Clemett v NSW Lotteries Corporation Pty Ltd (No 2) [2013] NSWSC 2037

Supreme Court New South Wales

Medium Neutral Citation: Clemett v NSW Lotteries Corporation Pty Ltd (No 2) [2013] NSWSC 2037 Hearing dates: 14 June 2013 Decision date: 14 June 2013 Before: McCallum J Decision: Plaintiff's application for further referral to a barrister or solicitor on the Pro Bono Panel for legal assistance refused Catchwords: PRACTICE AND PROCEDURE - representation - application for Court appointed referral for legal assistance - where plaintiff has obtained assistance under a previous referral Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Clemett v New South Wales Lotteries Corporation [2013] NSWSC 50 Category: Interlocutory applications Parties: Robert Clemett (plaintiff) NSW Lotteries Corporation Pty Ltd (ACN) 142 890 195 (defendant) Representation: Counsel: J Hogan-Doran (defendant) Solicitors: Plaintiff self-represented Russells (NSW) Pty Ltd (defendant) File Number(s): 2010/138776 2012/228369 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: Mr Robert Clemett brings these proceedings against the NSW Lotteries Corporation claiming payment of unclaimed winnings in a lottery draw known as Oz Lotto 188. Mr Clemett represents himself in the proceedings. 2The proceedings were listed before me for hearing on 15 May 2013. On that occasion there was no appearance by Mr Clemett, but a medical certificate was sent to the Court by a doctor in Penrith stating that Mr Clemett would be unfit for attendance at Court until 7 June 2013. In the circumstances I stood the matter over to today for hearing. 3At the same time I stood over to today a notice of motion filed by Mr Clemett on 7 May 2013. Mr Clemett has appeared today and moves on that motion seeking the following orders: (1)to enable electronic record subpoenaed 13 August 2012 to be forensically examined by computer forensic analyst; (2)pro bono legal panel application; (3)adjournment of matter until 26 June 2013. 4I determined at the outset of the hearing that it was appropriate first to determine the application for referral to a barrister or solicitor under the pro bono scheme established under Part 7 of the Uniform Civil Procedure Rules. 5Mr Clemett has previously obtained assistance pursuant to a referral under that scheme. Mr Villa of counsel represented Mr Clemett in an earlier application to this Court for preliminary discovery and for a period of time in these proceedings. In those circumstances, it is necessary to consider rule 7.36(2A) of the rules, which provides: The Court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years unless the Court is satisfied that there are special reasons that justify a further referral. 6I should note that apart from the referral accepted by Mr Villa, there was a further application for referral brought by Mr Clemett which was rejected by the Registrar last week. However, no transcript of the reasons for rejecting the application is yet available. Accordingly, I have not considered the rejection of that application as posing any impediment to Mr Clemett's application today, since I am simply unable to consider what was determined. 7Mr Clemett put forward the following matters as amounting to special reasons justifying a further referral. 8First, Mr Clemett states that he has come to Court telling the absolute truth as to the entry he lodged for Oz Lotto 188. It should be explained in that context that, during the time when Mr Villa was representing Mr Clemett pursuant to the previous referral, a subpoena was issued at Mr Clemmet's request calculated to secure the production to the Court of the defendant's electronic record of the winning entry. The defendant filed a motion to set that subpoena aside, but that motion was never heard. Rather Garling J, who had assumed the case management of the proceedings, took the matter down the path of having a printout of the defendant's electronic record of the winning entry provided on a confidential basis to an independent referee for comparison with the entry Mr Clemett says he lodged. 9Mr Clemett was represented by Mr Villa throughout that process. Mr Villa was involved in the inspection of a printout of the electronic records of all tickets issued and cancelled at the relevant newsagency during the dates and times Mr Clemett had over the years said he lodged a winning entry. PLAINTIFF: Can I just say one thing, your Honour? Mr Villa only ever looked at paper records. 10As already noted, Mr Villa saw only the paper records during that period. The electronic record is no longer accessible. 11The comparison of the confidential winning entry with Mr Clemett's entry was referred to Mr Brett Walker of senior counsel. His report answered specific questions in terms which, in summary, revealed that Mr Clemett's entry did not match the paper record of the winning entry. The report was subsequently adopted by the Court: Clemett v New South Wales Lotteries Corporation [2013] NSWSC 506. It was at that point of the proceedings that Mr Villa ceased to act for Mr Clemett, with the leave of Garling J. Mr Clemett's point in saying that he has come to Court telling the absolute truth as to the entry he lodged for Oz Lotto 188 is that the report of Mr Walker must accordingly be faulty. Mr Clemett thus seeks to explore the issue of the electronic record from which the document provided to the referee was printed out. 12The second special reason identified by Mr Clemett is his poor health. The third reason is his lack of expertise and his contention that he is not able to do justice to himself in the proceedings. 13Under rule 7.36, I should also have regard to Mr Clemett's means and his capacity to obtain legal assistance outside the scheme. Mr Hogan-Doran acknowledges that those are considerations in favour of granting an application. 14Thirdly, I am required to have regard to the nature and complexity of the proceedings. The principal issue as to which Mr Clemett now seeks further assistance is to explore the circumstances which have given rise to the defendant's position that the electronic record is no longer available for examination. I note in that context that at an earlier point in time, when Mr Clemett was represented by a barrister who had accepted a referral under the pro bono scheme, it was agreed that access would only be provided to paper printouts of the relevant records. 15I also note that the matter is listed for hearing today, having previously been listed for hearing on the occasion when Mr Clemett was unable to attend due to illness. 16In all the circumstances I am not satisfied that there are special reasons that justify a further referral under the scheme. In particular, the evidence before me today has persuaded me that there would not be any utility in giving Mr Clemett the assistance of representation by a legally qualified person, since it is clear enough that any further application that may be made in respect of the electronic records will not produce any further evidence of assistance to Mr Clemett. His previous representative has had access to paper records generated from electronic records and the referee has inspected the paper record generated from the electronic record of the winning entry. 17As Mr Clemett put it himself in submissions, his position now is, having seen the result of the referral to Mr Walker, that there was "funny business at the terminal" at the newsagency and that the newsagent needs to be brought to account. I do not see any utility, in that circumstance, in any further investigation as to why the electronic record previously accessible by the defendant is no longer accessible, particularly given that paper records or printouts of those electronic records exist and have been made available to a barrister representing Mr Clemett and to the referee in accordance with the previous orders of Garling J. 18Accordingly, the application for a further referral is refused.