Did Mr Clemett play the winning numbers?
14The winning numbers for Oz Lotto Draw 188 were 10, 24, 28, 34, 37 and 45. The critical question in the present case is the factual issue whether Mr Clemett has established on the balance of probabilities that he completed and entered an entry form for that draw which included a game panel containing those six numbers. I am not satisfied that he did.
15An important consideration in the conclusion I have reached is the inherent unlikelihood that a person could, after the lapse of almost 4 years and with nothing to prompt memory in the intervening period, recall the 6 numbers between 1 and 45 entered in a particular game panel, let alone the exact composition of numbers in each of 12 game panels. It must be acknowledged that Mr Clemett was unhesitating in his evidence at the hearing before me as to the numbers he played in September 1997. He gave a careful and elaborate account of the way in which he completed his entry form, setting it out on a large whiteboard which became exhibit A (at T16-21).
16Mr Clemett was equally unfaltering in his recollection of the amount of the unclaimed prize and its precise composition as being a one third share of the first division prize together with six third division prizes (T21). The significance of that evidence is considered below.
17I do not discount the possibility that Mr Clemett now genuinely believes that he submitted an entry form in the terms set out in exhibit A. He appears to have persuaded himself over a period of years that he is the rightful claimant to the unpaid prize from Oz Lotto Draw 188. In my assessment, his fixation on that as an immutable fact has prompted him, over the years, to bend all of the surrounding evidence to meet it.
18I am not persuaded that Mr Clemett's account of the entry he thinks he submitted in Oz Lotto Draw 188 is reliable. In particular, I am not persuaded that he submitted an entry form with the six winning numbers in a single game panel. His reasons for remembering the numbers he entered have changed over time. His claimed recollection of each of the six winning numbers was unconvincing. He does not claim to have played the same numbers repeatedly on other occasions.
19Mr Clemett said that he began that day with 4 numbers in mind, which were 4, 7, 10 and 45. He explained that the 10th is his birthday and that it is in the 4th month, April (he had previously attributed the choice of the number 4 to an address where his mother lived). The number 7 related to an address of his. He appeared to explain the number 45 only on the basis that it is "the end number". He accepted that it was not a number of any particular significance to him (T34.22).
20Mr Clemett demonstrated that he began completing his entry form by putting the number 10 (the date of his birthday) in every panel. In order to make sense of Mr Clemett's evidence at that point, it is necessary to understand that, moving crosswise, the game panels appear on exhibit A in the order 1, 3, 5, 7, 9 and 11 in the first row and then 2, 4, 6, 8, 10 and 12 in the second row. Mr Clemett said that, based on his "4, 7, 10 combination", he decided to put the six numbers he genuinely thought would win in what he described as "the seventh game on that entry form", being panel 4 (T17.17). Panel 4 is in fact the eighth panel, counting crosswise, but that is the panel Mr Clemett was referring to at that point of his evidence. He put "the end number 45" in panel 4. He then decided that he would select 2 numbers in the 20 to 30 range and 2 numbers in the 30 to 40 range. He chose 34 and 37 and put those numbers in panel 4. By this point in his evidence, panel 4 had the numbers 10, 34, 37 and 45 (T17.26).
21Mr Clemett said he then added the numbers 1, 2, 1 and 2 across the first 4 panels in the top row (1, 3, 5 and 7) so that he had number 1 in panel 1, number 2 in panel 3 (the transcript says panel 2 but he in fact put the number in panel 3), number 1 in panel 5 and number 2 in panel 7.
22Mr Clemett said he then decided to fill out the numbers in panel 1 (which by this point had the numbers 1 and 10). He put 45 and then 24, 28 and 37 (evidently drawn from his decision to have 2 numbers in the 20 to 30 range and 2 numbers in the 30 to 40 range).
23Mr Clemett said that, at that point, Mr Shelley came to chase him up because he was taking so long. Although it is not expressly recorded in the transcript, he was at that point describing his completion of panel 4. He added the number 24. He then asked Mr Shelley "what will be the 6th number that I will put in this game panel?" He asked Mr Shelley the date and, after checking a newspaper (they were in a newsagency), Mr Shelley said it was the 18th. Mr Clemett then said "Ahh, it follows, doesn't it, 34, 37, 24. I won't put 27, I'll put 28, okay" (T18.3). It seems likely that Mr Clemett intended that explanation to extend to his use of the number 28 in other panels as well, although that is not quite how the evidence came out. He did not use the number 27 in any panel.
24The suggestion was that, notwithstanding his preference for the numbers 4 and 7, Mr Clemett chose 28 instead of 27 as the second number between 20 and 30 because the date that day included an 8. The difficulty is that, as was ably established in cross-examination by Mr Hogan-Doran, who appeared for NSW Lotteries, Mr Clemett's final version of events was that the ticket was purchased on the 19th, not the 18th. Accordingly, that evidence not merely undermined his claim to remember choosing all six winning numbers but in fact tended to demonstrate with some force the likelihood of error in that account.
25Mr Clemett gave evidence that he submitted the 12 completed game panels as a 5-week multi-entry for which he paid a price of $61.75. Mr Shelley paid part of the price and also bought a $2 lottery ticket. They received a combined receipt for $63.75. Importantly, Mr Clemett stated that, when he submitted his entry, he was issued with a ticket. He says that he checked the ticket before leaving the newsagency. He specifically recalled that the numbers on the ticket representing game panel 4 (allegedly the winning panel) corresponded with game panel 4 on his entry form (T26.4). He says he was confident at that time that the winning numbers were those he had entered in game panel 4.
26As already noted, Mr Clemett called evidence from Mr Shelley to corroborate his claim. Mr Shelley's evidence revealed that he is a god-fearing man (see T57). He felt bad for having suggested to Mr Clemett to buy the ticket in the first place. He had a "terrible, dark, shuddering" feeling after they bought it as to what would happen to Mr Clemett if he won $10 million. Mr Shelley suggested to me that, if the ticket Mr Clemett bought that day is "not there", NSW Lotteries should pay an ex gratia or discretionary payment of at least $1 million to get the matter out of court (T57).
27Mr Shelley did recall a specific conversation about two of the six numbers that Mr Clemett played. Mr Shelley recalled saying, as to 24 and 34, "do you think they will come up in the same draw?" (at T58.11). It may be observed that the chance of those two numbers coming up in the same draw is exactly the same as the chance of any other combination of two numbers between 1 and 45 coming up in the same draw. In any event, Mr Shelley was not otherwise prepared, on oath, to say more than that he recalled "some of the numbers, not all the numbers" that Mr Clemett had played (T58.7).
28Mr Clemett's frustration in the face of that evidence was palpable. He attempted, in re-examination, to remind Mr Shelley of the version of events they had discussed on the several occasions when they were at the library together (apparently in preparation for this claim)(T59-60).
29As noted on behalf of NSW Lotteries, the only reliable information provided by Mr Clemett to support his claim is information which is publicly known. It is publicly known that the relevant lottery was Oz Lotto Draw 188 drawn on 23 September 1997; that the winning numbers were 10, 24, 28, 34, 37 and 45 and that the ticket for the unclaimed prize was purchased at Greenfield Newsagency.
30Mr Clemett's recollection of the other details of his entry has not been consistent throughout the lengthy period of his dealings with NSW Lotteries. In his first letter claiming the prize, he said that he did not know the outcome of the draw until he saw his long term newspaper account manager on the television (presumably a reference to the segment on A Current Affair). The letter provided considerable detail of the transaction, including an explanation as to why the winning numbers were "rivetted" on Mr Clemett's brain. As already noted, those numbers are publicly known.
31Other details of the winning ticket, notably those which are not publicly known, are evidently not rivetted on Mr Clemett's brain. He has, over a period of many years, engaged in lengthy correspondence with NSW Lotteries and, in doing so, has frequently changed his version of the relevant events. The inconsistencies are summarised in the evidence relied upon by NSW Lotteries (at pages 64 to 71 of exhibit 1). Those inconsistencies alone warrant the conclusion that Mr Clemett's evidence in these proceedings as to the games he entered is unreliable and does not establish any entitlement to the unclaimed prize on the balance of probabilities.
32Mr Clemett committed himself to a final version for the purpose of these proceedings. His final version of the entry he says he submitted was recorded in a document marked MFI 1. The numbers in that document were the same as those reproduced in exhibit A. The information in MFI 1 was referred by Garling J to an independent referee, Mr Bret Walker of Senior Counsel, for comparison with the details of the unclaimed winning entry held by NSW Lotteries (which for obvious reasons are confidential).
33Mr Walker's report to the Court establishes that none of the information provided by Mr Clemett in MFI 1 matches the winning entry. Specifically, contrary to the information provided by Mr Clemett, the winning entry did not contain 12 completed games, was not a 5-week multi-entry, was not purchased for the price of $61.75 or within 10% of that amount and did not contain the winning numbers in panel 4. Putting the matter beyond doubt, the report states that none of the game panels Mr Clemett asserts he entered is identical to any of the games on the winning entry (a circumstance apparently explained by the possibility of submitting a systems entry in accordance with rule 9 of the Oz Lotto Rules). Mr Walker's report has been adopted by the Court: Clemett v NSW Lotteries Corporation Pty Ltd [2013] NSWSC 506 per Garling J.
34The Walker report provides cogent support for the conclusion that Mr Clemett's evidence in these proceedings as to the games he entered is unreliable and does not establish any entitlement to the unclaimed prize. The report establishes to my satisfaction that Mr Clemett did not enter a game that matches the missing winning entry identified by NSW Lotteries.
35Mr Clemett nonetheless claims that his was a winning entry. His arguments were not expressed with great clarity. In response to the difficult obstacle of the Walker report and its adoption by the Court, Mr Clemett was left to explain how he can succeed when his entry does not match the identified winning ticket. He explained that the winning entry submitted by him was altered by the newsagent before being finally processed on a computer linked terminal. Alternatively (or at the same time), he contended that the details of the winning entry relied upon by NSW Lotteries and submitted to Mr Walker for the purpose of his report must be wrong. Each of those further claims entails its own difficulties.