Renshaw v New South Wales Lotteries Corporation Pty Ltd

1. [1]

   BRERETON JA: From 1 January 1997 until 31 March 2010, the first respondent New South Wales Lotteries Corporation Pty Ltd (“NSW Lotteries”) was a state-owned corporation established by s 5(1) of the (NSW) New South Wales Lotteries Corporatisation Act 1996, licensed to conduct public lotteries in New South Wales under the (NSW) Public Lotteries Act 1996, including Oz Lotto. Since 1 April 2010, NSW Lotteries has been a privately-owned company. In accordance with procedures that applied when it was owned by the second respondent State of New South Wales (“the State”), unclaimed prize money for lotteries conducted prior to 1 April 2010 is held in the State’s Consolidated Fund, and NSW Lotteries has no interest in it.

2. [2]

   When Oz Lotto Draw 188 was drawn on 23 September 1997, there were three winning tickets for the first division prize of $10 million. Two were claimed by ticketholders, who were duly paid their respective one-third shares. The third winning ticket has never been produced. In an endeavour to prompt the holder to come forward and claim the prize, the first respondent publicised the winning numbers, and the outlet from which the third winning ticket had been purchased. Since 1997, approximately 50 persons have claimed to have held the winning ticket; none of them has produced it, nor has any of them produced evidence acceptable to NSW Lotteries that they ever had it.

3. [3]

   Eighteen years later, on 27 December 2015, the applicant Mr David Renshaw sent a letter to NSW Lotteries claiming that it was he who had purchased the missing winning ticket. When his claim was not accepted by NSW Lotteries, he commenced proceedings in the Common Law Division, claiming relief in contract (to which claim the State, as the custodian of the unclaimed prize money, was a necessary party), negligence, trust, and restitution, and damages under s 82 of the (CTH) Trade Practices Act 1974 (“TPA”) [1] or s 68 of the (NSW) Fair Trading Act 1987 (“FTA”) [2] for contravention of the prohibitions contained in those statutes on engaging in conduct which is misleading or deceptive. The contractual, tortious, trust, and restitutionary claims were struck out by Walton J on 14 December 2018, on the basis that they were statute-barred and extinguished. [3] The remaining claims, which alleged misleading or deceptive conduct against NSW Lotteries, went to trial before Fagan J, who dismissed them in a judgment given on 8 April 2020. [4] His Honour rejected Mr Renshaw’s case on the facts, being unsatisfied that Mr Renshaw had purchased the missing winning ticket. However, his Honour also held that, with only the misleading and deceptive conduct claims against NSW Lotteries remaining, and all the other claims having been struck out, there was no cause of action pleaded against the State, so that the case against it had to be dismissed. Further, the misleading and deceptive conduct claims accrued no later than 26 September 1997, when Mr Renshaw claimed to have presented his winning ticket to an agency which discarded it, and the then applicable three year limitation period under TPA s 82(2) and FTA s 68(2) expired no later than 26 September 2000, so that Mr Renshaw was more than sixteen years out of time to commence proceedings. [5]

4. [4]

   On 27 April 2020, Mr Renshaw filed a Notice of Intention to Appeal from the judgment of Fagan J, well within time. There is some controversy as to whether it was served within time: Mr Renshaw deposed that it was served “on the last respondent” on 13 May 2020; while the respondents say that it was not served on them until 4 June 2020; in either case it was more than 28 days after the material date, and out of time. However, the respondents took no point in this respect. The effect of the Notice of Intention to Appeal was therefore to extend the material date to 27 July 2020.

5. [5]

   Mr Renshaw filed a Notice of Appeal on 20 July 2020.

6. [6]

   On 23 September 2020, the Registrar granted leave to file in Court a Notice of Discontinuance, which Mr Renshaw thereupon filed, and the Registrar noted that the proceedings were discontinued, making no order as to costs.

7. [7]

   On Friday 23 October 2020, Mr Renshaw forwarded to the Registry by email a Summons for Leave to Appeal. On Monday 26 October 2020, the Registry drew his attention to the requirement for payment of a filing fee. On 29 or 30 October 2020, Mr Renshaw applied for a postponement or waiver of the filing fee. That was granted on 5 November 2020, following which he filed a Notice of Appeal on 13 November 2020. At a directions hearing on 9 December 2020, the question of an extension of time was stood over to 8 February 2021, and directions were made for the service of affidavit evidence and submissions

8. [8]

   On 8 January 2021, Mr Renshaw filed a Notice of Motion and his affidavit of 7 January 2021. While the motion contains an extensive list of relief sought, some of which is not apt for a motion but is more in the nature of grounds of appeal or relief on appeal, for present purposes the relief claimed in the motion may be summarised as:

   1. (1)

      an extension of time in which to commence the appeal (described in the motion as to “reinitiate” the appeal);

   2. (2)

      an order for the hearing to be in closed court and/or a suppression order (under (NSW) Court Suppression and Non-publication Orders Act 2010, s 7); and

   3. (3)

      a “full referral” for pro bono assistance (under (NSW) Uniform Civil Procedure Rules 2005 (“UCPR”), r 7.36).

Application for pro bono referral

1. [9]

   UCPR r 7.36 provides:

2. [10]

   The essential test for making a referral for pro bono assistance under the rule is that it be in the “interests of the administration of justice” to do so. Mere satisfaction that a litigant cannot otherwise obtain legal assistance is an insufficient reason. As subrule (2) contemplates, it is relevant to consider the person’s means, needs and capacity, the nature of the proceedings, and the likely availability and utility of legal assistance.

3. [11]

   Moreover, pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated. The Court has a responsibility to husband this resource carefully. The obligations undertaken by a lawyer who accepts a referral import a concomitant obligation on the Court to exercise discretion in the making of referrals. [6] As I said in Dafaalla v Concord Repatriation General Hospital: [7]

4. [12]

   While referral for legal assistance does not reflect any opinion on the merits of a litigant’s case, normally the Court will want to see some signs of merit in a case before making a referral; absent merit, referral will rarely be “in the interests of the administration of justice”. [8] In some cases, the possibility that examination of the case by a competent practitioner will reveal merit may suffice. In still others, apparently devoid of merit, the Court may grant a referral for the purposes of advice, if there is a prospect that such advice may assist the litigant to appreciate the defects in the case, with the result that unnecessary and futile litigation may be avoided. [9] However, it would be a misuse of this valuable resource to grant a referral to a litigant whose case is devoid of apparent merit simply to make the Court’s task in dealing with the litigant easier.

5. [13]

   Mr Renshaw is a disability pensioner of very limited means. He says that he is dyslexic, struggles with reading, and barely completed his Higher School Certificate, with a very poor result in English. The proceedings have a degree of complexity. Those factors would weigh in favour of making a referral. But they do not mean that a referral should be made. There are, in this case, additional important considerations.

6. [14]

   First, for reasons which appear from the below discussion of the question of an extension of time, this is a case in which merit is at least not self-evident.

7. [15]

   More importantly, in the proceedings at first instance, Mr Renshaw had legal assistance at various times, on a pro bono basis. Some of this was independently sourced by Mr Renshaw, including through the New South Wales Bar Association. On one occasion at least, there appears to have been a referral from the Court. This does not appear to have been within the period of three years preceding the present application, so the restriction contained in UCPR r 7.36(2A) is not engaged. However, the fact and outcome of previous engagements of pro bono assistance are still relevant, for the following reasons.

8. [16]

   The position was described by Mr Renshaw, in the course of his submissions, as follows: [10]

9. [17]

   In other words, Mr Renshaw believes that those who have previously acted for him on a pro bono basis have assisted his opponents. Mr Renshaw further explained that he believed that those lawyers were acting under a suppressed direction from the relevant Minister, under s 59 of the (NSW) Public Lotteries Act 1996 (“Public Lotteries Act”). When he has been dissatisfied with their conduct or advice, they have been dismissed, and have become the subject of complaints to the Legal Services Commissioner. Any lawyer who accepts a pro bono referral in this case is likely to suffer the same fate.

10. [18]

    While Mr Renshaw’s impecuniosity and limited capacity to conduct complex litigation might favour a referral, the apparent absence of merit in his case does not. He is not likely to accept a lawyer’s advice if it is not favourable to him. Deploying pro bono assistance on his case would not be a worthwhile use of the resource. Moreover, the Court should not visit the substantial risk that they will become the subject of conduct complaints on those who offer to provide their services pro bono publico. I decline to make a referral.

Suppression order

1. [19]

   The Public Lotteries Act provides, by s 59:

2. [20]

   Section 80 relevantly provides:

3. [21]

   Mr Renshaw believes that he has caused or triggered an “irregularity”, and that as a result directions have been made (presumably under s 59) to avoid prejudice to the integrity of public lotteries. He expresses concern that various types of information, the disclosure of which would be prejudicial to the integrity of lotteries, will be deployed in Court in the course of the proceedings. He seeks a suppression order so as to avoid the prospect that he or anyone else might, as a result, contravene ss 59 or 80, and also to avoid compromising the integrity of the public lottery system.

4. [22]

   Assuming, without for a moment accepting, that there might be anything in the evidence that could compromise the integrity of the lottery system, that could be dealt with by appropriate orders restricting access or publication in the course of the hearing. In the first instance proceedings, most of the evidence was unrestricted, but there were some documents in respect of which confidentiality orders were made. The same course could be adopted, to the extent necessary, in respect of an appeal. There is no present requirement for any form of suppression or non-publication order, or for a closed court.

Application for extension of time

1. [23]

   Conventionally, the relevant considerations on an application for an extension of time include the conduct of the parties, the nature of the litigation, and the consequences for the respective parties of granting or refusing an extension. [11] Thus it is relevant to consider the extent of the delay, and the reasons for it; the prejudice to the applicant if leave be refused; the prejudice to the respondent if leave be granted; and the prospects of success of the proposed appeal. [12] However, perhaps more so than with other applications for extensions of time, applications for extensions of time within which to appeal have some of the characteristics of applications for extensions of limitation periods: after the time for appeal has expired, the party that succeeded at trial is entitled to expect that the litigation is over, and that legitimate expectation ought not be disturbed by an extension of time except for good reason. [13] A short extension may require very little more, unless the proposed appeal is manifestly without merit or the delay has not caused prejudice to the respondent. [14] It may be a sufficient explanation that the delay was attributable to a mistake or inadvertent omission. [15] However, one consequence of being out of time to appeal and requiring an extension is that, in distinction from an appeal brought in time as of right, an application for an extension of time invites a preliminary review of the merits. This will, at least ordinarily, not involve a detailed evaluation of the prospects of success of the proposed appeal, and it will generally suffice for the applicant to demonstrate a fairly arguable case, at least if there is a reasonable explanation for delay and no significant prejudice to the opponent; [16] but if either of those conditions is not satisfied, the applicant may be required to show that the proposed appeal has more than merely arguable prospects of success. [17] If it appears that the appeal is a highly meritorious one, that will weigh heavily in favour of an extension of time, although it is not decisive; but if it appears that the appeal cannot succeed, an extension of time to bring a hopeless appeal should not be granted.

2. [24]

   In this case, the chief matter which requires explanation is Mr Renshaw’s decision to discontinue the appeal. Mr Renshaw said that he discontinued the appeal “due to the fact that he had no direction”, in the belief that he was entitled to reinstate it within 30 days. How he gained this impression is not apparent. He referred to UCPR r 49.10, which says nothing of the sort. Nor does any other provision in the rules. The absence of a satisfactory explanation for why, having discontinued the appeal, he should now be permitted to reinstate it, is a factor weighing against granting an extension, but it is far from decisive.

3. [25]

   The respondents fairly did not claim to be prejudiced by the delay, although they pointed to the prejudice that they would incur by reason of further costs, which were likely to be irrecoverable from an impecunious Mr Renshaw. The fundamental basis of their opposition was that the appeal could not succeed, because the notice of appeal identifies no error, let alone an arguable one, in Fagan J’s holdings that (1) there was no case pleaded against the second respondent; and (2) the claims against the first respondent were not maintainable as they were more than sixteen years out of time.

4. [26]

   The State was a party because its Consolidated Fund was the repository of the unclaimed prize money, and it was a necessary party to the contractual claims while they were on foot. It is not alleged to have engaged in misleading or deceptive conduct, nor to be responsible in any way for the conduct alleged against NSW Lotteries. For that reason, quite apart from the factual findings his Honour made adverse to Mr Renshaw, he had no claim against the State. This is not challenged by any of the numerous grounds in the notice of appeal.

5. [27]

   Nor does any ground of appeal challenge the striking out, by Walton J, of Mr Renshaw’s contractual, tortious, trust, and restitutionary claims as not maintainable by reason of being statute-barred.

6. [28]

   The claim that went to trial was for damages for contravention of the statutory prohibitions on engaging in conduct that is misleading or deceptive. His Honour found that even if NSW Lotteries had engaged in any misleading or deceptive conduct, damage was incurred by Mr Renshaw not later than 26 September 1997, and that the then-applicable limitation period of three years therefore expired no later than 26 September 2000. No ground of appeal in the notice of appeal challenges those findings; nor is it apparent how they could be challenged.

7. [29]

   In a proposed sixth Amended Statement of Claim provided with his written submissions, Mr Renshaw pleaded that for various reasons his causes of action did not accrue until in or about December 2015, and that the time before then does not count in the reckoning of the applicable limitation period, and invoked (NSW) Limitation Act 1969 (“Limitation Act”), ss 54 (confirmation) and 56 (mistake).

8. [30]

   It is settled that a cause of action under TPA s 82 and/or FTA s 68 accrues when damage is first suffered. [18] Making all relevant assumptions in his favour, Mr Renshaw first suffered damage, at the latest, on 26 September 1997, when he says that the NSW Lotteries agent to whom he presented his ticket falsely denied that it was a winning ticket and discarded it, thereby effectively destroying his ‘title’ to the prize.

9. [31]

   Even the provisions of the Limitation Act were relevant to a claim under TPA s 82 and/or FTA s 68, neither ss 54 nor 56 is arguably engaged. As to s 54, nothing in the proposed pleading identified any act of NSW Lotteries in 2015 that could have amounted to a confirmation. In addition to the matters referred to in that proposed pleading, Mr Renshaw claims to have been told by the call centre of NSW Lotteries on 2 October 2020 that his ticket was the winning ticket. When questioned by me as to this, he said that on 2 October 2020 he called the call centre and spoke to a female operator: [19]

10. [32]

    As I understand it, Mr Renshaw relies on that as a confirmation that revives his cause of action. However, a statement by an agent in a call centre, in that context, that he should take the letter to the nominated bank, and that that the prize would then be paid, could not possibly amount to a confirmation of a time-barred cause of action on a disputed claim, all the more so given the litigation which had taken place to that point.

11. [33]

    Reliance on s 56 is also misconceived: while Mr Renshaw says that because of mistake he was not aware until 2015 that he had purchased the winning ticket, s 56 is not concerned with mistake as a reason for not commencing proceedings, but with a cause of action for relief from the consequences of a mistake. Mr Renshaw’s claims for damages for misleading and deceptive conduct are not claims for relief from the consequences of a mistake.

12. [34]

    In any event, as I have foreshadowed, the provisions of the Limitation Act have no relevance to a cause of action under TPA s 82 or FTA s 68, which contain their own limitation provisions. [20] Limitation Act s 54, by reason of sub-s (1), applies only to a limitation period “fixed by or under this Act” – not to a limitation period fixed by another Act, let alone one fixed by a Commonwealth Act.

13. [35]

    No ground in the notice of appeal challenges Walton J’s decision to strike out the contractual, tortious, trust, and restitutionary claims. No ground challenges Fagan J’s holdings that, the other claims having been struck out, no case remained against the State; and that any claim for damages for misleading and deceptive conduct by NSW Lotteries was statute-barred, being many years out of time. No basis on which such a challenge could be sustained is apparent. Regardless of the merits of any challenge to his Honour’s factual findings and conclusions, the appeal cannot succeed.

Conclusion and orders

1. [36]

   For the foregoing reasons, I decline to refer Mr Renshaw for pro bono assistance, to make a suppression order, and to grant an extension of time for appeal. It follows that the appeal, without an extension of time, is incompetent, and must be dismissed.

2. [37]

   The Court orders that:

   1. (1)

      The claims for relief in pars 1, 2 and 3 of the applicant’s notice of motion filed on 7 January 2021 be dismissed.

   2. (2)

      The notice of appeal filed on 13 November 2020 be dismissed as incompetent.

   3. (3)

      The applicant pay the respondents’ costs of the motion and of the appeal.