Renshaw v New South Wales Lotteries Corporation Pty Ltd

1. [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. [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 of this judgment, a second amended statement of claim filed 6 September 2017 (“the second ASOC”).

3. [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. [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. [5]

   The defendants ultimately pursued a further amended notice of motion filed on 5 December 2017 (“the motion”). The motion was in the following terms:

6. [6]

   This judgment concerns the determination of the motion.

PLEADINGS IN THE SECOND ASOC

1. [7]

   The second ASOC set out five claims against the defendants:

   1. (1)

      a claim in contract;

   2. (2)

      a claim for misleading or deceptive conduct;

   3. (3)

      a claim in negligence;

   4. (4)

      a claim for breach of trust; and

   5. (5)

      a claim for restitution for money had and received.

The Ticket Purchased by Mr Renshaw

1. [8]

   Mr Renshaw pleaded that he purchased an “entry coupon” from the Greenfield Park newsagency (“the Greenfield newsagency”) on 19 September 1997 (“the ticket”). The ticket concerned Draw 188. Mr Renshaw particularised the purchase of the “ticket” (which was interchangeably referred to as “the entry coupon” in Mr Renshaw’s pleadings and submissions) (as follows (at para 10):

2. [9]

   Mr Renshaw set out the factual background to his claim as follows:

Claim in Contract

1. [10]

   Under the heading “Contract”, Mr Renshaw pleaded the following:

Misleading or Deceptive Conduct

1. [11]

   Under the heading “Misleading or deceptive conduct”, it was pleaded:

Negligence

1. [12]

   Under the heading “Negligence”, Mr Renshaw pleaded the following:

Breach of Trust and Restitution

1. [13]

   Mr Renshaw pleaded the following under the heading “Breach of Trust”:

2. [14]

   Further, under the heading “Restitution – money had and received”, it was pleaded:

The Limitation Act

1. [15]

   Most of the major amendments within the second ASOC related to the defendants’ defence that the Mr Renshaw’s claim fell outside of the limitation period. The following was pleaded at para 6 of the second ASOC:

2. [16]

   Mr Renshaw also pleaded reliance on s 56 of the Limitation Act 1969 (NSW). Under the heading “Section 14 of the Limitation Act”, it was pleaded:

Relief Sought

1. [17]

   Mr Renshaw sought nine aspects of relief under the heading “Relief Claimed” as follows:

2. [18]

   On the face of the pleadings, I accept the connection contended for by the defendants between the relief claim and the pleadings in the second ASOC:

   1. (1)

      Paragraph 1 of the relief sought was connected with the breach of contract claim from paras 33-37, the misleading and deceptive claim from paras 38-41 and the negligence claim from paras 42-44 of the second ASOC.

   2. (2)

      Paragraph 2 was “probably connected” in the same way outlined in (1) above and seemed to be an alternative claim in case it was demonstrated Mr Renshaw was entitled to other prize money other than the first division prize.

   3. (3)

      Paragraphs 3-5 related to interest and costs;

   4. (4)

      Paragraph 6 was connected to the allegation of breach of trust in paras 45-46;

   5. (5)

      Paragraph 7 was connected to reliance on s 56 if the Limitation Act paras 50-52;

   6. (6)

      Paragraph 8 was connected to para 52; and

   7. (7)

      Paragraph 9 appeared to be unnecessary because the effect of s 56 is that there is no need for an extension of time.

EVIDENCE ON THE MOTION

1. [19]

   The defendants relied on an affidavit from the defendants’ solicitor, Mr Andrew Paul Tennent Sutherland sworn 19 April 2017, which included an exhibit (APTS-1) containing 58 separate documents.

2. [20]

   Mr Renshaw relied on a number of affidavits sworn by him. They are set out in turn, below:

   1. (1)

      affidavit sworn 13 May 2017, including an exhibit consisting of 29 separate documents (this affidavit included evidence of, inter alia, Mr Renshaw’s presentation of the ticket at the Granville newsagent, matters “affecting” him from 1997 to 2015 (which included a basic outline of a workplace injury and personal matters such as work and family court proceedings), and when he may have realised he was a winner in 2008);

   2. (2)

      affidavit sworn 11 July 2017, including one annexure (which detailed the details of the ticket);

   3. (3)

      affidavit sworn 8 August 2017, including 13 annexures (which included, inter alia, evidence as to Mr Renshaw’s disabilities);

   4. (4)

      affidavit sworn 6 September 2017, including one annexure (which detailed material features of the ticket);

   5. (5)

      affidavit sworn 14 December 2017, including 18 annexures (which included, inter alia, further details of the ticket);

   6. (6)

      affidavit sworn 19 January 2018, including 2 annexures (which related to data files and annexed patents); and

   7. (7)

      affidavit sworn 20 February 2018, including 5 annexures (which annexed, inter alia, a consultant psychiatrist’s report and the prize claim form lodge by Mr Renshaw).

FACTUAL BACKGROUND

1. [21]

   The facts and circumstances as pleaded by Mr Renshaw or deposed of in his affidavits, so far as they bear upon the motion, shall be taken as accepted (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86 (“Hubbuck”) at 94 and LexisNexis, Richie’s Uniform Civil Procedure NSW (at 5 November 2018) [14.28.30]). The following represents a summary of the factual background.

2. [22]

   At least from the relevant time in 1997 to 31 March 2010, the first defendant was a State owned corporation established by s 5(1) of the Lotteries Corporatisation Act 1996 (NSW). It was then acquired by the Tattersalls Group. The first defendant carried on the business of conducting public lotteries in NSW including the “Oz Lotto” lottery.

3. [23]

   On 23 September 1997, the first defendant conducted Draw 188. The winning numbers were 10, 24, 28, 34, 37 and 45. The prize for Division 1 was $10 million. There were three winning tickets. One winner had pre-registered, and so was paid. One unregistered winner came forward to claim his or her prize. A third (unregistered) winner did not claim his or her $3.33 million share of the prize (“the unclaimed prize”). The third winning ticket was sold through the Greenfield Park Newsagency (at Shop 11, Greenfield Road, Greenfield Park NSW 2176, agent no 0987).

4. [24]

   In 2009, before privatisation, the Public Lotteries Act 1996 (NSW) was amended to include s 27A, which, together with reg 4 of the Public Lotteries Regulation, extended time for a prize to be claimed to 1 December 2016.

5. [25]

   Mr Renshaw pleaded that:

   1. (1)

      around 19 September 1997, he filled out an entry coupon for a game of Oz Lotto in Draw 188 which he lodged with the Greenfield newsagency;

   2. (2)

      in the week following the draw, he attended a different newsagency at Granville Railway Station (“the Granville newsagent”) and presented his ticket to the male attendant who inserted Mr Renshaw’s ticket into a computer linked terminal whereupon the words “Provisional Winner” appeared on the terminal. Mr Renshaw said this indicated that he had won the First Division prize (2ASOC par. 15-16);

   3. (3)

      what then occurred was:

6. [26]

   Mr Renshaw pleaded that he first became aware in 2015 that the words “Provisional Winner” meant that he had won the first division prize and that on and following 30 December 2015 he ‘claimed’ from the first defendant the unclaimed prize. This was disputed by the defendants, who contended it was untenable insofar as a claim is made in contract. Mr Renshaw’s deposed, in his affidavit sworn 13 May 2017, that he was aware that he “may” have won in 2008. Further, the defendants contended that his evidence was that he did not lodge any “claim form” as required by the applicable rules (namely, the rules published in the New South Wales Government Gazette, No 142, 24 December 1993, 7546 and amended as published in the New South Wales Government Gazette, No 68, 25 June 1997, 5167, summarised at [81] of this judgment, and hereinafter referred to as “the Rules”), but instead lodged “Lost/Damage Ticket Search” forms in which he applied for a search to be undertaken for a lost or damaged ticket.

7. [27]

   Mr Renshaw claimed against the first defendant for his prize, and alternatively against the second defendant in the event that the unclaimed prize had been paid into consolidated revenue per s 27A(3) of the Lotteries Act. The defendants contended that it did not matter whether the claim for payment in accordance with the Rules was made against the first defendant or the second defendant.

Prior to hearing from November 2016 to May 2017

1. [28]

   Mr Renshaw was self-represented through some parts of the proceedings and was represented for a period which will be identified below. He began the proceedings as a self-represented litigant.

2. [29]

   As mentioned above, Mr Renshaw filed a statement of claim on 3 November 2016. By way of summary, Mr Renshaw pleaded, inter alia, the following:

   1. (1)

      Mr Renshaw and the first defendant entered into a contract pursuant to which Mr Renshaw agreed to enter in Draw 188 in accordance with the Oz Lotto Rules and the first defendant agreed to pay the plaintiff the prize winnings to which he was entitled. It was pleaded that the first defendant breached that contract by failing to pay Mr Renshaw the prize winnings.

   2. (2)

      The first defendant or its agents made a number of representations and the first defendant engaged in misleading and deceptive conduct, or conduct likely to mislead and deceive.

   3. (3)

      The first defendant, by its servants and agents, was “guilty of negligence” by collecting Mr Renshaw’s entry coupon, processing the coupon through the computer linked terminal, not advising Mr Renshaw that he was a provisional winner and not returning his entry coupon to him.

3. [30]

   Initially, the first and second defendants were separately represented. In response to the statement of claim, the first defendant filed a defence on 21 December 2016 and the second defendant filed a defence on 20 January 2017.

4. [31]

   On 27 February 2017, Mr Renshaw filed an amended statement of claim (“the first ASOC”), pursuant to orders of the Registrar, which added a pleading that the defendants held the prize moneys on trust for Mr Renshaw and referred to the correct version of the Rules.

5. [32]

   On 6 April 2017, the second defendant filed a notice of change of solicitor and appointed the first defendant’s solicitor to represent it in these proceedings.

6. [33]

   On 19 April 2017, the defendants jointly filed the first notice of motion which sought orders in the following terms:

7. [34]

   The defendants also filed the affidavit of Mr Sutherland in support of that motion (set out at [19] above).

8. [35]

   On 5 May 2017, Mr Renshaw served four notices to produce on the defendants, two addressed to the first defendant and two addressed to the second defendant.

9. [36]

   On 11 May 2017, the defendants jointly filed a defence to the first ASOC (“the defence”).

10. [37]

    On 13 May 2017, Mr Renshaw swore an affidavit regarding the date and times of purchasing and filling out the Oz Lotto entry coupon and the presentation of the ticket after the drawing of Draw 188.

11. [38]

    On 30 May 2017, the defendants amended the first notice of motion by filing an amended notice of motion (“the amended notice of motion”), which sought an additional order that the notices to produce be set aside.

Partial hearing on 14 June 2017

1. [39]

   On 14 June 2017, the amended notice of motion was listed for hearing before the Court as presently constituted. At the outset of the hearing, counsel for the defendants indicated that they no longer pressed the order to set aside the notices to produce and indicated that the defendants were in a position to answer the notices to produce that morning.

2. [40]

   Mr Renshaw called upon the notices to produce. Counsel for the defendants, in response to one of the four notices to produce, produced a copy of a report by Mr Brett Walker in relation to Draw 188, which was prepared in relation to another claim by another plaintiff (see Clemett v NSW Lotteries Corporation Pty Ltd [2014] NSWSC 373 (“Clemett”)). As to the remaining three notices to produce, the defendants answered that there was nothing to produce.

3. [41]

   The Court then heard submissions from counsel for the defendants, in relation to the amended notice of motion, which were largely centred on whether Mr Renshaw had a disability within the meaning of s 11 of the Limitation Act to overcome the limitation period pursuant to s 14 of that Act.

4. [42]

   Following submissions on that question, the matter adjourned to permit Mr Renshaw, as a self-represented litigant, to do the following:

   1. (1)

      amend the first ASOC to ensure there was a proper pleading of Mr Renshaw’s disability (allowing him to bring the claim “out of time” pursuant to the Limitation Act);

   2. (2)

      produce evidence of what was pleaded as to (1) above in the first ASOC;

   3. (3)

      provide further written submissions; and

   4. (4)

      seek assistance from the Bar Association of New South Wales (during the hearing, Mr Renshaw indicated that was the course he intended to take).

Directions on 9 August 2017: particularisation of Mr Renshaw’s ticket and pleadings with regard to the Limitation Act

1. [43]

   On 9 August 2017, Mr Renshaw was represented by Mr D Burwood of counsel. Mr Burwood indicated he intended to file a reply to answer the defendant’s limitation defences (no such reply was filed in light of the following discussion). Mr Burwood also obtained an affidavit from Mr Renshaw as to Mr Renshaw’s medical history.

2. [44]

   The parties indicated there was an alternative course to requiring an expert witness to form an opinion on Mr Renshaw’s historical disabilities. It was proposed that the most “just, cheap and efficient” way of dealing with the matter was for the defendants to produce all tickets bought from the Greenfield newsagency between the times identified by Mr Renshaw as a confidential exhibit (“the confidential exhibit”) and annex it to an affidavit of an officer from the first defendant to allow the Court to compare the confidential exhibit to what Mr Renshaw contended was his winning ticket. The “winning ticket” was not included as part of the confidential exhibit, rather the records showed the tickets purchased during the time identified by Mr Renshaw as to when he purchased the ticket.

3. [45]

   The parties also discussed the need for Mr Renshaw to clearly identify the material features of the winning ticket he claimed that he bought.

4. [46]

   Following the hearing on 9 August 2017, and consistent with the proposed procedure, the parties filed consent orders that were executed and sealed on 18 August 2017 in the following terms (hereafter referred to as “the first set of consent orders”):

5. [47]

   On 5 September 2017, Mr Renshaw filed a notice of appointment of solicitor, appointing Mr David Barry Wilson of Wilsons Solicitors to act as his solicitor.

6. [48]

   On 6 September 2017, in accordance with the first set of consent orders, Mr Renshaw filed the second ASOC which included, inter alia, the following:

   1. (1)

      a pleading relying on s 52(1) and (2) and s 11(3)(b) of the Limitation Act (see [14] above);

   2. (2)

      particularisation of Mr Renshaw’s diseases and impairments to his physical or mental condition (see [14] above); and

   3. (3)

      particularisation of the ticket purchased by Mr Renshaw (see [8] above).

7. [49]

   On 17 October 2017, Mr Stuart James McNamara, a Test Analyst employed by Tatts Group and former employee of the first defendant, swore an affidavit which annexed, inter alia, the confidential exhibit. That affidavit was not relied upon for the purposes of the determination of the motion.

Directions on 25 October 2017: provision for access to confidential exhibit

1. [50]

   Again, in accordance with the first set of consent orders, the matter was listed for directions on 25 October 2017 to discuss how the confidential exhibit would be viewed by the Mr Renshaw. It was agreed that Mr Renshaw would be allowed the opportunity to view the confidential exhibit in the presence of his solicitor or counsel. However, he would not be allowed to make or otherwise produce copies of it.

2. [51]

   The Court made the following order on 7 November 2017, by consent, in relation to the inspection of the confidential exhibit (hereinafter referred to as the “second set of consent orders”):

3. [52]

   On 20 November 2017, Mr Renshaw filed an affidavit sworn 17 November 2017, in which he claimed that he had a new recollection of his ticket purchase. That affidavit was not relied upon in relation to the hearing of the motion because the evidence within that affidavit was included in a further affidavit sworn by Mr Renshaw on 14 December 2017 (discussed further below). The next day, on 21 November 2017, Mr Wilson filed a notice of intention to file notice of ceasing to act.

Directions on 23 November 2017: continuance of proceedings and strike out application

1. [53]

   In accordance with the second set of consent orders, the matter was listed for directions on 23 November 2017. Mr Renshaw appeared on his own account.

2. [54]

   Counsel of the defendants indicated that the second set of consent orders, namely, the procedure allowing the plaintiff to view the confidential exhibit, had been complied with and that Mr Wilson attended the defendants’ solicitor’s office without Mr Renshaw. It was indicated that Mr Wilson was satisfied no winning ticket was purchased between the times identified by Mr Renshaw.

3. [55]

   Mr Renshaw indicated to the Court that he intended to pursue the second ASOC, and counsel for the defendants indicated that they intended to proceed on their motion to strike out Mr Renshaw’s claim. The following directions were made by the Court on that day:

4. [56]

   On 5 December 2017, the defendants filed the motion (being the further amended notice of motion extracted at [5] above). As mentioned above, that is the motion upon which this judgment proceeds.

5. [57]

   In an affidavit sworn 14 December 2017, Mr Renshaw deposed that he had “a new recollection” of the winning ticket after he “[studied] the court transcripts” of the plaintiff in Clemett (which, as noted above, related to a previous claim for the unclaimed prize from Draw 188). Mr Renshaw recalled that:

   1. (1)

      there were three identical games;

   2. (2)

      all three games contained six numbers within the standard portion of the ticket; and

   3. (3)

      Mr Renshaw “dropped a number from each of the six hand marked 7 games to make the six hand marked standard”.

6. [58]

   This new recollection of the ticket altered Mr Renshaw’s particularisation of the ticket in the second ASOC, in which Mr Renshaw stated (repeating the extraction above) “played 6 games of Systems 7, he played 6 standard games and 6 or 9 or 10 games of Auto Pick or Quick Pick”.

Hearing on 6 March 2017

1. [59]

   The motion was heard on 6 March 2018.

2. [60]

   Prior to the hearing, on 1 February 2018, Mr Renshaw issued a number of subpoenas and notice to produce to the defendants seeking, inter alia, the “Winning Data” files or records of Draw 188. Counsel for the defendants made an oral application for the subpoenas to be set aside because, it was contended they did not have any bearing on the strike out application. The Court ruled that the matters sought to be produced were irrelevant to the determination of the strike out application and therefore stood them aside until the determination of the strike out application.

3. [61]

   It should be noted that the Mr McNamara’s affidavit (see [49] above) and confidential exhibit were not before the Court for the present application after counsel for the defendant conceded that they were not relevant for the strike out application.

ISSUES

1. [62]

   The cases of the parties shall be elaborated upon under the heading “Submissions of the parties on the motion”. What appears below is a brief overview of the issues ventilated by the parties.

2. [63]

   The defendants identified six bases upon which it based its application on the motion. The issues raised in that context were as follows:

   1. (1)

      Whether Mr Renshaw’s claim in contract to be paid in accordance with the Rules governing Draw 188 was doomed to fail, because:

   2. (2)

      Whether any claim for breach of contract by reason of any conduct of the Granville newsagent or the first defendant was out of time, pursuant to either the Public Lotteries Regulation or the Limitation Act, even though Mr Renshaw claimed for denial of his lodged claim is within the time permitted by the Public Lotteries Regulation.

   3. (3)

      Whether the loss, in respect of Mr Renshaw’s claim of misleading or deceptive conduct or alternatively negligence, crystallised in 1997 and whether that aspect of his claim was out of time by operation of the Limitation Act.

   4. (4)

      Whether Mr Renshaw’s claim for breach of trust rose any higher than his breach of contract claim; and further whether there were material facts from which any trust arrangement could be concluded. A related issue was whether the claim of breach of trust was also out of time.

   5. (5)

      Whether Mr Renshaw’s pleadings as to restitution disclosed a cause of action and, again, whether that claim was out of time.

   6. (6)

      Whether s 56 of the Limitation Act extended the limitation period, and whether the causes of action were founded upon mistake.

3. [64]

   Mr Renshaw resisted the strike out application broadly on the following bases:

   1. (1)

      he contended the causes of action did not accrue until 2015 (reliance was placed on s 56 of the Limitation Act);

   2. (2)

      in the alternative, he relied upon s 52 of the Limitation Act to allow him to bring the second ASOC out of time; and

   3. (3)

      the winning ticket would not have been included in the “general data” file (from which the confidential exhibit was found), but rather that the winning ticket would have been in a “winning data” file (this point was never entirely clear but in any event became irrelevant as the confidential exhibit was not in evidence for the hearing of the motion).

Strike out Provisions

1. [65]

   The defendants relied on r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and s 61(3)(b) of the Civil Procedure Act 2005 (NSW) (“CPA”) to strike out the entirety of the second ASOC or, in the alternative, strike out paras 33-52 of the second ASOC.

2. [66]

   Section 61 of the CPA is in the following terms:

3. [67]

   Rule 14.28 of the UCPR is in the following terms:

Limitation Provisions

1. [68]

   The provisions within the Limitation Act are important for the consideration of the strike out application currently before the Court.

2. [69]

   Section 11(3) of the Limitation Act defines whether a person is “under a disability” as follows:

3. [70]

   Section 14(1) deals with the limitation period generally and is extracted below:

4. [71]

   Section 48 relates to the operation of the limitation period with respect to breaches of trust. It is in the following terms:

5. [72]

   The term “trust” is defined in s 11 as follows:

6. [73]

   Section 52 relates to the impact of disability on the limitation period and is set out below::

7. [74]

   Section 56 deals with the limitation period relating to a cause of action from the consequences of a mistake, it provides as follows:

8. [75]

   Section 63 deals with the extinguishment of a cause of action for damages and is extracted in full:

9. [76]

   Section 82 of the Trade Practices Act 1974 (Cth) (“TPA”) was amended in 2001 by the Trade Practices Amendment Act (No 1) 2001 (Cth) (“the TPA Amendment Act”) to extend the limitation period for, inter alia, claims for damages as a result of misleading or deceptive conduct in Pt V of the TPA to 6 years. That section, as amended in 2001, provides as follows:

10. [77]

    Sections 68(1) and (2) of the Fair Trading Act 1987 (NSW) (“FTA”) (as it applied in 1997) were in similar terms to s 82 of the TPA and provided the following:

Submissions of the Defendants

1. [78]

   The defendants submitted that the claim within the second ASOC was an action for debt rather than damages for breach of contract because Mr Renshaw claimed for an amount due in accordance with the applicable Oz Lotto rules, namely, the Rules (see summary below at [81]).

2. [79]

   The defendants contended that Mr Renshaw’s claim in contract was doomed to fail because he was unable to present a “winning ticket” and therefore could not (and did not) make a claim in accordance with the Rules on or before 1 December 2016. (As mentioned earlier at [25] above, it should be noted that 1 December 2016 is the relevant cut-off date pursuant to the Public Lotteries Act and the Public Lotteries Regulation).

3. [80]

   The defendants also contended that Mr Renshaw could not provide anything equivalent to a “ticket” or arguably establish the authenticity of his claim.

4. [81]

   The defendants provided the following summary of the Rules:

5. [82]

   Based upon the above extracted analysis of the Rules, the defendants contended that the claim in contract was doomed to fail for four reasons:

   1. (1)

      Mr Renshaw was not able to produce the winning ticket as expressly required by Rule 14(e) and the particulars required by Rule 14(h) (see paras 17(2) and (5) extracted at [81] above).

   2. (2)

      Mr Renshaw did not lodge a claim form in accordance with Rule 14(e) and (h) noting that he did not have a ticket. Instead, Mr Renshaw lodged over 100 “Lost/Damaged Ticket Search” forms. In the result, it was contended Mr Renshaw did not present a claim at all, nor did he do so by 1 December 2016. (It should be noted that Mr Renshaw did in fact lodge a prize claim form which was in evidence, however, he did so on 31 May 2017).

   3. (3)

      Considering (1) and (2) above, the most Mr Renshaw could point to was the General Manager’s absolute discretion to pay prizes. The defendants contended, however, that discretion only arose after all prizes had been paid. In any event, it was submitted “when the terms of a contract confer upon one of the parties to it an absolute or unfettered discretion to do or refrain from doing an act the term must be given effect and the words conferring the discretion their full force”. In that respect, the defendants relied on Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 (“Murphy v Zamonex”) (per Giles J). The defendants submitted that Mr Renshaw had no entitlement to the absolute discretion of the General Manager. Further, it was contended that, even if any exercise of the General Manager’s absolute discretion was reviewable on grounds such as unreasonableness or irrationality, there was no allegation or basis to alleged that the General Manager’s discretion in this case was anything other than fair and rational.

   4. (4)

      The contemporaneous records of all tickets purchased from the Greenfield newsagency on the date and in the time period pleaded by Mr Renshaw showed that no winning ticket was purchased within that timeframe. It was contended, therefore, that Mr Renshaw could not prove that he purchased a winning ticket in that timeframe.

6. [83]

   It should be noted in relation to point (4) above, the defendants made submissions as to the contemporaneous records being the confidential exhibit. As noted above (at [48]), the defendants did not ultimately rely upon the affidavit of Mr McNamara which annexed the confidential exhibit. Hence, the defendants cannot rely upon their submissions relating to that exhibit. However, for completeness, it should be noted that the defendants submitted the following:

   1. (1)

      The evidence was that the first defendant retained a print-out of all the tickets purchased from the Greenfield newsagency within the time period pleaded by Mr Renshaw;

   2. (2)

      The paper records pre-date changes in computer systems by the first defendant. Those changes meant that in recent years, such records could not be accessed or printed. Mr McNamara made clear that those changes in the systems and loss of records did not mean that available records were not reliable, rather it merely meant that further records would be difficult or impossible to obtain; and

   3. (3)

      The records demonstrated that there is no record of any winning ticket being purchased on the date and during the time period pleaded by Mr Renshaw. It was contended that “[t]here is no ‘ticket of the kind Mr Renshaw relies upon that can be reproduced from any of the records of [the first defendant]; not because of any deficiency in the records but because no such record exists”.

7. [84]

   As to the claim in contract, counsel for the defendants was questioned as to the potential compliance with the applicable Rules if “provisional winner” did appear, as contended by Mr Renshaw, at the Granville newsagent and the newsagent then destroyed the ticket (the example given was setting the ticket on fire).

8. [85]

   Counsel indicated that there were two situations arising from those circumstances:

   1. (1)

      there could not be compliance with the Rules; or

   2. (2)

      the purchaser of the ticket could write to the first defendant explaining the destruction of the ticket and identifying with particularly to satisfy the first defendant that person owned a winning ticket.

9. [86]

   As to (2) above, counsel identified two mechanisms to rectify the purchaser’s position. The first was the discretion of the General Manager to make a payment, notwithstanding non-compliance with the Rules, and the second was for the first defendant to re-print the ticket. If a ticket was re-printed, the purchaser could lodge a claim in the proper form.

10. [87]

    Hence, the defendants conceded that, taking that situation into account, the primary deficit in Mr Renshaw’s case was the limitation period (assuming that the throwing away by the newsagent of Mr Renshaw’s ticket constituted the destruction of a ticket).

11. [88]

    Hence, the effect of the Limitation Act became the crux of the defendants’ case in answer to strike out the claim in contract, noting that the debt claimed by Mr Renshaw would have accrued in 1997.

12. [89]

    The defendants submitted that Mr Renshaw’s claim for misleading or deceptive conduct under s 42 of the FTA or ss 52 and 53 of the Trade Practice Act was difficult to follow.

13. [90]

    It was noted that, in substance, the claims constituted complaints as to breach of contract (the Granville newsagent failed to follow the Rules) and negligence (the Granville newsagent failed to take reasonable care in handling Mr Renshaw’s winning ticket).

14. [91]

    In any event, the defendants distilled the following as to Mr Renshaw’s complaints of misleading and deceptive conduct:

    1. (1)

       the first defendant represented to Mr Renshaw that the Granville newsagent would act in accordance with the Rules and take care to correctly process his ticket, which was misleading because that did not occur; and

    2. (2)

       the first defendant, through the Granville newsagent, represented to Mr Renshaw that he was a “Provisional Winner” but he was not entitled to the return of the ticket.

15. [92]

    As to negligence, the defendants contended it appeared to be claimed by Mr Renshaw that there was a form of negligent misrepresentation by the Granville newsagent for “not advising the plaintiff that he was a Provisional Winner and not returning him the entry coupon” (second ASOC at para 40).

16. [93]

    It was submitted that the alleged acts of negligence and misleading or deceptive conduct could only have caused loss to Mr Renshaw if he was deprived of retrieving and lodging his claim for the unclaimed prize in accordance with Rule 14(e) by that conduct.

17. [94]

    Upon the disposal or destruction of the ticket, Mr Renshaw was unable to make a claim in accordance with the Rules and, thus, lost the chance of claiming the unclaimed prize. Therefore, the defendants contended that the crystallisation of the loss occurred in September 1997.

18. [95]

    The defendants’ submissions on the limitation period will be considered below.

19. [96]

    The defendants contended that Mr Renshaw’s claim for breach of trust rose no higher than his breach of contract claim. The defendants further submitted that, whilst it was “baldly asserted” in the second ASOC that the prize money was held on trust for Mr Renshaw, there was no allegation or particulars of the alleged breach of trust. The defendant contended that there were no allegations of any fact, matters or circumstances giving rise to any trust in favour of Mr Renshaw.

20. [97]

    In particular, it was submitted that there was no allegation of fact giving rise the existence of an express trust including any of the three certainties of intention, subject matter and object: Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 at [7] (per French CJ). Further, the defendants submitted that there was no allegation of facts or matters giving rise to any constructive or resulting trust.

21. [98]

    It was contended that there was nothing in the Rules or relevant legislation which created a trust. The defendants submitted the following:

22. [99]

    The defendants submitted that even if the prize fund was a form of purpose trust (namely, a Quistclose trust), it could only be an express trust for the benefit of eligible prize winners and Mr Renshaw had no entitlement under the Rules. Hence, no funds were held on trust for him.

23. [100]

    The defendants submitted that this claim was also out of time pursuant to s 14 of the Limitation Act.

24. [101]

    In any event, it was contended that the pleading at para 47 of the second ASOC was embarrassing and did not disclose a cause of action separate from any contractual claim.

25. [102]

    The defendants submitted that there was no basis for a claim in restitution where there was a contract, unless the claim was not in contradiction to the contract: Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 at [79] (per Gummow, Hayne, Crennan, and Kiefel JJ). It was contended there could be no “unjust enrichment” if there was no contract on foot.

26. [103]

    It was also contended that a claim for money had and received required money (or another benefit) conferred by the plaintiff to the defendant, and such a claim was untenable where the prize money was never received by the defendant from the plaintiff: see Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [25]-[26] (per Gleeson CJ, Gaudron, and Hayne JJ); Huntley Management Ltd v Australian Olives Ltd (2010) 186 FCR 430; [2010] FCAFC 98 at [38]-[54] (per Jacobson, Gilmour, and Foster JJ). The defendants submitted the only money received from the plaintiff was the price paid for the ticket he claimed to have bought, which was $61.75.

27. [104]

    At the outset, it should be noted that counsel for the defendants conceded that the question of the limitation period was critical to the application on the motion. This was particularly relevant to the claim on contract (see the discussion from [84]-[88] above in that respect).

28. [105]

    The defendants relied upon the Limitation Act to answer the claims in contract, negligence, misleading or deceptive conduct, trust and restitution (noting that the defendants pleaded reliance on the Limitation Act in the defence).

29. [106]

    In response to Mr Renshaw’s pleading placing reliance upon s 52 of the Limitation Act (relating to suspension of the limitation period for the duration of a disability), it was submitted that s 11(3)(b)(i) of the Limitation Act required that Mr Renshaw’s disability render him “incapable of, or substantially impeded in, the management of his… affairs in relation to the cause of action”.

30. [107]

    It was contended that “at best”, Mr Renshaw had a disability in the period from 19 September 2000 “to the date 16 months thereafter”, during which he was in hospital and unable to move for some period. (Mr Renshaw deposed, in his affidavit of 13 May 2017, that he was hospitalised for 16 months after his workplace accident and spent the next two years in a wheelchair).

31. [108]

    The defendant submitted that there was no evidence of any disability within the meaning of the Limitation Act after that time, and noted the following:

32. [109]

    Counsel for the defendants made the following oral submission in reply to the question of Mr Renshaw’s disability:

33. [110]

    As to Mr Renshaw’s reliance on s 56 to avoid the limitation period in the Limitation Act, the defendants noted that s 56 applied “where there is a cause of action for relief from the consequences of a mistake” and provided that time does not commence to run in such an action until the plaintiff “first discovers, or may with reasonable diligence discover”, the mistake.

34. [111]

    The defendants submitted that the second ASOC did not disclose any cause of action for relief from the consequences of a mistake of Mr Renshaw. It was contended that mistake about whether a claim exists in negligence or contract (or any other claim barred by s 14) is not a mistake for the purposes of s 56.

35. [112]

    It was submitted that s 56 applies to causes of action founded on the consequences of a mistake (for example, mistaken payment): see Hillebrand v Penrith Council [2000] NSWSC 1058 (“Hillebrand”) at [45]-[50] (per Austin J); Sinclair v Registrar-General [2010] NSWSC 173 at [33]-[39] (per Rein J); National Australia Bank v Sayed (No 6) [2016] NSWSC 1253 at [35]-[40] (per Davies J); Strano v Australian Capital Territory (2016) 306 FLR 232; [2016] ACTSC 4 at [88]-[98] (per Penfold J).

36. [113]

    It was submitted that any claim in contract was time limited to no later than about 23-30 September 2003, in accordance with s 14(1)(a) of the Limitation Act. The defendants contended that Mr Renshaw’s claim was extinguished at that time pursuant to s 63 of the Limitation Act.

37. [114]

    The defendants submitted the following:

38. [115]

    Thus, it was contended by the defendants that leave should not be granted to Mr Renshaw to re-plead the claim in contract based upon the acts of the Granville newsagent disposing of the ticket because the acts took place in 1997 and, therefore, the breach and loss crystallised at that time.

39. [116]

    The defendants responded to Mr Renshaw’s alternative allegation, at para 52 of the second ASOC, contending that the cause of action did not accrue until 27 December 2015 when the defendants failed to pay the prize on demand. It was submitted that “for reasons already set out above”, the causes of action in breach of contract (other than refusal to pay a claim), negligence and misleading or deceptive conduct accrued in 1997.

40. [117]

    The defendants contended that it is plain from an examination of the pleaded facts and the Rules that Mr Renshaw’s claim was doomed to fail, and should therefore be struck out because:

    1. (1)

       whilst Mr Renshaw pleaded in contract that the Rules applied to his claim, he failed to identify how he was entitled to the payment of the unclaimed prize in accordance with the Rules;

    2. (2)

       the claim in trust rises no higher that Mr Renshaw’s contractual entitlement even if it were properly pleaded as a cause of action; and

    3. (3)

       the claims in negligence and for misleading or deceptive conduct were out of time. It was submitted that there was no pleading or evidence of disability which would extend time to such an extent that Mr Renshaw’s claim could have been brought within time.

Submissions of Mr Renshaw

1. [118]

   The following represents a summary of Mr Renshaw’s submissions. So far as possible, the summary of his submissions (noting the submissions were drafted by a self-represented litigant) have been grouped to conform with the issues raised on the motion.

2. [119]

   Central to Mr Renshaw’s claim in contract was the contention that his ticket was “duly processed” by the Granville newsagent in September 1997.

3. [120]

   As to the existence of the contract, Mr Renshaw submitted that the first defendant “established or re-established” the contract by sending Mr Renshaw a “Lost/Damaged” search claim form.

4. [121]

   He contended that he was under the expectation (having been told by the first defendant) that, if he correctly completed a “Lost/Damaged” search claim form before 1 December 2016, the first defendant would send him a “prize claim form”. Mr Renshaw submitted that at no stage had the first defendant sent or offered him a prize claim form to complete. Mr Renshaw submitted that he completed a prize claim form, dated 31 May 2017, in accordance with the Rules (the form was annexed to his affidavit of 20 February 2018).

5. [122]

   In response to the defendants’ contention regarding Mr Renshaw’s non-compliance with the Rules, Mr Renshaw contended that any failure by him to comply with the Rules was solely as a result of fault by the Granville newsagent and not by his conduct.

6. [123]

   It was further contended that there was no provision within the Rules to accommodate a subscriber who was found to have a winning ticket for a prize exceeding $1,000 which had been duly processed but incorrectly verified and the ticket then destroyed by an employee of a newsagent within the relevant claim period.

7. [124]

   Mr Renshaw made a number of submissions regarding how lottery ticket data was processed through computer systems, how data was stored in different files, and how the data was processed.

8. [125]

   Mr Renshaw contended that the “ILTS computer linked terminal system”, the computer system which processed lottery tickets at the time (“computer linked terminal”), could have only allocated a winner to the prize pool if a Division One provisional winning ticket was processed by a computer linked terminal.

9. [126]

   Thus, Mr Renshaw argued, if a winning ticket had not been duly processed within the prize claim period, then the ticket would not have been allocated to the prize pool. From this it may be assumed that Mr Renshaw was attempting to prove that his winning ticket was duly processed and as a result, the unclaimed prize allocated in the prize pool was his.

10. [127]

    Mr Renshaw made an additional submission regarding the “general data” file from which the confidential exhibit was extracted. Again, it should be noted that the confidential exhibit was not before the Court in these proceeding – the following is noted for completeness. It was submitted that general data files do not contain data from a “duly processed and valid Division One Provisional Prize Winning Ticket”. He submitted that a new record was made in a “Winning Data” file which would have included all data from the initial purchase until the final validation of the ticket. As noted above, subpoenas relating to the “Winning Data” files were deemed to be irrelevant for the purpose of the application presently before the Court.

11. [128]

    Submissions were also made in regard to patents in which Mr Renshaw referred to patents for lottery systems from the United States, annexed to his affidavits of 14 December 2017 and 19 January 2018, respectively. The defendants responded in oral submissions in reply that those patents had nothing to do with the defendants.

12. [129]

    Mr Renshaw submitted that a “breach of trust” arises for any subscriber attempting to make a claim from the first defendant for an unclaimed prize. Neither this issue nor issue (5) were expanded upon further by Mr Renshaw.

13. [130]

    Mr Renshaw submitted that bearing in mind that Draw 188 was over 20 years ago, his claim was still within time noting that the statement of claim was first lodged on 3 November 2016. Mr Renshaw did not expand upon the reasons why he was still within time, however it shall be assumed that he was referring to his reliance upon ss 52 and 56 of the Limitation Act.

14. [131]

    Mr Renshaw submitted that his claims in both contract and tort were “within time” placing reliance on ss 52(1)-(2) and 11(3)(b). In oral submissions, Mr Renshaw expanded upon his disabilities, as pleaded and in evidence, as follows:

    1. (1)

       In 1996, Mr Renshaw was diagnosed with “Intermittent Explosive Disorder” and was medicated with Epilim (evidenced by a consultant psychiatrist report, dated 20 August 1996). Mr Renshaw said that he was medicated on Epilim at the time of Draw 188.

    2. (2)

       In 2000, Mr Renshaw suffered a workplace injury, which required a shoulder reconstruction. Shortly after that injury, he was diagnosed with Guillain-Barre Syndrome, an auto-immune disease which caused shakes throughout his body, and temporarily rendered him a quadriplegic. (Mr Renshaw did not specify how long he was a quadriplegic for, though in his affidavit of 8 August 2017 indicated that he spent 2001 and 2002 learning to walk again, and 2002 to 2004 learning to walk without the assistance of a walking device).

    3. (3)

       As to the period of 16 months in which Mr Renshaw deposed that he was hospitalised after the workplace accident and his diagnosis of Guillain-Barre Syndrome, Mr Renshaw submitted that he did not include in that time frame the rehabilitation he went through. That rehabilitation included attending an aged care and disability centre where he learned to walk again with stroke victims. Mr Renshaw submitted that, since the accident, he has had constant mental and physical exhaustion.

    4. (4)

       Mr Renshaw reiterated that between 2001 and 2004, his mobility was compromised, and that in 2005 and 2006 he was unable to attend to his business. He submitted that he tried to conduct his business with the assistance of his wife. She would deal with the accounting, phones and computers, whilst he “sat in the truck” and spoke to customers to “be the face of [his] business”.

    5. (5)

       In relation to the motor vehicle accident on 14 July 2007, Mr Renshaw submitted that he went through numerous x-rays, CT and MRI scans.

    6. (6)

       Mr Renshaw noted that he is currently on alert for cancer for reactive lymph nodes in his chest and arms, and that his right arm had gone numb.

    7. (7)

       He submitted his incarceration in 2008 for 8 months was as a result of false complaints to the police.

    8. (8)

       Mr Renshaw was diagnosed with squamous cell carcinoma in 2009.

    9. (9)

       On 23 March 2010, Mr Renshaw had a seizure or mini-stroke where he could not use his hands or speak for a few hours. Since the stroke, Mr Renshaw has been on painkillers.

15. [132]

    It should be noted that Mr Renshaw pleaded that “because of mistake”, the first time he was able to discover he purchased the winning ticket was around 27 December 2015. In the second ASOC, Mr Renshaw particularised that mistake, namely, that the Granville newsagent represented that Mr Renshaw’s ticket was not a winning ticket, Mr Renshaw believed the newsagent’s advice, and only became aware he purchased the winning ticket in 2015.

16. [133]

    Mr Renshaw expanded upon that “mistake” in written submissions, contending that he questioned the employee of the Gravnville newsagent and after that Mr Renshaw felt that he was possibly incorrect because he was dyslexic and he second guessed himself.

17. [134]

    However, Mr Renshaw further relied upon a different “mistake” in his written submissions, namely, that the computer linked terminal allegedly did not capture Division One provisional winning tickets. He alleged that attendants at a newsagent would process a ticket and then validate the ticket visually when a status code was displayed onto a screen. Mr Renshaw submitted that a mistake was made in the verification by the Granville newsagent of his winning ticket, and that such a mistake extended “all of the limitation periods to the date proceedings commenced”.

18. [135]

    Mr Renshaw submitted that he first discovered that he may be the winner of Draw 188 in around December 2015, at which time he immediately notified the defendants in a letter dated 27 December 2015.

19. [136]

    It should be noted that in submissions, Mr Renshaw re-iterated the evidence in his affidavit of 13 May 2017, namely, under the heading “Realisation that I may have won Oz Lotto”, Mr Renshaw deposed that he made inquiries with the first defendant in or around 2008 and noted that his findings were inconclusive.

20. [137]

    Mr Renshaw also made submissions regarding causes of action which were not pleaded, namely, estoppel and knowing receipt. Mr Renshaw did not expand upon those submissions other than contending that he believed he was being treated “unfairly and unjust[ly]” by the defendants. Mr Renshaw cited Jordan v Money (1854) 10 ER 868, in regard to estoppel, and Barnes v Addy (1874) LR 9 Ch App 244, with regard to knowing receipt. However, he did not expand upon those authorities. The defendants did not engage with those arguments.

21. [138]

    Mr Renshaw also made submissions as to Mr Clemett’s claim for the unclaimed prize from Draw 188. Again, the defendants did not engage with those submissions.

General Principles in relation to Strike Out Applications

1. [139]

   Under r 14.28 of the UCPR, the Court may strike out the whole or any part of a pleading, if the pleadings (inter alia):

   1. (1)

      discloses no reasonable cause of action;

   2. (2)

      has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

   3. (3)

      is otherwise an abuse of the process of the court (see also r 13.4).

2. [140]

   The Court may strike out a claim if an absence of a viable claim is clearly demonstrated: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (“General Steel”) at 129. A pleading may be struck out if the Court is satisfied that, even if all the facts set out in the pleading were proven, those facts would not establish the essential ingredients of a cause of action: see Hubbuck at 91 and 94, and Judicial Commission of NSW, Civil Trials Bench Book, (at 15 November 2018) [2-6940].

3. [141]

   The descriptions for the test for the absence of a cause of action were set out in General Steel as follows (at 129):

   1. (1)

      the claim was “so obviously untenable that it cannot possibly succeed”;

   2. (2)

      “manifestly groundless”;

   3. (3)

      “so manifestly faulty that it does not admit of argument”;

   4. (4)

      “discloses a case which the Court is satisfied cannot succeed”;

   5. (5)

      “under no possibility can there be a good cause of action”; and

   6. (6)

      “be manifest to allow [the pleadings] to stand would involve useless expense”.

4. [142]

   Similarly, the Court may strike out pleadings in plain and obvious cases: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946.

5. [143]

   The Court may strike out pleadings where, for example, a claim is:

   1. (1)

      doomed to fail (Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392); or

   2. (2)

      untenable in the admitted (pleaded) circumstances: Charles Forte Investments Ltd v Amanda [1964] Ch 240; Australian Mid-Eastern Club Ltd v Elbakht (1988) 13 NSWLR 697.

6. [144]

   The apparent improbability of impugned allegations of fact does not justify the exercise of the power to strike out a pleading, and any attempt to look into those matters could involve a premature trial of the proceedings: Remmington v Scoles [1897] 2 Ch 1 at 7.

7. [145]

   A pleading may also be struck out if it is embarrassing pursuant to r 14.28(b). A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70; Gunns Ltd v Marr [2005] VSC 251 at [14]-[15]; McGuirk v University of New South Wales [2009] NSWSC 1424 at [30].

Principles in relation to Limitation Periods

1. [146]

   Section 52 deals with the effect of disability on a limitation period. The effect of s 52(1)(e) of the Limitation Act is that a plaintiff has an unbroken period of three years from when he or she last ceased to be under a disability. In Shortland Electricity v O’Connor [1999] NSWCA 87, Shellar JA (with whom Beazley and Fitzgerald JJA agreed) held the following in regard to that provision (at [13]):

2. [147]

   In Kotulski v Attard [1981] 1 NSWLR 115, Slattery J considered the definition of “substantially impeded” in s 11(3) of the Limitation Act as follows (at 117):

3. [148]

   That definition was considered in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 (“Guthrie”) by Campbell JA (with whom Basten JA and Handley AJA agreed). His Honour held (at [144]):

4. [149]

   His Honour then went on to consider the meaning of “substantially” in the context of a number of cases, and held the following (at [151]):

5. [150]

   Campbell JA further held the following with respect to s 11(3)(b) and the meaning of managing one’s affairs in relation to a cause of action (at [140]):

6. [151]

   Handley JA held in Guthrie that (at [178]):

7. [152]

   As to the question of incarceration, G E Dal Pont noted that the phrase “restraint of his or her person” in s 11(3)(b)(ii) of the Limitation Act can encompass incarceration, although it does not compel a conclusion that incarceration amounts to a relevant disability capable of suspending a limitation period (G E Dal Pont, Law of Limitation (LexisNexis Butterworths, 2016) 286 at [14.17]).

8. [153]

   In Karaagac v GRA Insurance Ltd (Unreported, Court of Appeal of New South Wales, Meagher JA, 26 April 1989), Meagher JA held (at 2):

9. [154]

   In the same case, Clarke JA held that “mere impediment is not sufficient” and that a plaintiff must show they have been “substantially impeded” (at 4).

10. [155]

    As noted above, s 56 of the Limitation Act deals with the limitation period with respect to “a cause of action for relief from the consequences of a mistake”. The phrase “relief from the consequences of a mistake” has been interpreted as a meaning that a plaintiff’s cause of action will be one where “mistake is an essential ingredient of the cause of action” (Phillips-Higgins v Harper [1954] 1 QB 411 at 419), and the “gist of the cause of action” (Hillebrand at [48]).

11. [156]

    For example, in Hillebrand, Austin J refused to apply s 56 where the defendant wrongfully sold portions of the plaintiff’s land as a result of alleged mistake because the ‘gist’ of the cause of action was negligence rather than mistake (at [48]).

CONSIDERATION

1. [157]

   At the outset, it should be noted that as this is a strike out application, the pleadings in the second ASOC are paramount in the consideration. Where appropriate, the Court may look beyond a mere reading of the pleadings to examine the evidence of a party for the purpose of explaining or elaborating upon the pleadings or particulars thereof: see UCPR r 14.28(2); Judicial Commission of NSW, Civil Trials Bench Book, (at 15 November 2018) [2-6940]; and Rainy v Bravo (1872) LR 4 PC 287 at 296-297. In this matter, Mr Renshaw adduced evidence on the issue arising under s 52 of the Limitation Act. There was no objection to that course and it is appropriate, in my view, to take that material into account in assessing Mr Renshaw’s reliance upon that provision.

Claim in Contract

1. [158]

   I consider that Mr Renshaw’s claim in contract is doomed to fail. As to the existence of a contract, the following passage from McCallum J in Clemett (referring to Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5) is relevant (at [7]):

2. [159]

   That reasoning is applicable in the present context and, with respect, I consider it is correct. Accordingly, the terms of the contract are to be found in the Rules.

3. [160]

   Mr Renshaw did not plead how he was entitled to the winnings pursuant to the Rules. It was simply pleaded that Mr Renshaw paid his entry fee, completed the ticket pursuant to the “Contract” and that the defendants breached the contract by failing to pay Mr Renshaw the unclaimed prize.

4. [161]

   Mr Renshaw was not able to produce a winning ticket, which was required by Rule 14(e) and (h). Rule 14(e) required a prize claim form, the prize winning ticket and “such other evidence as the General Manager may… require”. The relevant information required on the prize claim form is stipulated in Rule 14(h), which required, inter alia, the ticket serial number, the numbers included on the relevant numbered line on the ticket and the ticket itself. Mr Renshaw did not have the winning ticket and, therefore, he could not have satisfied the requirements of Rule 14(e) or (h). The prize claim form lodged by Mr Renshaw on 31 May 2017 (which was out of time pursuant to reg 4 of the Public Lotteries Regulation) did not meet the requirements of Rule 14(h) because it did not attach the ticket nor nominate the ticket serial number. Under the heading “Lottery Ticket Number”, it stated:

5. [162]

   The defendants’ concessions as to possibilities within the Rules of what can be facilitated if a ticket was destroyed were detailed at [84]-[86] above. In this respect, the General Manager’s absolute discretion to pay prizes under the Rules is relevant.

6. [163]

   Mr Renshaw did not plead reliance on the General Manager’s absolute discretion to pay prizes. Even if Mr Renshaw pleaded such reliance, Rule 14(i) provides as follows:

7. [164]

   I accept the submission of the defendants that the terms of the Rules should be given full force: see Murphy v Zamonex (at 452-453 (per Giles J). In that light, the absolute discretion of the General Manager arose when an entry into the draw, which was entitled to a prize was discovered after the payment of prizes.

8. [165]

   I accept that all the prize money in relation to Draw 188 has not been paid, because the prize money claimed by Mr Renshaw was unclaimed. In fact, Mr Renshaw pleaded that he was always a provisional winner from the time when he validated the ticket in 1997 and, therefore, it could not be validly contended that his entry could be “discovered after payment of prizes”. In any event, I accept the defendants’ submission that, even if any exercise of the General Manager’s absolute discretion was reviewable, there was no allegation or basis of unreasonableness or irrationality of the General Manager in dealing with claims made by Mr Renshaw.

9. [166]

   I do not accept that any re-pleading of the claim in contract would rectify the cause of action in contract.

Claim in Misleading and Deceptive Conduct and Negligence

1. [167]

   As to the claims for misleading or deceptive conduct and negligence, the relevant “loss” would have been caused upon the disposal or destruction of the ticket, which deprived Mr Renshaw from lodging a claim in accordance with the Rules. As discussed above, the Rules required the production of the ticket to claim the prize and the act of throwing out the ticket, thereby depriving Mr Renshaw of his ability to produce the ticket, occurred in 1997. Therefore, the crystallisation of the loss claimed by Mr Renshaw occurred at that time.

2. [168]

   The defendants’ only contention to strike out the paragraphs relating to misleading or deceptive conduct and negligence was that those claims were time barred by the Limitation Act (with respect to negligence) or the TPA and the FTA (with respect to misleading or deceptive conduct). As will be discussed in greater detail at [220]-[221], the defendants did not argue any reason other than being time barred as to why no reasonable cause of action had been disclosed in Mr Renshaw’s pleadings in those respects. As will be later discussed, the claim for misleading or deceptive conduct should not be struck out on the basis it is time barred under s 82 of the TPA and s 68 of the FTA.

Breach of Trust

1. [169]

   I accept the submissions of the defendants that the second ASOC disclosed no allegations of facts or circumstances which could give rise to either an express, constructive or resulting trust in favour of Mr Renshaw; and, further, that the claim for breach of trust rose no higher than the claim for breach of contract.

2. [170]

   I also accept the submission of the defendants (as extracted above at [98]) that the Rules or relevant legislation do not create a trust over the prize monies. Even if the prize fund in which the unclaimed prize was held was a purpose trust, Mr Renshaw would not be able to show, as discussed above, that he was an eligible prize winner under the Rules and therefore no funds were held on trust for him.

Claim in Restitution

1. [171]

   I accept the defendants’ submission that the claim in restitution is embarrassing because it is inconsistent with the contract. The contract, as governed by the Rules, stipulated that money was to be paid on certain conditions. As already discussed, those conditions were not met by Mr Renshaw.

2. [172]

   Mr Renshaw’s claim for “money had and received” was difficult to understand because such a claim would have required money (or another benefit) to have been conferred by a plaintiff to a defendant. The pleading is embarrassing because the amount of the unclaimed prize was never paid by Mr Renshaw to the defendants, and therefore the defendants had not received the unclaimed prize from Mr Renshaw. Rather, the only money paid by Mr Renshaw was the price of the ticket being in the vicinity of $60.

3. [173]

   The pleading at para 47 of the second ASOC does not disclose a cause of action separate from the contractual claim.

The Limitation Period

1. [174]

   Given the conclusion I have reached regarding the claim in contract, it is strictly unnecessary to consider the limitation period in that respect. However, given the issue was fully argued I will briefly deal with that matter.

2. [175]

   I accept the submission of the defendants that Mr Renshaw’s causes of action in the second ASOC accrued in 1997.

3. [176]

   Save for the suspension of the limitation periods by virtue of ss 52 or 56 of the Limitation Act, the limitation periods that applied to the claims in contract, tort and trust were 6 years from that date pursuant to ss 14 and 48 of the Limitation Act. That meant that the limitation periods ended in 2003.

4. [177]

   No specific submissions were made by the defendants as to the limitation provisions applying to the claim in misleading or deceptive conduct although Sch 1 of the the TPA Amendment Act was included in a folder of authorities provided to the Court by the defendants. The relevant sections are s 82 of the TPA and s 68 of the FTA (extracted above at [76]-[77]).

5. [178]

   Like the claims in contract, tort and trust, the limitation period for misleading or deceptive conduct under the TPA was 6 years which ended in 2003.

6. [179]

   As to the claim for misleading or deceptive conduct under the FTA, the limitation period ended in 2000, being 3 years after the cause of action accrued, pursuant to s 68 of the FTA.

7. [180]

   Therefore, the relevant question becomes with respect to the claims in contract, tort, trust and restitution whether the limitation periods were suspended as a result of ss 52 and 56 of the Limitation Act. The claims under the TPA and FTA will require separate and discrete consideration.

8. [181]

   The question of whether the limitation periods were suspended under s 52 and whether Mr Renshaw’s claims were time barred comes down to an analysis of his pleadings in the second ASOC and the evidence brought to bear upon the question of disability for the purposes of s 11(3) of the Limitation Act. The relevant principles were discussed above at [146]-[154]. Section 56 raises difference considerations.

9. [182]

   The relevant disabilities to suspend the limitation period pursuant to s 52 were particularised in para 6 of the second ASOC as extracted at [15] above. The following analysis of the potential disabilities is based upon those pleadings.

10. [183]

    Relevantly, the first disability, being the workplace incident in 2000 which affected Mr Renshaw’s mobility, occurred within the relevant initial limitation period which began in 1997.

11. [184]

    Mr Renshaw pleaded that in 2001 he was diagnosed with Guillain-Barre syndrome, and that between 2001 and 2004 his mobility was compromised and he had to re-learn to walk. If the Court were to accept the pleadings, the limitation period would be suspended from 2004 for three years until 2007.

12. [185]

    Mr Renshaw pleaded that in 2007, he was involved in a motor accident which resulted in neck and back pain and an x-ray revealed reduced lung capacity. Even if the Court were to accept that this caused Mr Renshaw to be substantially impeded for a period longer than 28 days, the limitation period would be suspended until 2010.

13. [186]

    Mr Renshaw was incarcerated in 2008 which may have, upon the consideration of the authorities discussed above at [146]-[154], suspended the limitation period until 2011.

14. [187]

    It was also pleaded that in 2009, Mr Renshaw was diagnosed with squamous cell carcinoma which may have extended the limitation period until 2012.

15. [188]

    It was also pleaded that on 23 March 2010, Mr Renshaw had a seizure or mini-stroke. Assuming that Mr Renshaw was affected for 28 days straight after that event pursuant to s 11(3)(b), and that disability ceased to operate in 2010, s 52(1)(e) operated to extend the limitation period to 2013.

16. [189]

    As to the gap between 2013 and 3 November 2016 (“the gap”), when Mr Renshaw first filed his statement of claim, Mr Renshaw pleaded that:

    1. (1)

       he reported slow mental functioning following the workplace injury in 2000;

    2. (2)

       he has been diagnosed with dyslexia; and

    3. (3)

       he reported constant mental and physical exhaustion and fatigue since the workplace injury in 2000 and his diagnosis of Guillain-Barre syndrome in 2001.

17. [190]

    Of particular relevance is that the pleadings suggest that Mr Renshaw suffered those “disabilities” from at least 2000 to the time the second ASOC was filed.

18. [191]

    It is not conceivable that either dyslexia or slow mental functioning could fall within the definition of a disability in s 11(3)(b) of the Limitation Act because they could not, as pleaded, fall within the definition of substantially impeding Mr Renshaw. The question is therefore whether the pleading of constant exhaustion and fatigue for the period was “an impediment that has interfered with the ability of the plaintiff to commence action to warrant the suspension of the limitation period”: Guthrie at [152].

19. [192]

    The nature of the pleading is that Mr Renshaw suffered these infirmities for 18 years (since 2000 and including the gap) and they substantially impeded Mr Renshaw in the management of his affairs in relation to the causes of action. When expressed in that way, the pleadings are attended by some real uncertainty and imprecision and productive of doubt as to whether the pleadings may attract the operation of s 52, so as to bring the application within time. However, it is unnecessary to travel further down that road as, in this case, the plaintiff went into evidence as to the nature and extent of his disability in the period.

20. [193]

    As mentioned above at [157], r 14.28(2) permits the Court to receive evidence on the hearing of an application for strike out. Mr Renshaw was given the opportunity to file further evidence as to the question raised under s 52.

21. [194]

    Mr Renshaw’s evidence in his affidavit of 13 May 2017 was that he was a self-employed mini-crete operator from 2005 to 2008, and he maintained Family Court proceedings from 2008 to 2011. In his affidavit of 8 August 2017, he deposed that he conducted the mini-crete business throughout 2005 to 2006 until he went out of business, he spent much of 2008 and 2009 involved in family law proceedings, and indicated that the family law proceedings were continuing at least until 2011.

22. [195]

    The period through which Mr Renshaw worked and maintained Family Court proceedings fell within the period from 2000 and 2011, through which it was also pleaded Mr Renshaw suffered from exhaustion and fatigue.

23. [196]

    Applying what Handley JA found in Guthrie at [178], if Mr Renshaw was able to manage his affairs in relation to numerous other areas of his life (as in this case, work and other legal proceedings), a good explanation was required before it can be accepted that he was not able to manage his affairs in relation to a cause of action in this Court.

24. [197]

    No explanation was provided for the period 2005 to 2011 as to why Mr Renshaw could not manage his affairs in relation to the causes of action whilst he was able to manage other significant affairs or events in his life. On this basis, the disabilities pleaded by Mr Renshaw could not constitute a basis to extend time under s 52 of the Limitation Act for the period 2005 to 2011.

25. [198]

    Given that Mr Renshaw pleaded exhaustion and fatigue as a constant or unwavering condition attracting the operation of s 52 from his injury in 2000 through to the filing of the statement of claim, it follows, as a matter of logic and reason, that Mr Renshaw had the same capacity to manage his causes of action in the period as he did in the period 2005 to 2011.

26. [199]

    It must follow that, in the absence of some distinguishing factor over the period from 2005 to 2011 (and there was none), the disability of exhaustion and fatigue operating in the period could not ignite the operation of s 52 any more than it could in the earlier period and time could not be extended to the time on the basis of these pleaded disabilities to bring the statement of claim within time.

27. [200]

    Therefore, the pleading that constant exhaustion and fatigue was a disability falling within the definition of s 11(3)(b), namely, that the impairment substantially impeded Mr Renshaw from managing his affairs in relation to his causes of action, cannot be accepted.

28. [201]

    Further, the exhaustion was pleaded to be continuing at least until the time the second ASOC was filed, and Mr Renshaw in fact commenced these proceedings at that time, demonstrating that he was capable of managing his affairs in relation to his claims.

29. [202]

    The limitation period is not displaced as a result of s 56 of the Limitation Act. I accept the defendants’ submission that the second ASOC did not disclose any cause of action for relief from the consequences of a mistake of Mr Renshaw.

30. [203]

    It is clear from the authorities discussed above that the mistake must have been an “essential ingredient” or the “gist” of the cause of action. The pleaded mistake concerns a mistake, namely, as to whether the Granville newsagent made a mistake that Mr Renshaw was a provisional winner and whether, as a result, Mr Renshaw was mistaken as well (see paras 15-18 of the second ASOC). Mr Renshaw’s “mistake” of “second guessing” himself as to whether or not he was a provisional winner has nothing to do with the causes of action pleaded in the second ASOC. Indeed, on Mr Renshaw’s case, there was no mistake as to whether he was the provisional winner – he claimed that as soon as “Provisional Winner” appeared on the screen at the Granville newsagency, he was a winner and, thereby, entitled to the unclaimed prize. It is a contradictory argument to contend that Mr Renshaw was the provisional winner, but at the same time the cause of action was founded on a mistake that he was not the winner. That argument cannot be accepted.

31. [204]

    Although it was not pleaded, the mistake developed by Mr Renshaw in written submissions (discussed above at [134]), namely, the mistake of the Granville newsagent in visually verifying the ticket, cannot be said to be a mistake for the purposes of s 56. That mistake was neither an “essential ingredient” nor the “gist” of the causes of action in contract, negligence, misleading or deceptive conduct, breach of trust and restitution: see Hillebrand at [48], particularly with respect to negligence.

32. [205]

    In the result, Mr Renshaw’s claims for breach of contract, negligence and restitution are time barred by s 14 of the Limitation Act. The claim for breach of trust is time barred by s 48 of the Limitation Act. As will be discussed below, these causes of action were extinguished by s 63 of the Limitation Act.

33. [206]

    It should be noted that ss 52 and 56 of the Limitation Act do not operate with respect to the limitation periods in s 82 of the TPA and s 68 of the FTA.

34. [207]

    Mr Renshaw’s claim for misleading or deceptive conduct is time barred by s 82 of the TPA and s 68 of the FTA, noting that that the cause of action in relation to alleged misleading or deceptive conduct accrued in 1997, when it was pleaded that the representations were made, and there is an absence of provisions of the kind found in ss 52 and 56 in the TPA and FTA. However, there remains a question as to whether the plaintiff’s pleadings, in this respect, can be struck out in consequence of the provisions of the TPA or FTA, having regard to the nature of the pleadings in the defence of the defendants with respect to those claims.

35. [208]

    As earlier mentioned at [114] above, the defendants referred to authorities which it contended were relevant to the question of re-pleading as a result of the limitation defences. However, those authorities nor those submissions dealt with whether or not pleadings could be struck out as a result of the pleaded limitation defence within the amended defence.

36. [209]

    That question requires the consideration of the principles arising from the relevant authorities bearing upon the question.

37. [210]

    First, as to striking out on the basis of a limitation period, the pleadings in relation to a limitation defence are paramount: Commonwealth of Australia v Mewett (1995) 140 ALR 99 (“Mewett”) at 108; Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 (“Van Win”) at 487; Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1986] VR 408 (“Palmdale”) at 409-410.

38. [211]

    Secondly, some English and Victorian authorities suggest that a pleading cannot be struck out upon the basis that the defendant has an available defence under a statute of limitations, as opposed to a strike out motion predicated upon a basis that the claim brought by the plaintiff is frivolous or vexatious or an abuse of process.

39. [212]

    The Full Court of the Supreme Court of Victoria in Van Win, relying on Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 (“Ronex”), held (at 487):

40. [213]

    In Palmdale, Vincent J of the Supreme Court of Victoria held it was not “legitimate to infer from the fact that the relevant limitation period had expired prior to institution of proceedings that a claim is prima facie frivolous, vexatious or an abuse of the process of the Court” (at 409). His Honour then held (at 409-410):

41. [214]

    Thirdly, the judgment of the Full Federal Court of Australia in Mewett would suggest, however, that those authorities are distinguishable in the case of defences brought under the Limitation Act in contrast to the counterpart Victorian legislation, being the Limitation of Actions Act 1958 (Vic) (“the Victorian Act”).

42. [215]

    In Mewett, Cooper J (with whom Spender J agreed) by reference to Ronex observed that the Victorian Act operated as a “true statute of limitations” to bar a remedy but left the underlying cause of action unimpaired (at 104). The relevant provision of the Victorian Act in Mewett, namely, s 5(1A), was extracted in the judgment of Lindgren J as follows (at 118):

43. [216]

    In contrast to the Victorian Act, Cooper J noted that s 63 of the Limitation Act operated extinguish or “destroy” the underlying cause of action (at 108). His Honour then went on to consider the impact of Div 3 of the Limitation Act, which related to extension of time for personal injury cases (at 108):

44. [217]

    Hence, provided there is no opening for a party to extend the limitation period such as by virtue of s 52 of the Limitation Act (as has been found in this case), s 63 of the Limitation Act operates to extinguish the cause of action to which the Limitation Act applies: Mewett at 108.

45. [218]

    Applying the reasoning from the decision of Mewett, and putting aside for the moment other bases for striking out the claims, I consider that the claims in contract, tort, trust and restitution, governed as they are by the Limitation Act, may be struck out upon the bases that the defendants have pleaded a defence under the Act and ss 52 and 56 offer no extension or advancement of the limitation period and the claim is (based on the aforementioned analysis) out of time.

46. [219]

    The defendants clearly pleaded reliance upon ss 14 and 63 of the Limitation Act. As discussed above, it was available to Mr Renshaw to make an application that the limitation period was suspended pursuant to ss 52 and 56. Mr Renshaw was given the opportunity to amend his claim to facilitate applications as to suspending the limitation period in the second ASOC: see Mewett at 108. After ventilation of the issue of the suspension of time in the pleadings, the evidence and the submissions, as previously discussed, it was clear that the suspension of the limitation period was not available to Mr Renshaw. Mr Renshaw’s underlying causes of action in those claims were thereby extinguished by virtue of s 63.

47. [220]

    However, the position is different to the claim in misleading or deceptive conduct. Unlike s 63 of the Limitation Act, s 82 of the TPA and s 68 of the FTA do not extinguish the underlying cause of action in the case of a cause of action which is governed by statutory limitation, with true limitation provision, which affects a time bar per se. Similar to the Victorian Act, ss 82 and 68 operate as a bar to the remedy but leave the underlying cause of action unimpaired.

48. [221]

    Applying the principles in Mewett, Vin Wan, Ronex and Palmdale, it is not appropriate to strike out Mr Renshaw’s pleadings on misleading or deceptive conduct for the reason that the defendants have a limitation defence per se. Whilst the defendants pleaded reliance on the limitation periods pursuant to s 82 of the TPA and s 68 of the FTA, the defendants had not sought to strike out the claim for misleading and deceptive conduct upon the pleading that the claims were either an abuse of process or frivolous and vexatious. In fact, the defendants had not argued any reason other than the limitation defence as to why no reasonable cause of action has been disclosed in the second ASOC. In substance, the defendants approached the application to strike out the claims for misleading and deceptive conduct as if they fell under the Limitation Act without recognising the distinction between that Act and the TPA and FTA.

49. [222]

    Hence, the defendants have not demonstrated why the claim for misleading and deceptive conduct disclosed no reasonable cause of action per se pursuant to r 14.28(a) of the UCPR. The limitation periods in s 82 of the TPA and s 68 of the FTA do not extinguish the cause of action because, like the Victorian Act (s 5(1A) was not in the exact same terms but was in substance to the same effect), the provisions operate to bar the remedy but leave the underlying cause of action unimpaired: see Mewett at 104. The defendants’ failure to frame the strike out application as an abuse of process means that the pleadings should not be struck out notwithstanding the defendant’s limitation defence.

50. [223]

    In summary, the claims in contract, trust and restitution have been found to have no available cause of action and further, even if those causes of action were available they would be extinguished by virtue of ss 14 and 63 of the Limitation Act. In the result, the paragraphs relating to those claims will be struck out.

51. [224]

    As to the claim in negligence, no argument was put forward as to whether a cause of action existed, however, that cause of action is extinguished by ss 14 and 63 of the Limitation Act. Upon the above analysis regarding whether or not a claim can be struck out as a result of a limitation defence, this claim will be struck out.

52. [225]

    As to the claims for misleading and deceptive conduct under the TPA and FTA, no argument was put forward as to whether or not a cause of action existed as such. Because of the different nature of the limitation provisions applying to the claims, in that respect, those claims should not be struck out on the existing state of the pleadings.

53. [226]

    The authorities relied upon by the defendant in their submissions extracted at [114] above do not support the proposition, as contended by the defendants, that the Court should not grant leave to re-plead because the claim is doomed to fail as a result of the defendants’ pleaded limitation defence. That is because those cases, namely, Waller v Waller [2008] WASC 51; Waller v Waller [2009] WASCA 61; Bradley v Eagle Star Insurance Company Ltd [1989] AC 957 (at 963-964); Harris v Newcastle-upon-Tyne Health Authority [1989] 2 All ER 273 (at 277), all relate to the effect of limitation defences on pre-action discovery rather than strike out applications and, therefore, can be distinguished from the present matter.

54. [227]

    Nonetheless, as a result of the above considerations, leave should not be granted to re-plead the claims in contract, trust and restitution. The claim in contract was doomed to fail and the claim in trust rose no higher than the claim in contract. Further, no cause of action was disclosed for a claim in restitution. In any event, those claims were extinguished by the Limitation Act.

55. [228]

    Leave should not be granted to re-plead the claim in negligence because even though there was no argument as to whether there existed a cause of action, that cause of action is extinguished by the Limitation Act.

56. [229]

    I note, in that respect, in addition to the deficiencies noted in [227]-[228] above, Mr Renshaw was given ample opportunity to re-plead and amend his pleadings and to provide further evidence in support of his application.

57. [230]

    The question of leave to re-plead the claims in misleading and deceptive conduct is irrelevant at this juncture because those claims will not be struck out.

CONCLUSION

1. [231]

   In the circumstances, the claims in contract, negligence, trust and restitution must be struck out with no leave to re-plead.

2. [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).

3. [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.

4. [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.

DIRECTIONS

1. [235]

   The Court makes the following directions:

   1. (1)

      The defendants shall bring in short minutes of order reflecting this judgment on the amended notice of motion within 14 days.

   2. (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. (3)

      In the event that costs are pursued, then the short minutes of order shall convey that costs are reserved.

   4. (4)

      In the event that costs are reserved, the following program for submissions as to costs shall apply: