Renshaw v New South Wales Lotteries

1. [1]

   The plaintiff claims damages for alleged misleading and deceptive conduct of an agent of the first defendant. The plaintiff is unrepresented in the proceedings. He alleges that on 19 September 1997 he purchased an Oz Lotto ticket from Greenfield Park Newsagency, that he selected and marked numbers on this ticket and that he caused the newsagent to enter it electronically for Draw No 188. That draw took place on 23 September 1997. The winning numbers were 10, 24, 28, 34, 37 and 45.

2. [2]

   The plaintiff alleges that he had marked those numbers in one panel of the ticket he had purchased and entered. He says that he attended the first defendant’s Granville Railway Station Outlet on about 26 September 1997 and presented the ticket, whereupon the person serving him misleadingly and deceptively stated that the ticket had not won a prize and discarded it. The plaintiff claims that as a result he was unable to establish his entitlement to a one third share in the Division 1 prize and that he thereby suffered loss and damage.

3. [3]

   The Division 1 prize in Draw No 188 was $10 million. There were three winning tickets. Two ticketholders claimed their respective one third shares and were paid. No one has ever produced the third ticket. Following the draw the first defendant publicised the winning numbers and the name of the outlet from which the third ticket had been purchased, being Greenfield Park Newsagency. This information was given out in an endeavour to prompt the holder to claim his or her prize.

4. [4]

   Mr Stuart McNamara, who was formerly the first defendant’s Customer Services Manager for New South Wales, worked in the organisation from 1994 until mid-2012. He has deposed that since 23 September 1997 approximately 50 people have claimed that they had the winning ticket for this draw or have made enquiries about claiming the prize. On 24 July 2001 Channel 9 broadcast a television program concerning unclaimed lottery prizes. This gave further publicity to the failure of the third winner to come forward. None of the 50 claimants, including the plaintiff, has produced either the ticket or evidence acceptable to the first defendant that any of them ever had it.

5. [5]

   The plaintiff’s earliest intimation to the first defendant that he claimed to have purchased the winning ticket was in a letter he sent on 27 December 2015, 18 years after the event. He commenced these proceedings on 3 November 2016. In earlier iterations of his statement of claim the plaintiff sought to recover the prize money or its equivalent upon causes of action in contract and/or negligence and upon the basis of an alleged trust and by way of restitution. On 14 December 2018 the plaintiff’s pleadings on all of those alternative bases were struck out by Walton J and leave to re-plead was refused: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954. Only the claim in damages for misleading and deceptive conduct remains to be determined.

6. [6]

   From 1 January 1997 until 31 March 2010 the first defendant was a State owned corporation established by s 5(1) of the New South Wales Lotteries Corporatisation Act 1996 (NSW). With effect from 1 April 2010 the first defendant has been a privately owned company. The unclaimed prize money with which this case is concerned is held in the NSW Consolidated Fund, in accordance with procedures that applied when the first defendant was under State ownership. The first defendant has no interest in unclaimed prize money held in the Consolidated Fund for lotteries conducted prior to 1 April 2010, including the prize money that is the subject of this case.

7. [7]

   The plaintiff joined the State of New South Wales as second defendant because it was a necessary party for the purposes of obtaining effective relief on his claim in contract. Now that that claim has been struck out the plaintiff has no case against the second defendant. He does not allege that the State engaged in misleading or deceptive conduct, nor is the State said to be vicariously liable for or knowingly concerned in the alleged misleading and deceptive conduct of the first defendant’s agent at the Granville Railway Station Outlet. So much of the statement of claim as remains on foot must be dismissed as against the second defendant.

The Oz Lotto lottery

1. [8]

   In 1997 and at all material times since then the first defendant has been licensed to conduct public lotteries in New South Wales, including Oz Lotto, under the Public Lotteries Act 1996 (NSW). Section 22 of that Act requires that the first defendant make rules for the conduct of its lotteries, subject to approval by the Minister for Gaming and Racing. Rules once approved and published take effect under s 23 of the Public Lotteries Act.

2. [9]

   As at September 1997 the Rules for Oz Lotto were those published in the NSW Gazette on 25 June 1997. They described a system under which agents were appointed by the first defendant and were provided with a terminal linked to the first defendant’s central processing computer. Entries in the lottery were made on approved “Entry Forms”, completed by participants who are referred to in the Rules as “Subscribers”. “Registered Subscribers” were those whose personal details were supplied to the first defendant and recorded on its computer database. The plaintiff was not a Registered Subscriber and no further reference need be made to that class of participants.

3. [10]

   Entry forms for Oz Lotto were printed with multiple panels each containing a matrix of numbers from 1 to 45. Subscribers completed the forms by selecting numbers within one or more of the panels. An entry fee of so much per panel was charged. According to the commonly used terminology of the lottery business, each completed panel was referred to as a “game” and participants were referred to as “players”. Entry forms were usually submitted to an agent but could be submitted by post. Upon submission to an agent the entry would be electronically registered through the agent’s terminal and would be validated by the terminal. The terminal was linked to the first defendant’s computer. All entry data would be transmitted to the computer and collated for the next draw. Draws were conducted weekly.

4. [11]

   It appears that when an entry had been registered it was marked in some fashion as validated and was returned to the player as his “Ticket”. The entire process of submitting an entry, paying for it and having it registered and validated was referred to in the common usage of the business as “purchasing a ticket”. Rule 5 provided as follows:

5. [12]

   For a “Standard Game” the player would mark any six numbers in one panel on the entry form or ticket. Multiple Standard Games could be played on a single entry form by choosing any six numbers in each of multiple panels. The entry price for the ticket would be calculated according to the number of games played.

6. [13]

   Rule 1(a) included the following definition:

7. [14]

   As described in Rule 4:

8. [15]

   It was open to a player to make a “Systems Entry”. This required that the player should mark his or her entry form to indicate what system was being selected. For System 7 the player could mark seven numbers in each panel completed on the entry form; for System 8 the player could mark eight numbers – and so on up to System 18. Rule 9(g) contained a table showing the number of Standard Game panels that was equivalent to a single panel in which seven numbers were selected in a System 7 game. The table similarly showed the equivalence of a single panel marked with eight numbers, nine numbers and so on up to 18. The table stated the subscription price per panel under each of the Systems. The more numbers marked, increasing from seven up to 18, the greater the chance that the six winning numbers would be amongst them. The chances of winning increased exponentially with each additional number selected. Accordingly, the subscription price increased exponentially from a System 7 to a System 8 game, from a System 8 to a System 9 game – and so on.

9. [16]

   Upon submitting an entry form a player could refrain from marking any numbers and could instruct the agent to complete an Automatic Entry for one or more games. If this instruction was given, the agent would register the entry form through the terminal in a way that would cause the first defendant’s computer to generate a selection of six numbers automatically. This was referred to in the vernacular of the business as an “Auto Pick” entry.

The pleadings

1. [17]

   The operative pleading is the plaintiff’s Fifth Amended Statement of Claim (“the statement of claim”). The relevant paragraphs are as follows:

2. [18]

   In its defence filed 12 June 2019 the first defendant denies that the plaintiff purchased a ticket as alleged in par 10 of the statement of claim. The first defendant denies the allegation in par 13, that information regarding a ticket held by the plaintiff was provided from the first defendant’s central processing computer to the terminal at the Granville Railway Station Outlet on a date after the draw. In proof of par 15 of the statement of claim the plaintiff has deposed that 26 September 1997 was the date, during the week following Draw No 188, upon which he presented a ticket at the Granville Outlet. The first defendant denies that on that date a ticket belonging to the plaintiff was inserted in the computer linked terminal at the Granville Outlet or that there was a screen display of the words “Provisional Winner”. The first defendant says that computer linked terminals did not display such a message. The first defendant denies that the plaintiff gained any understanding such as he alleges in pars 16 and 18 as a result of anything that took place at the Granville Outlet.

3. [19]

   The time limit for presenting a winning ticket to claim a prize was eight days from the date of the draw, pursuant to r 14(f) of the Rules of Oz Lotto. Nevertheless the first defendant has a commercial practice of paying prizes to any player who can demonstrate that he or she had a winning ticket but lost it. That practice had been adopted before September 1997 and it continued after that date. The Public Lotteries Regulation 2016 contains the following clause:

4. [20]

   The first defendant has pleaded in par 37 of its defence that the plaintiff’s claim for misleading and deceptive conduct is statute barred. Taking the plaintiff’s case at its highest the first defendant says that if any misrepresentation was made to the plaintiff by the Granville agent on 26 September 1997 or if any action by that agent caused him to lose possession of his ticket, then any damage was suffered immediately in that the plaintiff was deprived of essential evidence of his entitlement to the prize. The first defendant says that the time within which an action for damages would have to have been brought under s 82 of the Trade Practices Act 1970 (Cth) or under s 68 of the Fair Trading Act 1987 (NSW) expired three years later; that is, by 26 September 2000. If that is correct then the plaintiff commenced these proceedings more than 16 years out of time.

5. [21]

   The issues to be decided, therefore, are these:

   1. (1)

      Did the plaintiff purchase the third winning ticket at Greenfield Park Newsagency on 19 September 1997?

   2. (2)

      Did the plaintiff present the third winning ticket at Granville Railway Station Outlet on 26 September 1997 and did the first defendant’s agent then tell him that it was not a winning ticket and discard the ticket?

   3. (3)

      If the first defendant was guilty of misleading and deceptive conduct in relation to the plaintiff’s presentation of his ticket on 26 September 1997 (or in any other respect), did any cause of action for that conduct accrue on 26 September 1997 and become statute barred three years later?

Evidence about the plaintiff’s purchase of an Oz Lotto ticket

1. [22]

   The plaintiff deposed that on 19 September 1997 between 2:00 pm and 3:00 pm he completed an entry form as described in the particulars to par 10 of the statement of claim, submitted that entry to the agent at Greenfield Park Newsagency and purchased a ticket accordingly. This evidence is reiterated in a further affidavit, of 30 January 2019, at pars 117-139. In pars 140-170 and 179-180 of the latter affidavit the plaintiff described in detail a protracted exchange between himself and the person serving him at Greenfield Park. He said that this conversation led to him playing 6 Standard Games, 6 System 7 Games and either 6, 9 or 10 Auto Pick Games. In pars 176-177 the plaintiff nominated a contemporaneous “publicly notified motorcycle show/event” that he says has assisted him to fix the time of purchase of his ticket as between 2:20 pm and 2:45 pm on 19 September 1997.

2. [23]

   Affidavit evidence from Mr McNamara satisfies me that the company’s records of processing Oz Lotto entries from 1997 are no longer accessible electronically. This has come about through successive changes of computer hardware and software systems over the intervening years and because the company’s NSW lotteries data centre was closed in July 2012. From the latter date electronic record keeping has been managed from a location in Queensland and software that was in use in New South Wales in the 1990s has been superseded. However Mr McNamara has been able to review hard copy records that were generated by the previous software prior to its decommissioning. The hard copy records include a listing of all Oz Lotto entries processed through the first defendant’s terminal at Greenfield Park Newsagency on 19 September 1997 between 1:00 pm and 3:00 pm. This listing is a confidential exhibit to Mr McNamara’s affidavit of 17 October 2017, marked “SJM-2”.

3. [24]

   Throughout the proceedings the plaintiff has persistently asserted, without any evidentiary basis, that the first defendant must have within its records a “counterpart Winning Ticket” and a “Winning Ticket Data file”. The first defendant has not produced any document of that name or description. I am satisfied on the evidence of Mr McNamara, and of Ms Lawrence referred to below, that the first defendant has no records of the unclaimed winning ticket other than the documents annexed to their respective affidavits.

4. [25]

   I accept Mr McNamara’s evidence that the first defendant’s computer records relating to any draw for which a significant prize remains unclaimed are highly confidential. Mr McNamara has deposed that within the first defendant only a very restricted category of staff are permitted to inspect such records and that there is close administrative and technical oversight of access. These hard copy records are held in a secure safe at the first defendant’s Queensland premises. The limitation of access, to senior members of staff only, is maintained in order to preserve the integrity of the prize management and payment process. Release of information from these records could provide a recipient with information of the kind that the first defendant would need to consider in order to distinguish a true winner from false claimants. The reasons advanced by Mr McNamara in his affidavit justify the Court receiving Ex SJM-2 confidentially; that is, as an exhibit not open for inspection, as part of the Court record, to anyone other than the parties.

5. [26]

   In deciding to admit Ex SJM-2 on that basis, I have had regard to the following statements of Lord Dyson JSC in Al Rawi v Security Service [2012] 1 AC 531; [2011] UKCE 34 (citations omitted):

6. [27]

   By receiving Ex SJM-2 confidentially and not permitting public inspection of it, the open justice principle is departed from to a slight degree. These reasons contain a description of the nature and effect of the document. Only its detailed contents are withheld. The requirements of open justice must give way to that limited extent in order to protect the first defendant against suffering the loss of a legitimate commercial confidence in the course of endeavouring to defend itself. If that were allowed to occur the Court would collaterally inflict damage on the first defendant in the course of administering justice. This is analogous to the situation where the Court restricts disclosure of discovered documents in intellectual property cases, to ensure that the procedure adopted does not deny a party the very right that the Court is required to rule upon and to uphold if found proven.

7. [28]

   The second of Lord Dyson JSC’s fundamental principles of a common law trial, concerning natural justice and the right of each party to know the case against him or her and the evidence on which it is based, has not been to any extent qualified with respect to Ex SJM-2. During 2017 the first defendant permitted the plaintiff and counsel who was then retained for him to inspect this exhibit, solely for the purposes of the litigation. Despite access being granted the plaintiff has deposed that, while his counsel viewed the document, he did not. The requirements of natural justice are satisfied by the opportunity being afforded, whether or not it is fully availed of.

8. [29]

   On the basis of Mr McNamara’s explanation of Ex SJM-2 in his affidavit and from my own examination of it I am satisfied of its authenticity. The plaintiff did not challenge the genuineness or reliability of the document when he cross-examined Mr McNamara. In his affidavit filed 30 January 2019 the plaintiff deposed that his former counsel, who had inspected Ex SJM-2, “had been given misleading information by the defendants”. This bald and general assertion is unsupported by evidence or particulars. I do not accept it.

9. [30]

   The data recorded on Ex SJM-2 includes the serial number of each ticket sold and processed through Greenfield Park Newsagency on 19 September 1997 between 1:00 pm and 3:00 pm. Each serial number is a 16 character alphanumeric combination. The data also includes full detail of the numbers selected in each game panel that was played on each ticket. The numbers are shown with the symbol “+” between them and each group of numbers for a panel is separated from the group for the next panel by the symbol “/”. By comparing this data with the publicly announced winning numbers of Draw No 188 I am satisfied that the winning ticket was not purchased at Greenfield Park Newsagency on 19 September 1997 between 1:00 pm and 3:00 pm. On that evidence, alone, I could not be satisfied on the balance of probabilities that the plaintiff purchased the winning ticket.

10. [31]

    Even without the direct rebuttal provided by Ex SJM-2 I would not be persuaded to accept the plaintiff’s claimed recollection of having purchased a ticket with the winning numbers in Draw No 188. He first asserted such a recollection in a letter of 27 December 2015, more than 18 years after the six winning numbers and the location from which the third winning ticket was purchased had been announced publicly. The plaintiff claims that the numbers he selected were memorable because they were amongst a pool of numbers comprising birthdates and ages of some of his family members and certain street address numbers with which he was familiar. This does not make the evidence any more believable. I do not accept that after nearly two decades the plaintiff could recall whose birth dates, ages and/or street addresses he selected and/or that he used six particular numbers in a single game so as to have a winning combination.

11. [32]

    Reference has been made to the plaintiff’s affidavit sworn 30 January 2019 in which he set out an extensive conversation with the attendant at the Greenfield Park Newsagency at the time of the alleged ticket purchase. It is highly improbable that the plaintiff could genuinely remember these details when first deposed to more than 21 years after the event. In some passages of his affidavits the plaintiff has deposed to incidental surrounding circumstances of the purchase and of the subsequent presentation of the ticket. These specifics are advanced in an endeavour to lend credence to his claimed powers of recall. They include such matters as who accompanied him to buy the ticket, what motor vehicle he travelled in, where he went after leaving the Greenfield Park Newsagency, why he was in a hurry to complete his entry and so on. In a letter to the first defendant dated 7 January 2016 the plaintiff purported to remember that when he purchased the ticket he also bought “two cokes and chocolates”. In a letter of 5 April 2016 he said he recalled the shirt that he was wearing on the day. There is no corroboration of any of these details. His claim to remember them is just as implausible as his claimed recollection of the central facts of the purchase and subsequent presentation of the ticket. His endeavour to bolster his credibility by deposing to highly improbable memories of peripheral details has the opposite effect, in my view.

12. [33]

    After sending his letter of 27 December 2015 the plaintiff lodged with the first defendant a Lost/Damaged Ticket Search form dated 4 January 2016. This was a printed pro forma issued by the first defendant requiring the applicant to specify the date and time of purchase of the lost ticket and to tick or otherwise complete various boxes to identify particulars of the games played. On this form the plaintiff did not nominate any date or time of purchase and did not complete any of the boxes regarding games played. With respect to the latter he made a marginal note in handwriting in the following terms (all errors in quotations from documents completed by the plaintiff are as in the original):

13. [34]

    The plaintiff did not mark the appropriate box to indicate that he had played any Auto Pick games or, if so, the number of such games. In that part of the form that enquired whether the applicant had played “a System entry” and required particulars of any System games played, the plaintiff did not complete the available boxes but instead wrote the following:

14. [35]

    The explicit uncertainty in the above notations was again evident in a further letter from the plaintiff to the first defendant dated 7 January 2016. In this the plaintiff set out birthdates and ages of persons whom he said were “of interest to me” and said:

15. [36]

    On 20 January 2016 the plaintiff lodged a second search form. In the boxes where the date of purchase was to be inserted and adjacent to those boxes he wrote the following:

16. [37]

    On this second search form of 20 January 2016 the plaintiff specified the number of games played as 18 and added the following note:

17. [38]

    On 15 February 2016 the plaintiff lodged a third search form, this time nominating either 5 September or 12 September 1997 as the date of purchase and 2:25 pm to 2:45 pm as the time interval. He again claimed to have played 18 games of which six were System 7. Following this there were further search forms lodged on 23 February 2016, 30 May 2016, 29 August 2016 and 30 August 2016. The plaintiff wrote to the first defendant numerous letters between January and August 2016. His first claim to have played any Auto Pick games appears to have been in a letter of 5 April 2016. Various combinations of either 9 or 10 Auto Pick games, together with Standard and System 7 Games, were suggested in search forms after that date.

18. [39]

    In his 2016 correspondence and search forms the plaintiff was expressly uncertain about the particulars of the ticket he claimed to have purchased. His uncertainty became increasingly apparent through the variations in his purported recollections of the date and time of purchase and of the games he had played. The uncertainty reflects an absence of genuine recollection. In his search forms of August 2016 the plaintiff settled upon 19 September 1997 and 2:00 pm to 3:00 pm as the date and time of purchase. He has remained firm on that date and time in his pleading and in his affidavits. In the course of the proceedings he has widened the possibilities of the games played, to include either 6, 9 or 10 Auto Pick Games.

19. [40]

    It is sufficient to dispose of the plaintiff’s claim that his evidence does not satisfy me on the balance of probabilities that he purchased any ticket in Draw No 188. Exhibit SJM-2 goes further and establishes affirmatively that the winning ticket was not purchased on the date and during the time interval when the plaintiff now says he bought it. If there was any misleading or deceptive conduct on the part of the first defendant’s Granville agent on or about 26 September 1997 I am not satisfied on the balance of probabilities that it caused the plaintiff any loss or damage of the kind he alleges. That is because I am not satisfied that he ever had a ticket upon which he could have established entitlement to a prize.

Evidence about the plaintiff’s presentation of his ticket

1. [41]

   The plaintiff first gave his first account of the alleged presentation of the winning ticket in his letter of 27 December 2015. He wrote as follows:

2. [42]

   A second version was given in the plaintiff’s letter to the first defendant dated 5 April 2016, as follows:

3. [43]

   In his affidavit of 30 January 2019 at pars 45-54 the plaintiff gave a third version of having presented a ticket at the Granville Railway Station Outlet. He deposed as follows (referring to himself in the third person, as he has done in most of his affidavits):

4. [44]

   In the course of submissions at the conclusion of the hearing on 20 March 2020 the plaintiff gave from the bar table yet another description of what occurred upon presentation of his ticket at Granville, in these terms:

5. [45]

   A version similar to this was given in the plaintiff’s affidavit filed in Court on 1 November 2019, at pars 14-26. There the plaintiff added that that the owner of the Granville Outlet and his employee remained locked in their office until railway security staff attended. They demanded that the plaintiff immediately leave and threatened to call the police if he did not.

6. [46]

   In none of the plaintiff’s accounts of this alleged incident at Granville has he stated what caused him to present his ticket at the agency. He has not said whether he had heard the announcement of the winning numbers or, if so, whether he recognised them as the numbers he had marked. On the other hand, nor has he said that he presented his ticket without any expectation, for example, as a matter of routine, or perhaps because he did not know any other way to find out if he had won or not.

7. [47]

   There is an inherent contradiction in the plaintiff’s claim that when he saw the terminal respond to his ticket by displaying the words “Provisional Winner” he did not know what these words meant, yet he became extremely agitated. On his first version of the event, the plaintiff’s agitation took the form of screaming obscenities at the agent and leaving the premises “screaming the whole way”. On the second version he simply walked away and stopped briefly near a phone “in a fluster of what to do”. The third version, in an affidavit, is that he simply questioned the agent before leaving. In the fourth version, given from the bar table and in a further affidavit, it was the agent who screamed at the plaintiff and he reacted by diving across the counter to try to retrieve his ticket, followed by the agent sheltering in a locked office.

8. [48]

   All of the plaintiff’s accounts of having presented his ticket are highly implausible on the face of them. The variations from one purported recollection to the next exacerbate their unreliability. On any of these versions the plaintiff claims to have reacted in a manner consistent with having understood that the words “Provisional Winner” were very significant. Yet he gives no evidence of having immediately checked the public announcement of the winning numbers, at a time when his recollection of the games played and of the date and time of purchase of his ticket (if this ever occurred) would have been fresh. It is beyond dispute that he did not provide any information to the first defendant about the ticket he had purchased and presented, or tell the first defendant about the words “Provisional Winner” that had caused him such excitement, for another 18 years.

9. [49]

   The first defendant did not call any witness who had worked in the Granville Railway Station Outlet in 1997 to respond to the plaintiff’s evidence. I draw no inference from that, having regard to the passage of so many years from the date of the alleged event until the plaintiff notified the first defendant of his claims in his letter of 27 December 2015.

10. [50]

    Mr McNamara deposed as follows in his affidavit of 17 January 2018:

11. [51]

    Annexed to one of the plaintiff’s affidavits is a deposition from a Ms Forster who said that she saw the words “Provisional Winner” on a screen in about October 2000 when she presented a ticket in a “Jackpot Lottery” that was eligible for a prize of $10,000. This was three years after the events with which this case is concerned and in a different lottery. It does not support the evidence of the plaintiff about having seen these words displayed at the Granville Outlet and it does not rebut Mr McNamara. The plaintiff also deposed that he has seen these words displayed on terminal screens on other unspecified occasions in relation to tickets on which prizes of over $1,000 have been won. In the absence of particulars of these occurrences I can place no weight on this evidence.

12. [52]

    The improbability of the words “Provisional Winner” having been displayed is reinforced by Mr McNamara’s evidence that the system was not configured to do this. The plaintiff’s claim that these words came up on the screen is integrally bound up with his varying accounts of agitation and confrontation with the agent when the latter discarded his ticket. I am not satisfied on the balance of probabilities that any of those events occurred. The fact that the evidence does not satisfy me that the plaintiff purchased any ticket in this draw, let alone the winning ticket, adds to my doubt that events such as he describes occurred at Granville on or about 26 September 1997.

Accrual of cause of action for misleading and deceptive conduct

1. [53]

   The Oz Lotto Rules included the following:

2. [54]

   Proof of damage is essential to the plaintiff’s cause of action under s 82 of the Trade Practices Act and s 68 of the Fair Trading Act. The misrepresentations alleged to constitute misleading and deceptive conduct by the first defendant fall into two groups. Those pleaded in subpars (b)-(i) of par 33 of the statement of claim are all expressed in prospective terms, directed to the manner in which the first defendant would conduct Oz Lotto. The plaintiff could only prove that damage was caused by such representations through the mechanism of reliance. He would have to establish that he acted to his detriment on the faith of one or more representations (b)-(i). The plaintiff has not pleaded, let alone proved, that he relied upon any of these matters or that his doing so caused him loss. If he had attempted to address this essential part of his case, the only act that he could conceivably claim to have undertaken on the faith of prospective representations such as (b)-(i) would have been his purchase of a ticket and participation in the lottery. The damage suffered would be the price of the ticket and the cause of action would have accrued, on the plaintiff’s evidence at its highest, on 19 September 1997.

3. [55]

   The other two alleged misrepresentations, subpars (j) and (k) of par 33, do not concern the manner in which Oz Lotto would be conducted as a future matter. Subparagraph (j) is a representation that the plaintiff was “a Provisional Winner” of Draw No 188. The plaintiff’s allegation in par 34 that this was “not correct” is contradictory of the whole tenor of his case. Subparagraph (j) must be disregarded. Subparagraph (k) alleges a misrepresentation that the plaintiff was not entitled to retain his ticket. This is said to have been conveyed on 26 September 1997 and to have concerned the then present status and entitlement of the plaintiff. His case on causation of damage with respect to subpar (k) is not clearly pleaded but his evidence was to the effect that the Granville agent discarded the ticket and left him without the means of proving his entitlement to a prize. I accept the first defendant’s submission that, if the elements of that cause of action were proved, damage would have been suffered immediately on 26 September 1997 and the cause of action for misleading and deceptive conduct would have accrued at that date.

Expiry of the limitation period

1. [56]

   As at September 1997 and continuing until 25 July 2001, s 82 of the Trade Practices Act was in these terms:

2. [57]

   By the Trade Practices Amendment Act (No 1) 2001 (Cth) the limitation period was increased from three years to six years: see Sch 1, item 20. This extension applied to misleading and deceptive conduct engaged in on or after the commencement of the amendment, which was 28 days after the Act received Royal assent; that is, on or after 26 July 2001. The extension of time also applied to conduct that occurred before that date provided the previously applicable three year limitation period had not expired. The three year time limit for the plaintiff’s cause of action expired no later than 26 September 2000 and the amendment of 2001 has no application.

3. [58]

   As at September 1997 s 68 of the Fair Trading Act contained these subsections:

4. [59]

   The limitation period was enlarged from three years to six years by Sch 1, item 33 of the Fair Trading Amendment Act 2003 (NSW). This took effect from 25 August 2003. By item 43 of Sch 1 to the amending Act the following paragraphs were added to the Savings and Transitional Provisions schedule of the Fair Trading Act:

The first defendant’s records of the unclaimed winning ticket

1. [60]

   The first defendant read an affidavit of Debra Lawrence sworn 12 November 2019. Ms Lawrence is the current Customer Prize Manager for Lotteries within the holding company of the first defendant. She exhibited a group of confidential documents marked “DL-1”. As described Ex DL-1 includes a printout of one page of the results of a data search that was conducted using the first defendant’s then current software on 30 September 1998. The search was for all unclaimed Oz Lotto prizes of $200 or more that were at least 12 months old at the date the search was conducted. The search report includes particulars of the unclaimed winning ticket for Draw No 188. The 16 character alphanumeric serial number for the ticket is shown together with the numbers that were selected in the game or games played on that ticket.

2. [61]

   Also within Ex DL-1 is a printout of a record, accessed electronically in 1998, of transactions on the terminal at Greenfield Park Newsagency on a particular date in 1997 prior to the relevant draw on 23 September 1997. Ms Lawrence has deposed that this record shows the date and time of the purchase of the unclaimed winning ticket, identifiable on the record by a serial number and player-selected numbers that correspond with the serial number and player-selected numbers of the winning ticket as they appear on the unclaimed prizes search report referred to in the previous paragraph.

3. [62]

   Ms Lawrence confirmed Mr McNamara’s evidence that no data for entries in Draw No 188 remains stored and accessible in electronic form. She deposed that the hard copy records are “highly confidential” to the first defendant and are “not freely available to be inspected by staff of [the first defendant] unless a member of Audit or Legal along with a member of Prize Administration sign a register to receive access”. I accept that these records are confidential for the reasons Ms Lawrence has advanced. The first defendant has not permitted the plaintiff access to Ex DL-1 in view of its sensitivity and the obvious risk that the plaintiff, or some other person through him, would obtain from it information with which colour could be given to a false claim.

4. [63]

   At pars 10-12 of her affidavit Ms Lawrence described the critical content of Ex DL-1. I have paraphrased her description at [60] and [61]. The respects in which characteristics of the unclaimed winning ticket recorded in Ex DL-1 are said to differ from the particulars of the ticket that the plaintiff claims to have purchased are set out in a table prepared by the defendants by way of submission. A copy of the table was provided to the plaintiff. The substance of it is that the documents referred to at [60] and [61] affirmatively prove the following:

   1. (1)

      the unclaimed winning ticket was not sold in a time interval and on a date corresponding with the interval and date specified by the plaintiff;

   2. (2)

      the player who purchased the winning ticket did not play 6 Standard Games and 6 System 7 Games in combination with either 6, 9 or 10 Auto Pick Games;

   3. (3)

      whereas the plaintiff alleges that he paid an entry price of between $57 and $63, the price paid for the unclaimed winning ticket was not within that range.

5. [64]

   Through Ms Lawrence’s affidavit and the defendants’ table of comparison, the plaintiff was fully on notice of the nature and effect of what is in Ex DL-1, without being given the serial number itself or the date, time and other numerical particulars recorded therein. Possessed of this information, the plaintiff did not submit that he was under any handicap in presenting his case without inspection of the exhibit. He did not require that Ms Lawrence attend for cross-examination on her affidavit. He did not submit that there was any basis upon which the authenticity and substance of Ex DL-1 should be discounted. Having not cross-examined Ms Lawrence, nor put any questions to Mr McNamara on the subject of integrity of the records, no challenge to their veracity could have had any weight. The plaintiff did not submit that he needed access to the documents in Ex DL-1 in order to determine whether he should challenge their reliability and/or to carry out a cross examination or make submissions to that end. As the plaintiff had Ms Lawrence’s description of the documents and the defendants’ table of comparison by way of submissions, he was fully informed about the substance and effect of the documents, albeit not the numbers and particulars, and was in a position to decide whether he had a basis for challenging Ex DL-1.

6. [65]

   In these circumstances I considered whether Ex DL-1 should be admitted as an exhibit that would be not only confidential – in the sense of access being restricted to the parties and not publicly accessible on the Court record – but would be received as closed evidence, available to the Court and not accessible by the plaintiff. On consideration of the authorities I have concluded that such a procedure is not permissible, consistently with the second of Lord Dyson JSC’s fundamental principles of a common law trial.

7. [66]

   In HT v The Queen [2019] HCA 40 at Kiefel CJ, Bell and Keane JJ said (citations omitted):

8. [67]

   In subsequent passages of their Honours’ judgment reference was made to examples of how the content of procedural fairness may be modified to ensure practical justice, as follows (citations omitted):

9. [68]

   In circumstances where the plaintiff is conducting this case as a litigant in person, his entitlement to be informed of all the evidence tendered against him cannot be satisfied by an order restricting access to Ex DL-1 to a legal representative. The appointment by the Court of an independent solicitor to examine the document on behalf of the plaintiff would not achieve anything in the present case. In modifying a party’s right to know the evidence that is mounted against him or her, to accommodate the requirements of practical justice in a particular case, the courts have not gone so far as to permit documentary evidence to be received from one party and acted upon without the opponent being able to inspect it.

10. [69]

    In Al Rawi v Security Service at [63]-[64] Lord Dyson JSC referred to wardship cases and intellectual property proceedings as “classes of cases where a departure from the normal rule [of natural justice] may be justified for special reasons in the interests of justice”. At [64] his Lordship referred to the use of orders limiting inspection of confidential documents in intellectual property cases, where “full disclosure may not be possible if it would render the proceedings futile”. His Lordship said that such orders may have the effect of withholding inspection of documents “from one or more of the parties to the litigation at least in its initial stages” and continued as follows:

11. [70]

    In light of these statements of principle by courts of the highest authority I have determined that Ex DL-1 should not be received as an exhibit in the proceedings and accordingly I have not had any regard to it in arriving at my findings of fact. The exclusion of Ex DL-1 requires that I should also disregard Ms Lawrence’s secondary evidence of its contents and the first defendant’s comparison table referred to at [63]. I have made the findings of fact that are necessary to resolve the issues in the case without reliance upon this excluded material.

Lack of merit in the plaintiffs claim

1. [71]

   The plaintiff’s narrative taken as a whole is fantastic. He would have the Court believe that within a week of buying a lottery ticket in September 1997 he saw it register on the first defendant’s terminal as “Provisional Winner”; that he did not know what those words meant despite being able to read them, despite being excited by them at the time and despite having remembered them ever since; that 18 years later he realised the meaning of the words and that he was then able to recall the date and time of purchase of his ticket and the six numbers he had chosen out of 45, in one of either 18 or 21 or 22 games he had played all those years ago. This sequence of belated understanding and retained memory is contrary to common sense and contrary to all experience of human behaviour and recall. It is unbelievable. It could not be accepted without firm corroboration. None has been tendered. Where a prize of $3.3 million is at stake, fabrication, is the ready explanation for this impossible story having been told.

2. [72]

   The plaintiff must always have known that the only evidence he could tender of having bought and then presented the winning ticket would be his own assertion. It is an inescapable inference that he has been aware throughout the proceedings that he had no genuine recollection of either of the alleged events. At the very least the plaintiff ought reasonably to have known that his purported recollections were so uncertain and variable and were first asserted so long after the events were said to have occurred that he could not hope to satisfy the Court about these matters.

3. [73]

   The time limit for commencing proceedings on the plaintiff’s putative cause of action had expired 16 years before he filed his statement of claim. The defences filed on 21 December 2016 and 20 January 2017, respectively, gave prompt notice that expiry of time was relied upon. Both defendants pleaded limitation defences in answer to each successive amendment of the plaintiff’s case. In the decision cited at [5] above Walton J found all the plaintiff’s causes of action statute barred but did not consider that the misleading and deceptive conduct claim could be struck out on that basis. Walton J made an order for costs in respect of part of the proceedings. Judgment will now be entered for the defendants and it will be ordered that the plaintiff pay the defendants’ costs of all aspects of the proceedings that are not already covered by previous costs orders.

4. [74]

   Not only have the proceedings been prosecuted by the plaintiff without any reasonable evidentiary basis, they have been conducted by him wastefully and inefficiently. He has amended his statement of claim five times and made several additional applications for amendment. The plaintiff has issued more than 45 notices to produce and subpoenas, the great majority of which could not have served any useful forensic purpose. The 19 affidavits sworn, filed and served by the plaintiff are repetitive. Annexed to a number of them are voluminous documents of no account in the proceedings, such as United States patents for lottery devices and systems, a 55 page annual report of International Lottery and Totalizator Systems Inc to the United States Securities and Exchange Commission and sets of rules for lotteries other than Oz Lotto.

5. [75]

   On 5 April 2019 the defendants offered to settle the litigation on terms that they would not enforce an order for costs provided the plaintiff would release them and undertake not to commence any further proceedings. The plaintiff’s response of 17 April 2019 included the following:

6. [76]

   If the plaintiff had been legally represented when he first considered commencement of these proceedings, his allegations would have been filtered through qualified and informed consideration. Practising lawyers not only have the expertise to discourage clients from litigating manifestly unsustainable claims; they also owe to the Court a duty not to aid the pursuit of such cases. The issue of expiry of time would have been recognized from the outset by any legal advisor. By acting in person, by rejecting such advice as he was offered and by being impecunious the plaintiff has evaded all the usual restraints upon prosecution of a futile claim. He has put the defendants to great expense and squandered significant time and capacity of the Court. It is regrettable that it was not possible to bring this to an end earlier and in a more peremptory fashion.

7. [77]

   During 2017 to 2019 pro bono advice and representation was made available to the plaintiff through the goodwill of the New South Wales Bar Association and the Law Society. The plaintiff rejected the advice of counsel. He deposed in an affidavit filed on 11 February 2019 as follows:

8. [78]

   When self-represented litigants are referred by the Court to the Bar Association’s pro bono scheme it is not uncommon that, despite receiving generous assistance, they dismiss counsel and press on with claims that they have been soundly advised to abandon.

Orders

1. [79]

   By their submissions filed on 23 December 2019 the defendants applied for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The plaintiff has made no submission specifically against this form of costs order, although he has asserted that the defendants should not be awarded their costs. It is likely the defendants will be unable to recover anything from the plaintiff and that they would incur delay and more irrecoverable expense in the process of an assessment. A gross sum order is appropriate in these circumstances. An affidavit concerning the quantum of the gross sum was filed the day before the hearing, on 19 March 2020. The plaintiff will be given an opportunity to respond to that affidavit, after which a gross sum for the defendants’ costs will be assessed on the papers.

2. [80]

   Orders will be made to the following effect:

   1. (1)

      Judgment for the defendants.

   2. (2)

      The plaintiff is to pay the defendants’ costs of all aspects of the proceedings not already covered by previous costs orders.

   3. (3)

      The plaintiff may file any affidavit in relation to the quantum of a gross sum for the defendants’ costs under order (2) and under previous costs orders, pursuant to s 98(4)(c) of the Civil Procedure Act 2005, within seven days of publication of this judgment.

   4. (4)

      The amount of the defendants’ costs under order (2) and previous costs orders, to be assessed in a gross sum, is reserved.

   5. (5)

      Pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 and on the ground specified in s 8(e) in the said Act, disclosure of the contents of Exhibit SJM-2 and Exhibit DL-1, by publication or otherwise, is prohibited except to the extent that any of the contents of those exhibits is disclosed in the Court’s reasons for decision published this day.