Renshaw v New South Wales Lotteries Corporation Pty Ltd - [2018] NSWSC 1954 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Renshaw v New South Wales Lotteries Corporation Pty Ltd

[2018] NSWSC 1954

Supreme Court of NSW|2018-03-06|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-03-06

Before

Walton J

Catchwords

[1964] HCA 69 Gunns Ltd v Marr [2005] VSC 251 Guthrie v Spence (2009) 78 NSWLR 225
[2015] HCA 6 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635

Source

Original judgment source is linked above.

Catchwords

[1964] HCA 69 Gunns Ltd v Marr [2005] VSC 251 Guthrie v Spence (2009) 78 NSWLR 225[2015] HCA 6 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635

Judgment (64 paragraphs)

[1]

es Cited: Australian Mid-Eastern Club Ltd v Elbakht (1988) 13 NSWLR 697 Barnes v Addy (1874) LR 9 Ch App 244 Bradley v Eagle Star Insurance Company Ltd [1989] AC 957 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Charles Forte Investments Ltd v Amanda [1964] Ch 240 Clemett v NSW Lotteries Corporation Pty Ltd [2014] NSWSC 373 Commonwealth of Australia v Mewett (1995) 140 ALR 99 Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gunns Ltd v Marr [2005] VSC 251 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Harris v Newcastle-upon-Tyne Health Authority [1989] 2 All ER 273 Hillebrand v Penrith Council [2000] NSWSC 1058 Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86 Huntley Management Ltd v Australian Olives Ltd (2010) 186 FCR 430; [2010] FCAFC 98 Jordan v Money (1854) 10 ER 868 Karaagac v GRA Insurance Ltd (Unreported, Court of Appeal of New South Wales, Meagher JA, 26 April 1989) Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 McGuirk v University of New South Wales [2009] NSWSC 1424 Meckiff v Simpson [1968] VR 62 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 National Australia Bank v Sayed (No 6) [2016] NSWSC 1253 Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1986] VR 408 Phillips-Higgins v Harper [1954] 1 QB 411 Rainy v Bravo (1872) LR 4 PC 287 Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 Remmington v Scoles [1897] 2 Ch 1 Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Shortland Electricity v O'Connor [1999] NSWCA 87 Sinclair v Registrar-General [2010] NSWSC 173 Strano v Australian Capital Territory (2016) 306 FLR 232; [2016] ACTSC 4 Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 Waller v Waller [2008] WASC 51 Waller v Waller [2009] WASCA 61 Texts Cited: G E Dal Pont, Law of Limitation (LexisNexis Butterworths, 2016) Judicial Commission of NSW, Civil Trials Bench Book (at 15 November 2018) LexisNexis, Richie's Uniform Civil Procedure NSW (at 5 November 2018) New South Wales, New South Wales Government Gazette, No 142, 24 December 1993 New South Wales, New South Wales Government Gazette, No 68, 25 June 1997 Category: Procedural and other rulings Parties: David Owen Renshaw (Plaintiff / Respondent) New South Wales Lotteries Corporation Pty Ltd (First Defendant / First Applicant on Motion) The State of New South Wales (Second Defendant / Second Applicant on Motion) Representation: Counsel: J Hogan-Doran (Defendants / Applicants on Motion)

[5]

The Ticket Purchased by Mr Renshaw

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): Particulars (a) The plaintiff purchased the ticket on or about 19 September 1997 between 2pm to 3pm; (b) The ticket comprised three games (i) Systems 7 where the plaintiff marked by hand 6 games; (ii) Standard Games where the plaintiff marked by hand 6 games; (iii) 6 or 9 or 10 Auto Pick or Quick Pick games. (c) The plaintiff played 6 games of Systems 7, he played 6 standard games and 6 or 9 or 10 games of Auto Pick or Quick Pick; (d) In the 6 System 7 games and the 6 Standard games the plaintiff selected from the following seventeen numbers being family birthdays and addresses: 2, 5, 6, 7, 8, 10, 12, 14, 18, 20, 22, 23, 24, 28, 34, 37 and 45. (e) The numbers in each Auto Pick or Quick Pick games were selected by computer; (f) The plaintiff paid between $57.00 and $63.00 for his ticket; (g) The plaintiff does not recall the ticket serial number.
Mr Renshaw set out the factual background to his claim as follows: 8. At all material times, the owner and operator of the Granville Railway Station Newsagency at Granville Railway Station at Granville, New South Wales, 2142 (hereinafter "Granville Outlet") was an agent and Retailer appointed or approved by the first defendant. 9. The first defendant provided its agents and Retailers including the Granville Outlet with a computer linked terminal for the purpose of checking lottery tickets of persons claiming lottery prize money for prize winnings. … 13. The first defendant via its central processing computer equipment provided the Granville Outlet with information regarding the plaintiff's entry coupon to the Granville Outlet computer linked terminal. 14. The first defendant provided the Granville Outlet with the computer linked terminal. 15. Within the week following 23 September 1997, the plaintiff attended the Granville Outlet and presented his entry coupon to the male attendant who inserted the plaintiff's entry coupon into a computer linked terminal whereupon words indicating the plaintiff had won the first division prize for Oz Lotto Draw 188 appeared on the display screen facing the plaintiff: Particulars PROVISIONAL WINNER 16. The plaintiff alleges that the words 'PROVISIONAL WINNER' when appearing meant that the plaintiff had won the first and second prize winnings of Oz Lotto Draw 188. 17. The plaintiff upon seeing the words 'PROVISIONAL WINNER' questioned the attendant as to their meaning and effect whereupon the attendant advised the plaintiff that his entry coupon was not a winning entry coupon and thereafter without the plaintiff's consent threw the plaintiff's entry coupon form in a nearby waste receptacle and refused to retrieve the plaintiff's entry coupon and return it to him. 18. In or around 2015, the plaintiff became aware that the words 'PROVISIONAL WINNER' meant that he had won first division prize winnings in Oz Lotto Draw 188. 19. On and following 30 December 2015, the plaintiff gave written notice to the Prize Administration Officer of the first defendant that he claimed the prize winnings in Oz Lotto Draw 188. 20. The first defendant refuses and neglects to pay the plaintiff the prize winnings in Oz Lotto Draw 188. … 30. The plaintiff claimed his share of the Oz Lotto Draw 188 Prize through an 'Agency' being the Granville Outlet in accordance with Oz Lotto Rules 1(a)(i) then applying. (A more comprehensive summary of the relevant factual background is set out at [21]-[27] below).

[7]

Misleading or Deceptive Conduct

Under the heading "Misleading or deceptive conduct", it was pleaded: 38. Whenever the first defendant accepted subscriptions for an Oz Lotto draw, the first defendant: (a) issued entry coupons incorporating the Oz Lotto Rules; (b) represented that the first defendant and its agents and Retailers would comply with the Rules; (c) represented that the first defendant or its agents and Retailers would take reasonable care to ensure that entry coupons were correctly issued; (d) represented that the first defendant or its agents and Retailers would take reasonable care to ensure that completed entry coupons were correctly processed so as to ensure that entry data was correctly received by the first defendant; (e) represented that the first defendant or its agents and Retailers would take reasonable care to ensure that entry coupons presented for checking were correctly processed; (f) represented that the first defendant or its agents and Retailers would take reasonable care to ensure that any winning entry was properly advised to the entrant; (g) represented that the first defendant or its agents and Retailers would take reasonable care for the safe keeping or safe return of an entry coupon if such entry coupon was requested to be returned to an entrant; (h) represented that the first defendant had in place and followed a system which ensured or which took reasonable steps to ensure matters (a) to (g); (i) represented that the first defendant followed the system in (h); (j) represented that the plaintiff was a Provisional Winner of Oz Lotto Draw 188. (k) represented that the plaintiff was not entitled to the return from the attendant at the Granville Outlet when the plaintiff requested that he do so. 39. Each of the representations in paragraph 37 of this Statement of Claim were not correct and the plaintiff's reasonable expectation that they were correct and would be met was not corrected by the first defendant or any person on behalf of the first defendant including the attendant at the Granville Outlet. 40. By reason of the matters in paragraphs 38 and 39 of this Statement of Claim, the first defendant engaged in misleading and deceptive conduct or conduct likely to mislead and deceive. 41. The matters in paragraphs 38 to 40 of this Statement of Claim constitute: (a) breach of section 42 of the Fair Trading Act 1987 (NSW) as existing at the date of Oz Lotto draw 188; (b) breach of section 52 of the Trade Practices Act 1974 (Cth) as existing at the date of Oz Lotto draw 188; (c) breach of section 53 of the Trade Practices Act 1974 (Cth) as existing at the date of Oz Lotto draw 188.

[10]

The Limitation Act

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: 6. (a) The plaintiff asserts that he made a claim to the first defendant within the limit set by the Public Lotteries Regulation 2016; and (b) The plaintiff relies on the Limitation Act 1969 (NSW) section 52(1) and (2) and section 11(3)(b) to bring his causes of action in both Contract and Tort within the limits specified by the Act. Particulars A. The plaintiff has been incapable of or substantially impeded in, the management of his affairs in relation to the causes of action in respect of the limitation period for which the question arises by reason of the following diseases and impairments to his physical or mental condition that have had a duration of twenty-eight days and upwards: (i) The plaintiff suffered workplace injury in a building accident on 18 September 2000 and incurred injuries that in some cases are ongoing; (a) right shoulder injury requiring reconstruction in or around 2001; (b) Fractures of vertebrae C5 and C6 still requiring fusion; (c) Closed head injury; (d) Thoracic spine injury; (e) numbness and weakness to right side of body; (ii) In 2001 the plaintiff was diagnosed with Guillain-Barre (GB) syndrome, an auto-immune disease that causes weakness; (iii) Between 2001 and 2004 the plaintiff's mobility was compromised and he had to re-learn how to walk without the assistance of walking devices; (iv) 2005 to 2006 the plaintiff was unable to conduct a business and relied on his wife; (v) Motor Vehicle Accident 14 July 2007 resulting in neck and back pain; an x-ray of the plaintiffs lungs revealed lumps and reduced lung capacity; (vi) Plaintiff reports slow mental functioning following the workplace injury of 2000; (vii) The plaintiff is diagnosed with dyslexia; (viii) The plaintiff was incarcerated in 2008 for 8 months; (ix) 2009 the plaintiff was diagnosed with squamous cell carcinoma; (x) On 23 March 2010, the plaintiff suffered a seizure or mini stroke; (xi) The plaintiff reports constant mental and physical exhaustion and fatigue since his workplace injury of 2000 and the diagnosis of GB syndrome in 2001.
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: 50. The plaintiff repeats and relies on paragraphs 8, 9, 13 to 20 and 30 of this Statement of Claim and alleges that because of mistake, the first time the plaintiff was able to discover with reasonable diligence that he purchased a winning ticket in Oz Lotto Draw 188 was on or around 27 December 2015. Particulars (i) the Granville Outlet attendant on or around 30 September 1997, represented to the plaintiff that his ticket was not a winning ticket following which the plaintiff gave the attendant full faith and credit regarding his advices the plaintiff that his ticket was not a winning ticket; and (ii) it was not until in or around 2015 that the plaintiff became aware that he purchased the winning ticket. 51. The plaintiff relies on section 56 of the Limitation Act 1969 (NSW) and alleges that his causes of action pleaded in this Statement of Claim did not accrue until in or around 2015 and the period of time between on or around 30 September 1997 and in or around 2015 do not count in the reckoning of the limitation period in respect of the plaintiffs causes of action. 52. Further or in the alternative, the plaintiff's causes of action did not accrue for the purposes of section 14 of the Limitation Act 1969 (NSW) until on or around 27 December 2015 when the defendants refused and or neglected to pay the plaintiff the Oz Lotto Draw 188 prize winnings.

[11]

Relief Sought

Mr Renshaw sought nine aspects of relief under the heading "Relief Claimed" as follows: 1. Judgment and damages in the sum of $3,333,333.00 being one third of the first division prize in Oz Lotto Draw 188 drawn on 23 September 1997. 2. Judgment and damages in such sum of money being the plaintiffs [sic] prizes in any other division/s of Oz Lotto Draw 188 drawn on 23 September 1997. 3. Interest at the prescribed rates. 4. Costs in the event I am ever legally represented. 5. My out of pocket expenses relating to these proceedings. 6. Declaration that pending payment of the first division prize monies to the plaintiff that the defendants hold the first division prize monies on trust for the benefit of the plaintiff. 7. Declaration that the defendants are estopped from relying on section 14 of the Limitation Act 1969 (NSW) in respect of the period between on or about 30 September 1997 (being the date when the plaintiff handed his ticket to the attendant at the Granville Railway Station Newsagency) and on or about 25 December 2015 (when the plaintiff first became aware that he could have purchased the winning ticket for the Oz Lotto Draw 188). 8. In the alternative to 7, declaration that the plaintiff's cause of action for the purposes of section 14 of the Limitation Act 1969 (NSW) accrued on or about 27 December 2015 when the plaintiff by letter notified the defendants that he was the unclaimed prize winner of Oz Lotto Draw 188 and the defendants refused or neglected to pay the plaintiff the winnings. 9. That the limitation period be extended to the filing of this Second Amended Statement of Claim.
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. 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. 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. Paragraphs 3-5 related to interest and costs; 4. Paragraph 6 was connected to the allegation of breach of trust in paras 45-46; 5. Paragraph 7 was connected to reliance on s 56 if the Limitation Act paras 50-52; 6. Paragraph 8 was connected to para 52; and 7. Paragraph 9 appeared to be unnecessary because the effect of s 56 is that there is no need for an extension of time.

[13]

FACTUAL BACKGROUND

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.
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.
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).
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.
Mr Renshaw pleaded that: 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. 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. what then occurred was: The plaintiff upon seeing the words 'PROVISIONAL WINNER' questioned the attendant as to their meaning and effect whereupon the attendant advised the plaintiff that his entry coupon was not a winning entry coupon and thereafter without the plaintiff's consent threw the plaintiff's entry coupon form in a nearby waste receptacle and refused to retrieve the plaintiff's entry coupon and return it to him.
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.
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.

[14]

Prior to hearing from November 2016 to May 2017

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.
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. 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. 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. 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.
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.
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.
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.
On 19 April 2017, the defendants jointly filed the first notice of motion which sought orders in the following terms: 1. An order pursuant to UCPR 14.28(1) and/or s.61(3)(b) of the Civil Procedure Act 2005 that: (a) the whole of the First Amended Statement of Claim be struck out; (b) in the alternative, paragraphs 33 to 41 of the First Amended Statement of Claim be struck out. 2. An order that the Plaintiff pay the Defendants' costs of the proceedings, including this motion. 3. Alternatively, an order that the Plaintiff pay the Defendants' costs of the motion. 4. Such further or other order as the Court seems [sic] fit.
The defendants also filed the affidavit of Mr Sutherland in support of that motion (set out at [19] above).
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.
On 11 May 2017, the defendants jointly filed a defence to the first ASOC ("the defence").
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.
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.

[16]

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

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.
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.
The parties also discussed the need for Mr Renshaw to clearly identify the material features of the winning ticket he claimed that he bought.
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"): 1. On or before 6 September 2017, the plaintiff is to file and serve a Second Amended Statement of Claim identifying by pleadings and/or particulars the material features of the ticket that he alleges he acquired including as to (if known): (a) the date and time or time range within which it was purchased; (b) the type of game(s) played, including any standard games, systems games or auto-pick games, and any combination thereof; (c) the number of each such games played; (d) the numbers he selected in each systems or standard game; (e) the numbers picked for him in each auto-pick game; (f) the price paid for the ticket; and (g) the ticket serial number. 2. On or before 6 September 2017, the plaintiff shall filed and serve any further evidence in support of the amendments referred to in order 1. 3. On or before 4 October 2017, the defendants shall file and serve: (a) any amended notice of motion seeking to strike out the Second Amended Statement of Claim; and (b) any further evidence in support of that motion. 4. Insofar as the defendants claim any confidentiality in respect of the evidence referred to in order 3(b) including any annexure or exhibit, such evidence, annexure or exhibit is to be: (a) inserted into an envelope marked 'Confidential' and sealed; and (b) filed by way of hand-delivery to the associate to Walton J. The defendants have liberty to approach the associate to Walton J for the purposes of such delivery. 5. The proceedings be listed for directions on 25 October 2017, including for the purposes of determining the treatment of any confidential evidence.
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.
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. a pleading relying on s 52(1) and (2) and s 11(3)(b) of the Limitation Act (see [14] above); 2. particularisation of Mr Renshaw's diseases and impairments to his physical or mental condition (see [14] above); and 3. particularisation of the ticket purchased by Mr Renshaw (see [8] above).
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.

[17]

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

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.
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"): 1. The defendants' solicitors are to provide access for inspection by the plaintiff in company with his counsel and/or his solicitor to the exhibit marked SJM-2 to the affidavit of Stuart James McNamara sworn 17 October 2017 (the confidential exhibit). 2. Such access is to be made available at the offices of the defendants' solicitors within 7 days of the making of these orders. 3. No copy is to be made of the confidential exhibit by the plaintiff or his legal representatives whether by photocopy, photograph or other means of mechanical or electronic reproduction. 4. No notes of the contents of the confidential exhibit are to be taken by the plaintiff or his legal representatives of the confidential exhibit. 5. Following inspection, the confidential exhibit is to be returned to the solicitors for the defendants. 6. Parties have liberty to apply in relation to the making of these orders. 7. The proceedings otherwise be adjourned for directions on 23 November 2017.
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.

[18]

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

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.
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.
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: 1. The Defendants have leave to further amend [and file] its amended notice of motion in the form annexed to these orders and marked "A". 2. Such further amended notice of motion be filed and served on the Plaintiff within 7 days of the making of these orders. 3. On or before 25 January 2018, the plaintiff is to file and serve any proposed further amended claim and any further material on which he intends to rely at the hearing of the motion. 4. On or before 6 February 2018, the defendants are to file and serve an outline of written submissions. 5. On or before 20 February 2018, the plaintiff may, but is not required to, file and serve any outline of written submissions in response. 6. On or before 1 March 2018, the defendants are to file and serve a supplementary court book by delivery to the associate to Walton J and to the plaintiff, containing: (a) any further affidavit on which the parties intend to rely at the hearing of the motion that has already been served in the proceedings but not included in the court book, including: (i) the affidavit of David Renshaw sworn 8 August 2017; (ii) the affidavit of David Renshaw sworn 6 September 2017; (iii) the affidavit of Stuart McNamara sworn 17 October 2017 (including Exhibit SJM-1 but excluding confidential Exhibit SJM-2); and (iv) the affidavit of David Renshaw sworn 17 November 2017, and any other affidavit already served by the plaintiff which the plaintiff intends to rely upon and which he notifies to the plaintiff by 25 January 2018; (b) such further material as the plaintiff files and serves in accordance with order 3 above; and (c) a copy of the written submissions filed and served in accordance with orders 4 and 5 above. 7. The Defendants' further amended notice of motion be listed for hearing (part heard) on 6 March 2018 with an estimate of 1 further day. 8. A copy of these orders be served on the plaintiff by the solicitors for the defendants. 9. Such material as is required to be served on the plaintiff by the defendants shall be served by mail to the attention of the plaintiff at PO Box 133, Penrith NSW 2751.
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.
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. there were three identical games; 2. all three games contained six numbers within the standard portion of the ticket; and 3. Mr Renshaw "dropped a number from each of the six hand marked 7 games to make the six hand marked standard".
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".

[20]

ISSUES

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.
The defendants identified six bases upon which it based its application on the motion. The issues raised in that context were as follows: 1. Whether Mr Renshaw's claim in contract to be paid in accordance with the Rules governing Draw 188 was doomed to fail, because: 1. he did not have a winning ticket and other relevant particulars to make a valid claim; and 2. as such, he has not made any claim within the time specified by the Public Lotteries Regulation. 1. 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. 2. 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. 3. 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. 4. Whether Mr Renshaw's pleadings as to restitution disclosed a cause of action and, again, whether that claim was out of time. 5. Whether s 56 of the Limitation Act extended the limitation period, and whether the causes of action were founded upon mistake.
Mr Renshaw resisted the strike out application broadly on the following bases: 1. he contended the causes of action did not accrue until 2015 (reliance was placed on s 56 of the Limitation Act); 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. 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).

[21]

Strike out Provisions

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.
Section 61 of the CPA is in the following terms: 61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.
Rule 14.28 of the UCPR is in the following terms: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).

[22]

Limitation Provisions

The provisions within the Limitation Act are important for the consideration of the strike out application currently before the Court.
Section 11(3) of the Limitation Act defines whether a person is "under a disability" as follows: (3) For the purposes of this Act a person is under a disability: (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958, (iii) war or warlike operations, or (iv) circumstances arising out of war or warlike operations.
Section 14(1) deals with the limitation period generally and is extracted below: 14 General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed, (b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty, (c) a cause of action to enforce a recognizance, (d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
Section 48 relates to the operation of the limitation period with respect to breaches of trust. It is in the following terms: 48 Breach of trust An action on a cause of action in respect of a breach of trust is not maintainable if brought after the expiration of the only or later to expire of such of the following periods of limitation as are applicable: (a) a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims, and (b) the limitation period for the cause of action fixed by or under any provision of this Act other than this section.
The term "trust" is defined in s 11 as follows: Trust includes express implied and constructive trusts, whether or not the trustee has a beneficial interest in the trust property, and whether or not the trust arises only by reason of a transaction impeached, and includes the duties incident to the office of personal representative but does not include the duties incident to the estate or interests of a mortgagee in mortgaged property.
Section 52 relates to the impact of disability on the limitation period and is set out below:: 52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. (3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party.
Section 56 deals with the limitation period relating to a cause of action from the consequences of a mistake, it provides as follows: 56 Mistake (1) Subject to subsection (3), where there is a cause of action for relief from the consequences of a mistake, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the mistake does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person. (2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection. (3) Where property is, after a transaction in which a mistake is made, purchased for valuable consideration by a person who does not, at the time of the purchase, know or have reason to believe that the mistake has been made, subsection (1) does not apply to a limitation period for a cause of action for relief from the consequences of the mistake against the purchaser or a person claiming through the purchaser.
Section 63 deals with the extinguishment of a cause of action for damages and is extracted in full: 63 Debt, damages etc (1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished. (2) Where, before the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to the debt damages or other money: (a) for the purposes of the action, or (b) so far as the right or title is established in the action. (3) This section does not apply to a cause of action to which section 64 or section 65 applies.
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: 82 Actions for damages (1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. (2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
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: 68 Actions for damages (1) A person who suffers loss or damage by conduct of another person that is in contravention of a provision of Part 3, 4, 5 (section 43 excepted), 5A or 5B may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention. (2) An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.

[23]

Issues (1) to (2): Claim in contract under the Rules

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]).
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).
The defendants also contended that Mr Renshaw could not provide anything equivalent to a "ticket" or arguably establish the authenticity of his claim.
The defendants provided the following summary of the Rules: The Rules 13. Section 22 of the Public Lotteries Act 1996 (NSW) (the "Act") required that NSW Lotteries, as a licensee of public lottery games, make certain rules subject to approval by the Minister for Gaming and Racing (the "Minister") in relation to the conduct of its games. Section 22(b) of the Act required that such rules must provide for the determination of the entitlement, if any, of a subscriber to a prize in the public lottery games conducted by NSW Lotteries. The rules, once approved and published, "take effect" under s 23 of the Act. 14. In September 1997, the Oz Lotto lottery game was conducted in accordance with rules published in the NSW Government Gazette No. 142 (1993) p 7546 on 24 December 1993 and amended as published in the NSW Government Gazette No. 68 (1997) on 25 June 1997 p 5167 (the Rules). 15. Pursuant to s. 8(b) of the Act, NSW Lotteries would commit an offence if it conducts a public lottery in contravention of such Rules. Pursuant to s. 17(2), disciplinary action may be taken against a licensee such as NSW Lotteries if it fails to comply with the Rules. 16. In accordance with the Rules: (1) persons intending to participate in an Oz Lotto draw were required to fill in an entry form. Those that have done so are referred to as 'Subscribers'; [Under the applicable Rules, discussed, below, 'Subscriber' is defined as follows in Rule 1(a)(xxxvi): "Subscriber" means the person who has subscribed to a Game of Oz Lotto by way of an Entry Form or Automatic Entry and includes the person who holds, bears or submits a Ticket and where the context admits, includes a Registered Subscriber.] (2) entry forms were available from various places including agents of NSW Lotteries such as newsagencies (see Rule 6). They could be submitted only through an 'Agent' or by post to NSW Lotteries (Rule 11); (3) the entry form comprised of various squares each with 40 numbers. Each square was referred to as a 'game' that the Subscriber could 'play'. To play a game, the Subscriber had to choose six numbers from the numbers available in each game square [More could be chosen for entries known as 'Systems Entries' but these are not relevant here]. The Subscriber could choose to play up to 12 games per entry form; (4) the Subscriber's entry form is submitted to the agent who processes the entry form using a 'Computer Linked Terminal' connected to NSW Lotteries; (5) the agent supplies the Subscriber with a Ticket, recording the relevant details including number of games, number combination chosen, price etc. [This is defined as follows in accordance with Rule 1(a)(xl): "Ticket" means the receipt which is the official confirmation of a Subscriber's entry to a Game of Oz Lotto and which is produced and validated by a Computer Linked Terminal.] and the Ticket Serial Number; [This is defined as follows in accordance with Rule 1(a)(xli): "Ticket Serial Number" means the numbers and/or letters Imprinted on Tickets and which constitute an official identification of the issue of a Ticket.] (6) the Subscriber could choose to register themselves and so become a Registered Subscriber. A Subscriber who was not a Registered Subscriber could only play a 'Standard' entry game (Rule 8); (7) the Registered Player had the option to play multi-week games, that is to have their entry form (with the number of games they had chosen on their entry form with the combination of numbers as chosen) played in each of the Oz Lotto draws over a period of weeks (Rule 10); (8) the number of games played and the number of weeks for which they were paid affected the price paid for the ticket; (9) the 'Drawing' (See Rule 1 as amended in 1997) was conducted by the random drawing from a barrel of six numbered balls with the 'Winning Numbers' being the first six numbers drawn for each game - Rule 1(a)(xlii). Two further numbered balls were drawn at random to identify the "Supplementary Numbers"; (10) any Subscriber who had played a game by choosing the same combination of six numbers as the 'Winning Numbers' was entitled to a share of the 'Division 1 prize (Rule 12(c)) [If the person had chosen fewer than six of the winning numbers, with or without also choosing one of the supplementary numbers, he or she might be entitled to a lesser prize depending on the provision of prizes for the draw (e.g. choosing one of the winning 5 number plus one of the supplementary numbers entitled the Subscriber to a Division 2 prize)]. If there was more than one winner, the winners would share the prizes pro rata, but if there was no winner of a prize, the prize could be retained to 'jackpot' into future Drawings; and (11) the Winning Numbers would be notified to the media together with other information including the method for Subscribers to claim prizes (Rule 13). 17. Importantly to Mr. Renshaw's case, Rule 14 prescribes the procedure for claiming a prize against the licensee in relation to a game of Oz Lotto, as follows: (1) Rule 14(a)(i) required Mr. Renshaw to lodge a claim form (emphasis added): (i) Other than as provided for Registered Subscribers, all prizes exceeding $1,000.00 shown on a Computer Linked Terminal, must be claimed by lodgement with NSW Lotteries of a prize claim form containing or accompanied by the like particulars set out in Rule 14(h) and any other evidence that the General Manager may from time to time require; (ii) The date of lodgement of a prize claim is the day of receipt by NSW Lotteries… (2) Rule 14(h) specifies the relevant particulars to be included in the claim form (emphasis added): (i) the name and address of the Subscriber; (ii) the Ticket Serial Number; (iii) the numbers included on the relevant numbered line on the Ticket; (iv) the Subscriber's registration number if a Registered Subscriber (v) the Ticket; and (vi) such further evidence and information as NSW Lotteries requires. (3) Prizes claimed by Registered Subscribers (which Mr. Renshaw does not claim to be) are dealt with by Rules 14(b) to (c). [Registered subscribers are identified subscribers. Nevertheless, the General Manager may require a person claiming to be entitled to a prize to provide evidence to identify themselves (Rule 14 (i))]. (4) For the unregistered Subscriber such as Mr. Renshaw, if the prize won does not exceed $1,000, the Subscriber can claim the prize from any Agent 'upon surrender of a winning Ticket' the day after the Draw and before 8 weeks after the date of the draw - if late, the prize must be claimed by submitting a prize claim form per Rule 14(e) (Rule 14(d)). (5) If a prize is not claimed within 8 weeks or, as here, the prize is in excess of $1,000, Rule 14(e) then provides how to make a claim (emphasis added): Prizes not paid by an Agent in accordance with Rule 14(d) will be paid by NSW Lotteries upon the submission to NSW Lotteries of a prize claim form, the prize winning Ticket and such other evidence as the General Manager may from time to time require. A sum representing the cost of applicable postage will be deducted from the prizes so paid; (6) If a Subscriber claims to be entitled to (relevantly) a Division 1 prize, and he or she has not been notified of that entitlement (as a Registered Subscriber or because the Ticket is not shown as a Winning Ticket on a Computer Linked Terminal) then, in accordance with Rule 14(f), the Subscriber (emphasis added): must claim immediately by telegram or by personal application to NSW Lotteries at the address printed on the prize claim form and such telegram or prize claim form must contain or be accompanied by the like particulars set out in Rule 14(h) and be received by NSW Lotteries not later than eight (8) days after the Drawing Date. If that does not occur, Rule 14(f) goes on to provide: A claim received later than eight (8) days after the Drawing Date will be rejected and NSW Lotteries shall have no liability in relation thereto; That Mr. Renshaw claims to have presented a claim more than 8 days late is accepted for the present application not to be fatal to his claim in light of Regulation 4, provided he in fact made a claim by 1 December 2016. (7) If a ticket is presented to claim a prize of less than $1,000.00, but the Computer Linked Terminal does not show it is a winning ticket, a prize claim form must be lodged with the particulars required by Rule 14(h) (Rule 14(g)). (8) Provision is made in Rule 14(i) for winning entries (for any prize) that emerge after all prizes are paid, which can still be paid in the General Manager's "absolute discretion". [Original emphasis. Footnotes inserted into text.]
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. 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. 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. 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. 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.
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. 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. 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. 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".

[26]

Issue (4): Claim in trust

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.
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.
It was contended that there was nothing in the Rules or relevant legislation which created a trust. The defendants submitted the following: 33. The Rules provide that prizes are paid out of a Prize Fund, being an account established under s.14 of the Lotto Act 1979 (Rules 1(xxxix) and 2), later ss.26-27 of the Lotteries Act 1996 at the time of the Oz Lotto Draw no. 188. 34. Section 26 provides for the Minister to nominate an account into which subscriptions are to be paid and permits the Licensee to draw on the account to pay prizes. That money includes any commission payable to the licensee: s.26(3). The fund can include monies that are not prize funds, as only a percentage of the subscriptions are required to be used towards prizes: s.26(1). 35. Section 27 permits the investment of the monies. Otherwise, the monies can only be applied to pay prizes, to reimburse the licensee for any subsidies of the prize fund, to pay amounts due under the licence (i.e. commission or any surplus), to pay the costs of operation of the fund and otherwise. As such, the prize fund is a mixed fund, including monies payable to other prize winners than Mr. Renshaw (if he be one) and to the licensee, and for other purposes.
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.

[29]

Section 52: Disability

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".
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).
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: [Mr Renshaw] was a self-employed mini-crete operator from 2005-2008, and from 2008 to 2011 he maintained Family Court proceedings: Renshaw pars. 26-28. He also says that he realised he may have won the lottery in 2008: Renshaw par. 29. Despite these admissions, Mr. Renshaw did not bring any action before the commencement of these proceedings in late 2016, about 8 years later.
Counsel for the defendants made the following oral submission in reply to the question of Mr Renshaw's disability: The medical material that [Mr Renshaw] refer[s] to, we have had this argument before, we would need to establish that the period from about 2003, which is six years, September 2003 after the events in question, then there would have to be a period of disability not from that point because the events happened in 1997 and he files his claim in late, a period of 19 years. He would have to find a period totally 13 years of relevant disability, claiming complete or substantial impairment of his ability to manage his affairs and the material he relies upon does not support that.

[40]

Section 52: Disability

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. 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. 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. 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. 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. 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. 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. He submitted his incarceration in 2008 for 8 months was as a result of false complaints to the police. 8. Mr Renshaw was diagnosed with squamous cell carcinoma in 2009. 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.

[44]

General Principles in relation to Strike Out Applications

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. discloses no reasonable cause of action; 2. has a tendency to cause prejudice, embarrassment or delay in the proceedings; or 3. is otherwise an abuse of the process of the court (see also r 13.4).
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].
The descriptions for the test for the absence of a cause of action were set out in General Steel as follows (at 129): 1. the claim was "so obviously untenable that it cannot possibly succeed"; 2. "manifestly groundless"; 3. "so manifestly faulty that it does not admit of argument"; 4. "discloses a case which the Court is satisfied cannot succeed"; 5. "under no possibility can there be a good cause of action"; and 6. "be manifest to allow [the pleadings] to stand would involve useless expense".
Similarly, the Court may strike out pleadings in plain and obvious cases: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946.
The Court may strike out pleadings where, for example, a claim is: 1. doomed to fail (Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392); or 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.
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.
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].

[45]

Section 52: Disability

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]): [13] … It seems plainly to apply to the case where there have been periods of intermittent disability which lead to a situation that the date on which the plaintiff last ceased to be under a disability within the period of limitation is a date only shortly before the expiry of the limitation period. That may occur from time to time occur where the disability is due, for example, to disease. In that case, the plaintiff is given the benefit of a maximum of three years from the last occasion on which the disability ceased within the limitation period within which to bring an action.
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): According to the Shorter Oxford Dictionary to "impede" means to obstruct in progress or action; to hinder or to stand in the way of. "Substantially", in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175.
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]): While I would not disagree with Slattery J's view in Kotulski (at 117) that in s 11(3)(b) "substantially" "does not mean trivial or minimal, neither does it mean total", that still leaves open a wide range within which "substantially impeded" might fall. I do not read Slattery J as saying that falling anywhere within that range would suffice.
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]): [151] These cases illustrate how there is always a judgment involved in deciding whether some quality "substantially" exists, and that the process of forming that judgment is dependent on the purpose for which the judgment is to be made. In Palser v Grinling, whether the amount attributable to attendance or use of furniture formed a "substantial portion of the whole rent" would be decided bearing in mind that the consequence of finding that it formed a "substantial portion" was that the tenant had no statutory protection, and the sort of purposes that providing statutory protection for a tenant was intended to achieve. In Tillmans Butcheries, the question of whether the industrial action would cause or be likely to cause "substantial loss or damage to the business of the corporation" clearly required the nature and scale of business of the corporation to be considered, so that one had an appreciation of the scale against which "substantial loss or damage" was to be measured, but as well the purpose of the statutory prohibition contained in s 45D would need to be taken into account. In Dainford v Lam, the percentages of frontage and area that would be lost through the road widening proposal are percentages that, for some purposes, might not be a substantial percentage, but in the context of how they affected a parcel of land being purchased, so far as the purchaser was concerned, they were of a type that ought be regarded as justifying the arising of the right to rescind, and so were substantial. [152] In the present context, whether the plaintiff has been "substantially" impeded is decided bearing in mind the context and purpose for which the court is called on to make the decision. It is for the purpose of deciding whether an as-of-right suspension of a limitation period will arise. It needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period. [153] It is not as though there is a single theme that can be perceived in subpars (i)-(iv) of s 11(3)(b) that could provide assistance in reaching that conclusion. The matters in subpar (i) and subpar (ii) are often matters that are outside the control of the person in question, but not always - something within subpar (i) could arise from deliberately carrying out an activity that had a risk of impairing the person, and being imprisoned could be an indirect consequence of a deliberate decision to commit a crime. Further, subpar (iii) and subpar (iv) would be available to a volunteer soldier as well as to someone involuntarily caught up in a war or its consequences. In situations where there has been more than one contributing cause to the plaintiff failing to start the action within what would otherwise have been the correct limitation period, a court deciding whether the plaintiff has been "substantially impeded" by one of the matters in subpars (i)-(iv) is required to assess the significance that the particular cause that falls within subpars (i)-(iv) has had in the plaintiff's failure to start the action earlier. [Emphasis added.]
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]): [140] In the context in which it occurs in s 11(3)(b), the relevant "affairs" are ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.
Handley JA held in Guthrie that (at [178]): [178] … if a person is able to manage their affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life.
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]).
In Karaagac v GRA Insurance Ltd (Unreported, Court of Appeal of New South Wales, Meagher JA, 26 April 1989), Meagher JA held (at 2): There is no doubt that being in prison must, relevantly, constitute an impediment to the conducting of legal proceedings. The relevant question under s11(3) of the Limitation Act is whether the second period of imprisonment constituted a substantial impediment.
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).

[48]

Claim in Contract

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]): [7] His Honour held that the combined effect of the Public Lotteries Act, the defendant's licence, the Oz Lotto Rules and the Newsagents' agency agreement was that, upon purchase of a ticket, there arose a contract between the player, NSW Lotteries and the newsagent under which the rights and obligations of the parties were those specified by the Oz Lotto Rules. I am satisfied that it is appropriate to proceed on that basis in the present case.
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.
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.
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: [T]icket incorrectly validated by attendant at Granville Railways Newsagency, within week after drawing of Oz Lotto #188 23rd September 1997. All evidence sent to General Manager and now Court Proceedings to legal counsel A Sutherland. In the result, Mr Renshaw has failed to establish that a contract existed.
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.
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: (i) Notwithstanding the provisions of this Rule 14 if an entry which would otherwise have been entitled to a prize is discovered after payment of prizes the General Manager may, in the General Manager's absolute discretion, pay to the Subscriber; (i) in the case of Division 1 such smaller prize as would have been paid if such entry had been taken into account; or (ii) in all other cases the same prize as was paid to winning Subscribers.
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.
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.
I do not accept that any re-pleading of the claim in contract would rectify the cause of action in contract.

[55]

Section 52: Disability

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.
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.
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.
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.
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.
It was also pleaded that in 2009, Mr Renshaw was diagnosed with squamous cell carcinoma which may have extended the limitation period until 2012.
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.
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. he reported slow mental functioning following the workplace injury in 2000; 2. he has been diagnosed with dyslexia; and 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.
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.
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].
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

[59]

Whether pleadings can be struck out as a result of a limitation defence(all causes of action)

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.
That question requires the consideration of the principles arising from the relevant authorities bearing upon the question.
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.
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.
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): [I]t is contrary to established practice to accede to an application to strike out a pleading when the ground relied upon is that the defendant has a defence under a statute of limitations. Nevertheless, where there is a very clear defence under the statute, the defendant may seek to strike out the claim for relief upon the ground that it is frivolous and vexatious: Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398, at pp. 404-5 and 408. An application for this purpose may be supported by evidence, but in the absence of evidence may be determined on the face of the pleading.
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): If no inference of the types referred to above may be properly drawn adverse to a plaintiff from the sole fact that a defence that the claim may be statute-barred appears to be open on the face of the documents, then it should not be required for that plaintiff to justify the proceedings prior to the delivery of any defence, particularly, in a case where some form of equitable fraud or acknowledgment of debt may be relied upon. Once the pleadings are before the court it is, of course, a very different matter. Prior to that stage being reached, unless there is something more upon which the inference could arise, the plaintiff should not be called upon to demonstrate that his claim is not an abuse of process.
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").
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): (1A) An action for damages for negligence … where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from the date on which the person first knows: (a)that he has suffered those personal injuries; and (b)that those personal injuries were caused by the act or omission of some person.
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): Section 63 in terms purports to extinguish the right in the underlying cause of action. However, for so long as it remained open to Rock and Brandon to bring an application under s 58, s 60F, s 60G or Sch 5 to extend the limitation period such extinguishment as occurred was not absolute and the Commonwealth did not obtain an absolute right of immunity. Additionally, in order to claim the benefit of the extinction in any proceedings it is necessary to plead the extinguishment of the right and title under s 63: s 68A(1) of the NSW Act. Thus, in the absence of a plea of extinguishment, Rock and Brandon would be free to litigate their causes of action against the Commonwealth as if s 63 had no operation in respect of their individual rights. Where the limitation period is extended under Div 3 of Pt 3 of the NSW Act, the prior expiration of the limitation period has no effect for the purposes of that Act: s 61. Taken literally, s 61 operates to annul the prior extinguishment of the right or title in and to the causes of action: Commonwealth v Dixon at NSWLR 610, 612. However, in my opinion, the effect of ss 61 and 68A is to postpone the absolute extinguishment until the expiration of the period to apply for an extension of the limitation period, or, to the time when the plea of extinguishment is properly raised, whichever is the later. Until that time Rock and Brandon retain a sufficient title to progress the litigation to a determination on the merits in the absence of a plea, or, to remove the fetter on the title caused by the expiration of the limitation period, the operation of s 63A and the plea of extinguishment by the obtaining of an order for extension of the period. [Emphasis added.]
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.
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.
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.
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.
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.
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.

Renshaw v New South Wales Lotteries Corporation Pty Ltd

At a glance

Court

Decision date

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Judgment (64 paragraphs)

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Legislation Cited (8)

Cases Cited (27)

Cited By (7)