Renshaw v New South Wales Lotteries Corporation Pty Ltd [2019] NSWSC 1661

Supreme Court New South Wales

Medium Neutral Citation: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2019] NSWSC 1661 Hearing dates: On the papers Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Common Law Before: Walton J Decision: The defendants shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. Catchwords: COSTS Legislation Cited: Civil Procedure Act 2005 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Moseley v AB (No 2) [2017] NSWSC 1812 Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 Category: Costs Parties: David Owen Renshaw (Plaintiff / Respondent) New South Wales Lotteries Corporation Pty Ltd (First Defendant / First Applicant on Motion) The State of New South Wales (Second Defendant / Second Applicant on Motion) Representation: Counsel: J Hogan-Doran (Defendants / Applicants on Motion)

Solicitors: Russells Lawyers (Defendants / Applicants on Motion) File Number(s): 2016/328586

Judgment 1. HIS HONOUR: On 3 November 2016, Mr David Renshaw filed a statement of claim against New South Wales Lotteries Corporation Pty Ltd ("the first defendant") and the State of New South Wales ("the second defendant") (collectively, "the defendants") claiming for one of three first division prizes from an Oz Lotto Draw 188 drawn on 23 September 1997 ("Draw 188"). The prize was unclaimed. 2. Mr Renshaw claimed that he was the prize winner who had not received his prize. The statement of claim was amended twice, the last of which was, at the time the proceedings were before the Court as presently constituted, a second amended statement of claim filed 6 September 2017 ("the second ASOC"). 3. Mr Renshaw's claim was resisted by the defendants. The defendants initially filed separate defences but later jointly filed a defence to the first amended statement of claim ("the amended defence"). 4. On 19 April 2017, the defendants also filed a notice of motion to strike out the first amended statement of claim ("the first notice of motion"). The first notice of motion was amended twice. 5. The defendants ultimately pursued a further amended notice of motion filed on 5 December 2017 ("the motion"). 6. On 14 December 2018, the Court gave judgment in relation to the motion: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 ("Renshaw No 1"). 7. In Renshaw No 1, the Court reached the following conclusions at [231]-[234]: [231] In the circumstances, the claims in contract, negligence, trust and restitution must be struck out with no leave to re-plead. [232] The determination not to strike out the claims under the TPA and FTA was a product of the absence of pleadings in the defence raising an abuse of process (and perhaps that the claims were frivolous and vexatious) commensurate with the nature of the limitation provisions within the TPA and FTA (which were pleaded in the defence) (and the absence of a provision such as s 63 of the Limitation Act having the effect of extinguishing a time barred claim). [233] It is in this manner, therefore, considering the Victorian authorities of Van Win and Palmdale (and, as a matter of principle, the Federal Court decision of Mewett), the motion to strike out the causes of action for misleading or deceptive conduct under the TPA and FTA must fail. [234] That conclusion gives rise to a consideration as to whether each party should pay its own costs although there are aspects of the proceedings which may suggest another course. In the absence of either party pursuing costs within 7 days, notwithstanding this preliminary observation, the Court will make orders in those terms. 1. The Court made the following directions (at [235]): (1) The defendants shall bring in short minutes of order reflecting this judgment on the amended notice of motion within 14 days. (2) In the event that neither party agitates the question of costs beyond the observations in [234] of this judgment, the short minutes of order in (1) above will incorporate a provision giving effect to the same. (3) In the event that costs are pursued, then the short minutes of order shall convey that costs are reserved. (4) In the event that costs are reserved, the following program for submissions as to costs shall apply: (a) By no later than 14 days from the execution of the short minutes of order, the moving party on costs shall file and serve submissions in support of that application, the proposed order for costs and any evidence relevant to the question of costs; (b) Within 14 days of service of the submissions and evidence as to costs by the moving party, the responding party shall file and serve any submissions and evidence in reply; (c) In the event that both parties seek an order for costs, the defendants shall be the moving party and Mr Renshaw shall be the responding party for the purpose of these directions; and (d) Any issue as to costs shall be resolved on the papers except where either party seeks an oral hearing as to costs in which case, the question of costs shall be listed for hearing. 1. On 20 December 2018, the following orders were executed under seal in Chambers: 1. Paragraphs 33 to 37 and 42 to 52 of the Second Amended Statement of Claim be struck out. 2. On or before 31 January 2019 the plaintiff file and serve a Third Amended Statement of Claim in the form of the Second Amended Statement of Claim but removing the paragraphs referred to in order 1, with consequential renumbering. 3. On or before 28 February 2019 the defendants file and serve their defence to the second amended statement of claim. 4. The matter be listed for directions before the Registrar on 7 March 2019, with a view to the matter being heard as soon as possible. 5. The costs of the defendants' notice of motion filed on 5 December 2017 be reserved. 6. Further to order 5: (a) on or before 16 January 2019, the defendants shall file and serve submissions in support of any such application, the proposed order for costs and any evidence relevant to the question of costs; (b) on or before 30 January 2019, the plaintiff party shall file and serve any submissions and evidence in reply together with any other proposed order as to costs that it seeks; (c) any issue as to costs shall be resolved on the papers except where either party seeks an oral hearing as to costs in which case, the question of costs shall be listed for hearing; (d) any party seeking an oral hearing as to costs shall so indicate in its submissions. 1. The defendants filed written submissions on 15 January 2019 in response to those orders. The defendants seek orders that: 1. the plaintiff pay their costs of and incidental to the motion as agreed or assessed, including the costs of the affidavits of Mr Stuart McNamara sworn 17 October 2017 and 17 January 2018; and 2. the plaintiff pay their costs thrown away arising from any further amended statement of claim. 1. Their submissions, in support of that application for costs, were as follows: 3. The bases of the defendants' application for costs of the motion are that: (a) They were substantially successful on the motion, by: (i) the striking out of Mr. Renshaw's claim in contract under the Rules of the OzLotto Draw No. 188 that he was entitled to payment of a 1/3 share of the first division prize; (ii) the striking out of Mr. Renshaw's alternative claims in trust and restitution on the same basis; (iii) the striking out of Mr. Renshaw's claim in negligence for the alleged conduct of the newsagent in destroying his ticket; (iv) the striking out of Mr. Renshaw's pleadings for an extension of time in respect of his common law and trust claims under the Limitation Act 1969, whether by reason of disability or mistake; (v) refusal of leave to replead any of the above causes of action, and in that the only remaining claims by Mr. Renshaw under the Fair Trading Act 1987 and the Trade Practices Act 1974 (at 2ASOC 38 to 41), which remain subject to a limitation defence, where he has no pleaded basis to seek an extension of time to bring his claim; (b) most of the costs of the defendants including evidence and submissions were directed at: (i) the important question raised on the contractual claim whether a person who did not have a ticket had any arguable claim to payment under the Rules; and (ii) whether Mr. Renshaw was able to extend time by reason of any disability or 'mistake'. 4. The matters in 3(a) are apparent from the judgment of 14 December 2018 and orders made on 20 December 2018. 5. As to the matters in 3(b) (costs incurred), the defendants incurred costs because of the plaintiff's persistence with claims that were doomed to fail and/or otherwise liable to be struck out. The costs included: (a) the costs of the motion necessary to seek a strike out, and of amending the motion to accommodate the changes made by the plaintiff to his first amended statement of claim (becoming second amended statement of claim) following the defendants' criticisms of it; (b) the costs of the defendants on the directions hearings and hearing days as the plaintiff sought to replead his claim in light of criticisms made of it. These included: (i) directions hearing of 24 April 2017 (first directions hearing after filing of motion); (ii) the abandoned hearing date of 14 June 2017, where Mr. Renshaw was granted an adjournment giving him more time to seek representation, to give proper particulars of any disability he claimed to be suffering (which yielded his affidavit of 8 August 2017 referred to below) and to amend his claim especially to deal with extension of limitation periods, which were ultimately struck out; (iii) directions hearing of 13 July 2017, where more time was granted to the plaintiff to seek representation; (iv) directions hearing of 9 August 2017, where Mr. Renshaw was represented and was given more time to amend his claim and to give proper particulars of the precise ticket he says he purchased (yielding his affidavit of 6 September 2017 giving particulars of his claim and the 'Second Amended Statement of Claim' on which the motion was finally heard but also requiring the defendants to amend their motion); (c) evidentiary costs mostly directed at matters on which the defendants succeeded including: (i) defendants' evidence in support of the strike out, which was mostly directed at the Rules and the available records of NSW Lotteries, demonstrating that the claim in contract was doomed to fail and could not be resuscitated. See affidavit of Andrew Sutherland, sworn 19 April 2017 (read – T18.21) attaching copies of the rules and relevant regulations, and select correspondence between NSW Lotteries (or its solicitors) and Mr. Renshaw including to seek particulars from him as to his claims about when and the circumstances of purchasing his ticket. Pursuant to court orders later made, Mr. Renshaw committed to a particular set of facts and corrected the version of the rules on which he relied; (ii) the affidavits of Mr. McNamara of 17 October 2017 and 17 January 2018. These dealt with the process of purchasing and recording ticket entries, and the need to ensure the confidentiality of the winning ticket, responding to Mr. Renshaw's evidence. This evidence also affected the extent to which Mr. Renshaw was able to seek records from NSW Lotteries in support of the strike out application, by demonstrating that there was no record of any winning ticket on the date and in the time period that Mr. Renshaw claimed to have purchased a winning ticket. They also responded to Mr. Renshaw's affidavits insofar as they asserted the availability of records to prove his claim. These were not ultimately read for the purposes of strike out (T19.42-29)), but were necessary for the above purposes and because of Mr. Renshaw's various notices to produce seeking records including the winning ticket itself. (The costs of those notices to produce, which NSW Lotteries was relieved from having to comply with, as an incidence of the strike out application, would be sufficiently dealt with by including in the costs of the motion those affidavits as part of the costs of and incidental to the notice of motion. The proposed costs order specifically includes these affidavits of Mr. Renshaw lest they not be included in any assessment merely because they were not ultimately read on the application; (iii) considering Mr. Renshaw's affidavits of: (A) 13 May 2017 as to the factual history of the events in question and as to his personal circumstances (which was relevant to any claim to extend time) and his history of correspondence with NSW Lotteries claiming the prize (which primarily concerned his claim in contract under the Rules). This affidavit was read (T21.44); (B) 8 August 2017 (read - T22.20) as to his medical conditions. This affidavit was directed at a claim that Mr. Renshaw had a disability of a kind that supported an extension of time under the Limitation Act, the pleadings of which have been ordered struck out; (C) 6 September 2017 (read – T22.27) giving particulars of his claim as to the ticket purchased, which related to the contract claim which was struck out; (D) 17 November 2017 (filed 20 November 2017), 14 December 2017, supporting a claim for access to the records of NSW Lotteries including the winning ticket. At the hearing, Mr. Renshaw abandoned the 17 November 2017 affidavit as it was substantially reproduced in the December 2017 affidavit (T 21.41) which was read (T22.37). Also, the affidavit of 19 January 2018 (filed 23 January 2018) to like effect (read – T22.41); (d) the costs of the defendants' written submissions filed 13 February 2018 (of 20 pages). These were mostly directed at matters on which the defendants succeeded, and included an analysis of and submissions on: (i) the pleadings, which was necessary to the matters on which the defendants were successful (pp.3-5); (ii) the contract claim, and a discussion of the Rules governing the claim, and why it was doomed to fail, on which the defendants succeeded (pp.5-11); (iii) both the claim in negligence and misleading conduct and Mr. Renshaw's claim to extend time under the Limitation Act (pages 11-13), where the defendants were successful on the negligence claim and the claim to extend time; (iv) the claim in trust and restitution (pp.14-16), on which the defendants succeeded in seeking the claims struck out; (v) the pleading of extension of time based on mistake (pages 16-17), on which the defendants succeeded in seeking the claims struck out; (vi) the various legal bases for striking out claims, which was necessary for the defendants' success in respect of the contract, negligence, trust and restitution claims, and in respect of the allegations pleaded to extend time under the Limitation Act (pp.17-20). (e) The costs of considering the plaintiff's written submissions dated 20 February 2018, which dealt with: (i) the historical facts, relevant to all issues (esp. pp.3-5, para 10(a) to (z)); (ii) the claim in contract for breach of the rules (paras 11-43), which claim was struck out; (iii) an argument that: (A) there was a 'mistake' made (paras 40-42) which appears to have been a submission in support of an extension of the limitation period under the Limitation Act; (B) the Public Lotteries Regulation (reg 4) extended the limitation period on claims in contract (paras 45-47), each of which failed; (iv) submissions about a prior case against NSW Lotteries by Mr. Clemett, which were irrelevant and had no bearing on the application (paras. 50-58); and (v) a submission that NSW Lotteries should examine the plaintiff's claim against the record of the winning ticket (par 59), which was not accepted; (f) costs of preparing the court book; and (g) hearing costs. An examination of the transcript indicates that most of the hearing was focused on the claim in contract and how it was doomed to fail in the absence of a ticket, which also necessary affected the claims in restitution and trust that rose no higher. 6. If the court is minded to subtract some amount for the defendants' lack of success on the statutory claims, the defendants submit that a discount of 20% at most only be applied. That is, the defendants should have 80% of their costs of and incidental to the motion (including the costs of the affidavits of Mr. McNamara). 7. The defendants do not seek an order that either orders as to costs be payable forthwith. As such, any costs order will not prevent Mr. Renshaw from continuing with his action. An alternative, if the Court is so minded, is for the defendants costs of the motion be costs in the cause. 8. As to the costs of any amended claim, the defendants filed a defence to the first amended statement of claim. This included defences to the claims in contract, negligence, trust and restitution. A new defence will be required to be filed that pleads only to the misleading or deceptive conduct claim. It is appropriate that a party seeking to or required to amend pays the costs thrown away by the other party arising from such amendment. 1. The plaintiff filed written submissions on 30 January 2019, which submissions, in some respects, were not relevant or responsive to the defendants' application for costs (repeating, in part, arguments advanced with respect to the motion). In summary, the plaintiff opposed the application brought by the defendants and contended that it should be dismissed. The plaintiff advanced the following submissions: 1. The Plaintiff relies asserts he has made claim within the time limit required of 1st December 2016, set by the Public Lotteries Regulation 2016. 2. The Plaintiff Relies on the Limitation Act 1969 (NSW) Section 52(1) and 52(2) and Section ll(3)(b) to bring his action in both Contract and Tort within the limits specified by the Act. 3. The Plaintiff also relies upon; (a) Breach of Section 42 of the Fair Trading Act 1987 (NSW) as existing at the date of OZ Lotto draw #188; (b) Breach of Section 52 of the Trades Practices Act 1974 (Cth) as existing at the date of OZ Lotto draw #188; (c) Breach of Section 53 of the Trades Practices Act 1974 (Cth) as existing at the date of OZ Lotto draw #188. 4. The Plaintiff had lodged Statement of Claim dated 3rd November 2016 against the Defendants to make claim for the Unclaimed Prize of OZ Lotto draw #188 drawn 23rd September 1997. 5. The Plaintiff has also made this claim in an attempt to uphold the limitation set by Regulation 4, of the Public Lotteries Act. As the Defendants had rejected all of the Plaintiffs claims, refuting all letters and or lost or damaged claim forms. Upon inspection or determination at that time. 6. The Defendants had sought a Motion to Dismiss the Plaintiffs claim, filed 19th April 2017. 7. The Defendants have sought orders that the Plaintiff is to pay the Defendants costs for the Motion to Dismiss, brought against the Plaintiff. 8. The Plaintiffs Defence had been successful within Breaches of both; (a) Breach to Section 42 of the Fair Trading Act 1987 (NSW); (b) Breaches to both Sections 52 and 53 of the Trades Practices Act 1974 (CTH) 9. The Plaintiff has claimed to be the rightful unclaimed winner in the first Division prize of OZ Lotto draw #188. 10. The Plaintiff had witnessed the words "PROVISIONAL WINNER" after presenting his ticket to the Granville Agency and the ticket had been correctly duly processed by this Agent or Agency, on either the 25th or 26th September 1997. 11. The Plaintiff alleges his ticket in the Drawing of OZ Lotto draw #188 had unfortunately been incorrectly verified by the attendant, and then discarded in a waste bin by the licensed employee of the Granville Railway Station Agency. 12. The Plaintiff had not known the meaning of the status code or salute message displayed, upon the computer linked terminal within this Agency. 13. This Mistake in verification of the Plaintiff OZ lotto ticket by the licenced employee of the Granville Agency, has ultimately caused the Destruction of the Plaintiffs ticket. 14. The Plaintiff has alleged he has Discovered on about the 27th December 2015, the meaning of Provisional winner to be winning ticket which had been a Division one winner or the ticket had won a prize over $1000.00. 15. The Plaintiff also alleges to have purchased a ticket in the Drawing of OZ Lotto draw #188 on the 19th September 1997, from the Greenfield Park Agency between 2pm and 3pm. 16. The Defendants have not responded to subpoena to produce requests, of the first Division Winning Data file or Records for the Draw of OZ Lotto draw #188. 17. The Plaintiff states the First Division winning data file or results will be the only record or Data file that will assist this Court in the Discovery of his said claims. 18. The Plaintiff has attempted to show the extraction of Data to make a new record for a winning lottery ticket, through the use of lottery Patents explaining data collection and the validation process of a winning ticket. 19. The Defendants have also not responded to a Subpoena to Produce, the correct Patents in use by the ILTS SYSTEM. At the time and date of the incident described by the Plaintiff. 20. The Plaintiff alleges validation codes and/or procedures were not publicly known, nor printed upon the lottery tickets. 21. The Plaintiff alleges lottery validation codes or procedures had also NOT been displayed within Agents or Agencies of the Defendants, nor listed within the Rules of OZ Lotto. 22. The Plaintiff alleges the Defendants have utilised the Act of Secrecy, section 80 of the Public Lotteries Act. To hide the validation codes from consumers. 23. OZ Lotto rule 14(a)(i) states that only a validated ticket in which had been duly processed by a computer linked terminal and also had been validated within the prize claim period and had met all parameters of the lottery system, to be accepted to the prize pool. 24. It is a Publicly known fact the unclaimed prize of OZ Lotto draw #188 had already been allocated to the prize pool, and then transferred after a period of time to the consolidated unclaimed prize fund. 25. The Plaintiff alleges with the use of OZ Lotto rule 14(a)(i) it is acknowledged that a first division winning ticket for the drawing of OZ Lotto draw #188, having already been correctly duly processed within an Agency of the Defendants and also validated within the prize claim period to be accepted to the First Division prize pool for a given drawing. 26. The Defendants Failed in their Motion to Dismiss, the Plaintiffs claim. 27. The Plaintiff seeks this application in respect to costs awarded to the Defendants, to be dismissed. 28. The Plaintiff accepts the New South Wales Supreme court recommendation by Justice Walton within the Judgement made upon the 14th December 2018, which had been referenced that both parties are to pay their own costs for the proceedings. 29. The Plaintiff is a Disabled Pensioner and on Centrelink benefits. 1. No party sought an oral hearing as to costs.