr Clemett's allegation, which is the subject matter to be tested at any final hearing, namely, did Mr Clemett purchase a ticket to the value of $61.75 in September 1997 at the nominated newsagency in Oz Lotto game 188? It seems to me that the order seeks to impose an onus of proof on NSW Lotteries to require them to undertake an examination and establish to Mr Clemett's satisfaction whether there was such a ticket as he contends, or else it had a result for which he contends. The order is not one which can be made by the Court at this stage of the proceedings. It is not an appropriate form of relief. 21The next order which Mr Clemett seeks is Order 14. It is in the following form: "An order for all tickets sold out of the Greenfield Park Newsagency in conjunction with Oz Lotto 188 to be examined by the Court". 22The Court will, in due course, examine such evidence as is tendered before it, by either party in support of, or else contrary to, the claim which Mr Clemett makes. Order 14 does not contemplate a procedure which would be permissible. Even if it was strictly permissible, in light of the nature of the cause of action, it would not be entirely appropriate. 23I should say also that in the judgment given by the Court with respect to preliminary discovery in 2011, an order was made which enabled Mr Clemett's then counsel, Mr Villa, to examine the records of NSW Lotteries of all OZ Lotto tickets entered and cancelled at the Greenfield Park Newsagency for the time period between 1.00 pm and 3.00 pm on each of 17, 18 and 19 September 1997. In light of the fact that this discovery has already taken place, albeit as part of an order for preliminary discovery, there is no legitimate forensic basis for any further order of the kind that Order 14 seeks. I refuse to make it. 24The next order is Order 10. That is in the following terms: "As advised to the NSWSC the declared winning entry is an alleged forgery. An order that New South Wales Lotteries provide the Court with the basis upon which the forged entry was declared to be a winning entry when the declared winning entry was not legally validated". 25This order again assumes the correctness of an assertion by Mr Clemett that the declared winning entry is a forgery and seeks to require NSW Lotteries to explain to the Court how it is that a forged entry has been declared to be a legitimate winning entry. An order of this kind seeks to reverse the onus of proof and seeks, based upon an assertion rather than a proved fact, that an order which would otherwise be inappropriate, be made. There is no basis for the Court to make that order. 26The next order which Mr Clemett seeks is Order 2 which is in the following terms: "An order that a current justice of the NSW Civil Claims Court conduct a further examination of the declared winning entry". 27This order was aligned with Mr Clemett's argument that the Court would not adopt the report of the Referee, Mr Walker. However, for reasons which I have given, there is no reason for the Court not to adopt Mr Walker's report and as I have indicated, the Court will adopt the report in whole. 28The basis upon which Mr Clemett seeks Order 2, is that he was concerned to ensure that Mr Walker's report accurately recorded the results of the exercise which he had undertaken. Mr Clemett pointed to the answers to Question 6 in the report and submitted that they demonstrated that Mr Walker did not accurately report the results of the comparison. However, I am not satisfied that, in and of itself, the answers to either Question 6 or any other question referred to Mr Walker, demonstrated that he has not undertaken his job correctly or accurately, nor am I satisfied that it would be appropriate to require a further examination of the winning entry by a current judge of this Court. 29It seems to me that Mr Clemett's real question is: whether the document that NSW Lotteries contend is the declared winning entry, is in fact the winning entry. That proposition has nothing whatsoever to do with Mr Walker's report, nor would it be elucidated by an examination of the kind that Order 2 refers. It is possible that an exercise of the kind that Order 2 describes may be undertaken at a final hearing if Mr Clemett seeks to tender the winning entry and asks the judge to examine it, however, that is a matter for the final hearing. I will not make Order 2. 30Order 3 seeks an order that: "NSW Lotteries to provide archival records to the Court produced upon both the central processing system and the NSW Lotteries' terminal of the Greenfield Park Newsagency in conjunction with Oz Lotto 188 on 19/9/1997 for forensic examination if necessary". 31What I think Mr Clemett is seeking - although I have to confess some difficulty in understanding what he wishes to achieve by this order - is to have records produced to the Court in electronic form which could be examined by an independent forensic computer expert and which may be able to show that, at the time he purchased his ticket in Oz Lotto 188 on 19 September 1997, the terminal of the NSW Lotteries located at the Greenfield Park Newsagency was configured so that it was not processing entry tickets online in conjunction with the NSW Lotteries central computer system. And further that an examination of the central processing system, at the same time, would demonstrate that NSW Lotteries may have received a non-matching entry to that which Mr Clemett argues he submitted to the Greenfield Park Newsagency. He also submits that such records may show that the remote machine, that is, the machine in the newsagency, was either online or offline during the relevant period. It may show that the configuration of the ticket has been electronically or manually altered and it may provide some explanation as to why the declared winning entry does not match in its entirety the entry submitted by Mr Clemett to the newsagent. 32There are two principal reasons why I will not make the order. 33First, there is no evidence before me that the records referred to in the order presently exist. Having regard to the fact that one is dealing with events of 16 years ago, I would not be prepared to infer, without evidence, that the records of the kind sought by Mr Clemett, continue to exist. 34Secondly, there is no evidence before me, or even evidence from which it can be reasonably inferred, that the possibilities raised by Mr Clemett were likely to have occurred or were even possible to have occurred. For example, Mr Clemett suggested that it may have been possible that either electronically or manually, the newsagent or a member of the newsagent's staff has converted his 12 panel five-week entry form into a systems entry with fewer panels upon it but which adequately reflected the numbers he had chosen, and that thereby the agent has retained funds for himself. Frankly, this is mere speculation. There is just no material upon which I could act to make an order in terms of Order 3. 35Order 4 sought by Mr Clemett is in the following terms: "An order for a senior officer of NSW Housing and the plaintiff to conduct a search of the ceiling cavity at the Bonnyrigg unit occupied by the plaintiff in 2001". 36Mr Clemett agrees that he has been unable to produce to NSW Lotteries or to the Court either the actual entry form, which was submitted and then returned to him on 19 September 1997, or the printed ticket issued to him by the newsagent on that day. He says that although he has a recollection of it being located in specific places in his home and that he has diligently searched for the original documents, he has not yet been able to locate them. He says that it is entirely possible that the document has been placed, in effect, into storage, in the ceiling cavity of a Housing Department unit which he occupied at Bonnyrigg up until around 2001, or else early in 2002. Accordingly, he wants an order of the Court that he be permitted, in the company of an officer of NSW Housing, to return to that unit, and either examine the ceiling cavity himself or by having someone on his behalf do so. 37Mr Clemett accepts that NSW Housing and the current tenant, if any, of the housing unit are not parties to the proceedings and have no notice of this application. He also says that for reasons which he regards as entirely reasonable, there is no purpose to be served by making a request of NSW Housing or the tenant himself to undertake, with their cooperation, that search. 38I am not satisfied that the Court has the power to make the order which Mr Clemett seeks. First, the subject of the order would be people who are not parties and who have not been heard. Secondly, the order would not be caught by the ordinary Court's processes for a view of a scene, or else an examination or re-enactment of any kind. A Court, without a proper statutory basis, does not have the right to order searches of private property. It is only when the Court is given that power by statute that it can do so, and I have found no statutory basis for the order which Mr Clemett seeks. 39Thirdly, even if there was a statutory basis, I would not, as a matter of discretion, make the order in the absence of Mr Clemett himself first having attempted to access the ceiling cavity by requesting the assistance of the occupant of the unit or NSW Housing, and then having that request refused. So on these bases I reject Order 4. 40The next order that Mr Clemett seeks is Order 9 which is in the following form: "NSW Ministry of Gaming to provide a complete report of the audit that was conducted at the Kingswood Records Depository by Michael Gordan in September 2008 upon the personal request of the plaintiff". 41I accept from Mr Clemett that such a report exists, however I am not satisfied that the content of a report of an audit conducted at the NSW Government Kingswood Records Depositary is relevant to any issue in the proceedings or any in fact issue. There is no basis for the Court to make such an order. I decline to make it. 42The remaining order which is specifically sought is Order No 8 which is in the following form: "New South Wales Lotteries to furnish copies of all memorandums, executive minutes and all incident and other reports generated in conjunction with the replacement of all terminals en masse from newsagencies in July 2000". 43It appears to be Mr Clemett's contention based upon something he has been told, that in 2000 all terminals owned by NSW Lotteries were replaced because they were inaccurate and insecure, and accordingly no longer capable of performing their task. I cannot see that, if everything Mr Clemett contends is correct, these documents would contain any material identifying a fact in issue in the present proceedings or a fact relevant to a fact in issue in the present proceedings. It seems to me that this order would, if those documents were subpoenaed by a party to the proceedings, be set aside as a fishing expedition and one which is clearly far too broad. 44There is simply nothing about the category of documents sought in Order 8 that would suggest anything about the entries in Oz Lotto 188 are contained within them. 45Mr Clemett did not press the balance of the orders sought in the Notice of Motion and did not make any submissions that the orders there sought, ought be made today. 46In all of the circumstances, I am not persuaded that any of the orders sought by Mr Clemett in his Notice of Motion ought be made and accordingly the appropriate relief with respect to Mr Clemett's Motion, dated 2 April 2013, is to dismiss it. 47However, I will, in light of all that I have said, make the following formal orders: (1)Pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005, I order that the whole of the report of Mr Bret Walker dated 14 March 2013 be, and hereby is, adopted. (2)I order that the Notice of Motion of the defendant of 25 March 2013 be otherwise dismissed. (3)I order that the Notice of Motion of the plaintiff of 2 April 2013, be dismissed. (4)I order that on or before 4pm, 6 May 2013, the plaintiff is to file and serve all affidavits of all witnesses upon whom he relies to prove his case with respect to his claim for the proceeds of Oz Lotto 188 which are presently unclaimed.