Clemett, Robert v New South Wales Lotteries Corporation Pty Ltd [2011] NSWSC 121 (24 February 2011)

Last Updated: 27 May 2011

Supreme Court New South Wales

Case Title:	Clemett, Robert v New South Wales Lotteries Corporation Pty Ltd
Medium Neutral Citation:	[2011] NSWSC 121
Hearing Date(s):	Wednesday, 15 December 2010
Decision Date:	24 February 2011
Jurisdiction:
Before:	HOEBEN J
Decision:	Subject to conditions to be agreed between the parties: Discovery pursuant to UCPR 5.3 of the computerised record of all entries in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfields Park Newsagency between the hours of 1pm and 3pm on each of 17, 18 and 19 September 1997. Discovery pursuant to UCPR 5.3 of the computerised record of all tickets issued in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfields Park Newsagency between the hours of 1pm and 3pm on each of 17, 18 and 19 September 1997 with a ticket serial number ending in 13298.
Catchwords:	PRACTICE AND PROCEDURE - application for preliminary discovery - plaintiff alleges purchase of winning Oz Lotto ticket - whether Rule 5.3 UCPR tests satisfied - effect of inconsistencies in supply of particulars by plaintiff - appropriate form of orders.
Legislation Cited:	Limitation Act 1969 (NSW). NSW Lotteries Corporation Act 1996 (NSW) Public Lotteries Act 1996 (NSW). State Owned Corporations Act 1989 (NSW)
Cases Cited:	Hatfield v TCN Channel 9 Pty Ltd [2010] NSWCA 69 Hurley v McDonald's Australia Ltd (1999) FCA 1497 Ian Edward Morton & 5 Ors v Nylex Ltd & 1 Or [2007] NSWSC 562 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399 Perpetual Nominees Ltd v Parist Holdings Pty Ltd [2005] NSWSC 1345 Reinhold v NSW Lotteries Corporation [2008] NSWSC 5 St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147
Texts Cited:
Category:	Interlocutory applications
Parties:
Representation
- Counsel:	Counsel: Mr D Villa - Plaintiff Mr J Hogan-Doran - Defendant
- Solicitors:	Solicitors: Eakin McCaffery Cox - Defendant
File number(s):	2010/138776
Publication Restriction:

Judgment
Nature of Proceedings

1. The plaintiff moves by a Further Amended Summons for preliminary discovery under Rule 5.3 of the Uniform Civil Procedures Rules 2005 (UCPR) as follows:
   

1. Discovery pursuant to UCPR Rule 5.3 of the computerised record of all entries in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfields Park Newsagency between the hours of 1pm and 3pm on each of 17, 18 and 19 September 1997.

2. Discovery pursuant to UCPR Rule 5.3 of the computerised record of all tickets issued in Oz Lotto Draw No 188) which lottery was drawn on 23
September 1997) made through the Greenfields Park Newsagency with a ticket serial number ending in 13298.

Factual Background

2. Unless otherwise indicated, and for the purposes of this interlocutory application only, I find the facts to be as follows.
   
3. In 1997 the defendant (NSW Lotteries) was an entity incorporated pursuant to s5(1) of the NSW Lotteries Corporation Act 1996 (NSW) and a statutory state owned corporation within the meaning of the State Owned Corporations Act 1989 (NSW). NSW Lotteries was purchased by Tattersalls Holdings Pty Limited a wholly owned subsidiary of Tatts Group Ltd on 31 March 2010.
   
4. NSW Lotteries was licensed to conduct public lotteries pursuant to licences from the Minister administering the Public Lotteries Act 1996 (NSW). Pursuant to that Act, NSW Lotteries was required to make rules in relation to the conduct of its public lotteries. NSW Lotteries conducted a number of lottery games in NSW and the Australian Capital Territory including Oz Lotto, Lotto, 6 From 38 Pools, Draw Lotteries, Powerball, Soccer Pools and Instant Scratchies. Oz Lotto was a nationwide lottery game in which all State Lotteries participated. Tattersalls Sweeps Pty Ltd (Tattersalls) in Melbourne now conducts and supervises Oz Lotto draws on behalf of all State Lotteries.
   
5. Oz Lotto draw number 188 took place on 23 September 1997. The prize for Division 1 was $10,000,000. There were three winning entries. One winner had pre-registered and was paid. One unregistered winner came forward to claim his or her prize. A third unregistered winner did not claim his or her $3.3 million share of the prize. It is this unclaimed prize money which is the subject of the claim by the plaintiff.
   
6. On 24 July 2001 the Channel 9 program "A Current Affair" broadcast a segment on unclaimed prizes for lotteries. The unclaimed Division 1 Oz Lotto prize for draw 188 was referred to in the broadcast. The broadcast revealed that the Greenfields Park Newsagency was the seller of the winning entry and the numbers on the winning entry were provided. This broadcast prompted a number of claims from persons who claimed to be the owner of the unclaimed prize money. None could produce a winning ticket or establish their entitlement.
   
7. Approximately two weeks after the Channel 9 broadcast, NSW Lotteries received a letter dated 7 August 2001 from the plaintiff claiming that he was entitled to the unclaimed prize money from Oz Lotto draw 188. In that first letter the plaintiff claimed to have made the winning entry at the Greenfields Newsagency at approximately 1.30pm on Monday, 22 September 1997. As a result of that letter, NSW Lotteries investigated the details provided by him in relation to his claim. NSW Lotteries concluded that the details provided did not match the details of the Division 1 prize winning entry. NSW Lotteries advised the plaintiff to that effect by letter dated 3 October 2001 and gave reasons in that letter for why it had reached that conclusion.
   
8. On 6 October 2001 the plaintiff wrote a further letter stating that he had completed his entry form on Wednesday, 17 September 1997 at 2.34pm. The plaintiff attached to that letter a NSW Lotteries Prize Claim form.
   
9. Since that time NSW Lotteries has engaged in extensive correspondence with the plaintiff and has held meetings with him in relation to his claim. Included in the papers before the Court was exhibit "SJM-1" in an affidavit of Mr Stuart McNamara, sworn 8 October 2010. Pages 64-71 of the exhibit set out a schedule in summary form of each piece of correspondence received from the plaintiff between 7 August 2001 and 3 February 2009. In relation to each letter the schedule provides its date, the date on which the ticket is alleged to have been purchased, the time of purchase alleged, the type of ticket, the price paid, the number of games played and the Ticket Serial Number (TSN). There is also a commentary which summarises other details provided in those letters. The plaintiff has written over 50 letters to NSW Lotteries, comprising more than 2000 pages. In addition, some letters have been sent by his solicitors from time to time.
   
10. NSW Lotteries says that they carefully considered each letter provided by the plaintiff. It says that on no occasion did the details provided by him match the details of the unclaimed Division One prize winning entry. When NSW Lotteries advised the plaintiff that it had concluded that he did not purchase the winning entry, and accordingly was not entitled to the unclaimed prize, he refused to accept those findings and continued to make claims using the same details as he had previously provided. From 7 June 2007 the plaintiff's letters were not reviewed nor replied to by NSW Lotteries.
    
11. An examination of the letters sent by the plaintiff over those years reveals considerable inconsistencies in the information and details provided, particularly as to the date and time of purchase, the type of ticket, the price paid and the TSN.
    
12. In an affidavit sworn 15 November 2010 the plaintiff responded to those assertions and set out the basis for this application. Since most of the matters raised by the plaintiff are relevant to this application, I set out paragraphs 4 -7 of that affidavit:
    

"4 The events that may give rise to a claim by me against the NSW Lotteries arising out of the Oz Lotto Draw 188 occurred more than 13 years ago. On each occasion that I have informed NSW Lotteries that I purchased my Oz Lotto ticket on a particular date, I honestly believed at the time that the date was correct. I now believe that the date that I purchased the ticket was Friday, 19 September 1997. However, I am prepared to accept that I may be mistaken about this and that I may have purchased the ticket on either the Wednesday or the Thursday beforehand. I no longer believe that I purchased the ticket on Monday, 22 September 1997.

5 Similarly, on each occasion that I have informed NSW Lotteries that I purchased my Oz Lotto ticket at a particular time, I honestly believed at the time that the time of purchase was correct. However, I am prepared to accept that I may be mistaken as to the precise time, but I am confident that it was sometime in the early afternoon between the hours of 1pm and 3pm.

6 I am confident that the serial number for the ticket ends with the numbers 13298. I am confident of that because in about February 1998 I wrote those numbers down in a receipt book. A copy of the relevant page of the receipt book is annexed and marked "A" to this affidavit. I accept that I may be mistaken about the precise sequence of other numbers and letters in that serial number.

7 I understand that in the usual course NSW Lotteries requires a person to present an original lottery ticket in order to claim a prize. I no longer have in my possession the lottery ticket that I purchased in September 1997. In order for me to determine whether or not I will be able to successfully prove my claim for the prize money, and therefore whether I should invest my time and money in pursuing my claim, I need to ascertain whether or not the NSW Lotteries holds documents that will corroborate my evidence that:

a. I purchased a ticket on (probably) 19 September 1997 between the hours of 1pm and 3pm;

b. I purchased a ticket with a serial number that ended in 13298."

13. Further information concerning the plaintiff's claim is contained in his letters to NSW Lotteries. In the letter of 7 August 2001 the plaintiff said that when he purchased the ticket in September in 1997 he was very upset about the likelihood of losing his home and was due to have heart bypass surgery on 6 October 1997. He said that his illness prevented him from realising that the Oz Lotto draw was on Tuesday 23 September and that he did not check whether he had the winning ticket. He said that he retained the ticket until February 2000 when he moved into Housing Commission premises. He said that he packed the ticket with his personal effects but had not seen it since that time. It was only when he saw the Channel 9 program that he remembered the ticket and unsuccessfully looked for it.
    
14. On 30 January 2008 Barrett J handed down judgment in Reinhold v NSW Lotteries Corporation [2008] NSWSC 5. In that matter it was found that a newsagent had wrongly cancelled a multi-week ticket that had been issued to a Player, as a result of which the Player missed out on his entitlement to a prize. Mr Reinhold was awarded damages equivalent to his prize.
    
15. On 12 February 2008 the plaintiff wrote to the Attorney-General of NSW alleging that the newsagent had cancelled a multi-week ticket that he had applied for. Such an allegation had not been made before that date. In that letter the plaintiff specifically referred to the Reinhold decision.
    
16. In order to understand the plaintiff's claim, it is necessary to set out some of the provisions of the Oz Lotto Rules, noting that references to the "Licensee" are references to NSW Lotteries and references to "the Agent" are references to the newsagent.
    
17. The Rules expressed themselves to have effect as follows:
    

Rule 16(a):

"By entering a Game of OZ Lotto or a game of Promotional Oz Lotto a Player or Syndicate Player acknowledges that he or she has entered into an agreement with the Licensee and the Agent and agrees to be bound by the provisions of these Rules which subsist for the benefit of the Licensee, Directors, the Chief Executive Officer, the Agent and all Employees thereof."

18. Allocation of and entitlement to prizes under the Oz Lotto Rules is by reference to "Entries" in that a particular prize is expressed to be payable "in respect of" of a particular "Entry". Rules 12(a) and 12(b) provide:
    

"(a) Prizes for each Game of OZ Lotto shall be paid by the Licensee from the Prize Pool in the percentage specified in this Rule and shall be classified as Division One, Division Two, Division Three, Division Four and Division Five Prizes.

(b) Any such Prize shall, where only one Entry or (Syndicate Entry) is eligible for that Prize, be payable in respect of that Entry or (Syndicate Entry), or shall, where (2) or more Entries and/or Syndicate Entries are eligible for that Prize, be shared equally between those Entries and/or Syndicate Entries."

19. Entry is defined to be:
    

"Entry means the Numbers in a Game of OZ Lotto which have been recorded in the central processing computer equipment, which have been selected by way of an Entry Form or Automatic Entry which (subject to Rule 6(e)) have been imprinted on the same numbered line on a Ticket, and in respect of which a Fee has been paid."

20. The existence of a "Ticket" and the payment of a "fee" are matters essential to the existence of an "Entry". The expression "Ticket" is defined:
    

""Ticket" means the receipt, whether it be in documentary, electronic or other form, which is the official confirmation that a Player has submitted an Entry in a game of OZ Lotto or a Syndicate Player holds a Syndicate Entry Share in a Game of OZ Lotto and which:

(i) contains Entry or Syndicate Entry details; and

(ii) may include a Ticket Serial Number and other such security tests to determine the identity, validity and status (including Prize entitlement) of the Ticket; and

(iii) may include other particulars such as, where appropriate, Syndicate Entry Share details."

21. As can be seen, the allocation of and the entitlement to prizes under the Oz Lotto Rules is by reference to "Entries" although the ability to produce a "Ticket" and to quote its TSN is usually a prerequisite to actually obtaining a prize. When the entry form is processed, it generates a receipt which records the numbers that it has recorded on the system and the receipt is given a unique identifying serial number (TSN). Accordingly, there is only one identifying number on the ticket which is the TSN.
    
22. In summary, the process of playing Oz Lotto in 1997 involved the following steps:
    

(a) Persons intending to participate in an Oz Lotto draw were required to fill in an entry form. Those that had done so were referred to as "Subscribers";

(b) Entry forms were available from various places including agents of NSW Lotteries, such as newsagencies. They could be submitted only through an agent or by post to NSW Lotteries.

(c) The entry form comprised various squares, each with 45 numbers.

(d) Each square was referred to as a "game" that the Subscriber could "play".

(e) To play a game, the Subscriber had to choose six numbers from the numbers available in each game square.

(f) The Subscriber could choose to play up to 12 games per entry form.

(g) The Subscriber's entry form was submitted to the agent who processed the entry form using a "Computer Linked Terminal" connected to NSW Lotteries. The agent then supplied the Subscriber with a ticket recording the relevant details, ie number of games, number combinations chosen, price and also a TSN.

(h) A Subscriber could choose to register himself or herself and so become a Registered Subscriber. A Subscriber who was not a Registered Subscriber, could only play a "Standard" entry game.

(i) A registered player had the option to play multi-week games, ie to have his or her 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.

(j) The number of games played and the number of weeks for which they were played affected the price paid for the ticket.

(k) The "Drawing" was conducted by the random selection of six numbers, ie the "Winning Numbers" (being the first six numbers drawn for each game as well as two further numbered balls known as the "Supplementary Numbers".

(l) Any person who had played a game by choosing the same combination of six numbers as the winning combination was entitled to a share of the "Division One Prize". 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 upon the provision of prizes for the draw (eg choosing one of the winning five numbers plus one of the supplementary numbers entitled the Subscriber to a Division Two prize.) If there were more than one winner, the winners would share the prizes pro rata. If there were no winner of a prize, the prize could be retained to "jackpot" into future Drawings.

(m) The winning numbers would be notified to the media, together with other information including the method for Subscribers to claim prizes.

23. Rule 14 of the Oz Lotto Rules set out the procedures for claiming a prize. The particular Oz Lotto Rules which were relevant to the plaintiff's claim were:
    

"14(a)(i) Other than as provided for Registered Subscribers, all prizes exceeding $1,000 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;"

If a prize were in excess of $1,000 Rule 14(e) provided that:

"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. ..."

If a Subscriber claimed to be entitled to a Division One prize and he or she had not been notified of that entitlement, then in accordance with Rule 14(f) the Subscriber:

"... 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.

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;"

Rule 14(h) specified the relevant particulars to be:

"(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 or information as NSW Lotteries requires;"

Provision was made in Rule 14(i) for late claimants (ie after the prize fund has been divided up between entitled Subscribers who claimed within the time period specified). Rule 14(i) provided:

"14(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;"

24. In January 2011 a quantity of material was received directly from the plaintiff. That material was unsolicited by the Court and was sent without the knowledge and consent of the defendant. I have not read that material and it has played no part in the preparation of this judgment.
    

Submissions and consideration

25. Before these proceedings the plaintiff has not in terms articulated the nature of his claim. In this application he was represented by counsel provided in accordance with Rule 7.37 UCPR, ie pro bono representation as arranged by the Court. Counsel for the plaintiff articulated his claims as follows:
    

(i) A claim in contract on the basis that the ticket that was issued to him was in fact the ticket that NSW Lotteries currently records as being the ticket entitled to the $3.3 million which is unclaimed.

(ii) A claim for breach of contract on the basis that while a ticket was issued to the plaintiff entitling him to participate in the Division 1 prize, but that ticket was subsequently cancelled without his authority so that NSW Lotteries does not currently record it as a ticket entitled to participate in the prize.

(iii) A claim in negligence in failing to properly maintain its computer equipment or alternatively, in failing to ensure that its staff and Agents followed its specified procedures in relation to recording entries and tickets.

26. Against the background of those causes of action, the plaintiff submits that he comes within the provisions of Rule 5.3 UCPR. That rule relevantly provides:
    

"5.3(1) If it appears to the Court that:

(a) the applicant may be entitled to make a claim for relief from the Court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned.

The Court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. ..."

27. The plaintiff appreciates the confidential nature of the documents which are being sought. In that regard he accepts that if he is successful in this application, the documents will not be produced to him but only to his counsel and that there will undoubtedly be conditions attached to how much information his counsel can pass onto him concerning those documents.
    
28. The plaintiff submits that the apparent inconsistencies in the various submissions which he has made to NSW Lotteries is adequately explained by the effluxion of time and the illnesses which he has suffered, particularly in the period when he participated as a player in Oz Lotto.
    
29. He submits that in accordance with Rule 5.3 UCPR there is sufficient material before the Court to establish that he "may be entitled to make a claim for relief from the Court". He submits that the correspondence in exhibit "SJM-1" amply demonstrates that he has made reasonable inquiries. He submits the consistent denials by NSW Lotteries in response to that correspondence demonstrate that he has been unable to obtain sufficient information to decide whether or not to commence proceedings against it. On the basis of his affidavit of November 2010, he submits that the documents which he has sought in the Summons are documents which the defendant might have and that such documents could assist in determining whether he is entitled to make a claim for relief. On that basis, he submits that the inspection of those documents would assist in making that decision. In essence he submits that the document or documents sought by him are directly relevant to his capacity to prove his case and therefore whether he has a case of sufficient strength to justify the commencement of proceedings.
    
30. The plaintiff submits that if there were an entry processed during the periods of time specified in the Summons, which had a TSN whose last five numbers were 13298, an inference would be available that there must have been something that had either gone wrong with the computer system or with the procedures of NSW Lotteries which resulted in that entry no longer being recorded as a winning ticket. In that regard the plaintiff refers to the receipt book, exhibit 1, which appears to contain entries which were made in 1998/99 and which had those five numbers recorded on it. The plaintiff submits that his application is more than a fishing expedition in that he has specified three dates, a precise range of times on those dates and specific numbers forming part of a TSN.
    
31. NSW Lotteries challenges the proposition that the plaintiff may be entitled to make a claim for relief against it. It submits that the inconsistencies in correspondence extending over eight years are such as to make it clear that the plaintiff does not have such a claim for relief. It submits that when it has investigated the details provided from time to time to it by the plaintiff, those details have never been consistent with him having made a winning entry.
    
32. Alternatively, NSW Lotteries submits that the plaintiff's claim in contract cannot be made out because of his failure to comply with Rule 14(f) and make a claim not later than eight days after the Drawing Date. In that regard the plaintiff's claim form was not submitted until 6 October 2001. NSW Lotteries also relies on the failure of the plaintiff to provide the information required by Rule 14(h). It notes that Mr Reinhold had failed in that part of his claim which relied upon the enforcement of a contract (for breach of the rules) even though he had made his claim within the specified eight day period.
    
33. NSW Lotteries submits that the plaintiff obtains no assistance from Rule 14(i) which made it clear that NSW Lotteries had no legal obligation to pay the unclaimed prize. It submits that there is an absolute discretion as to whether to pay the unclaimed prize or not. It relies upon Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 (Giles J) and Hurley v McDonald's Australia Ltd (1999) FCA 1497 (Dowsett J) to support that proposition. NSW Lotteries submits that the conferral of such a discretion does not give rise to any legal obligation. ( Perpetual Nominees Ltd v Parist Holdings Pty Ltd [2005] NSWSC 1345 (Brereton J) at [26].)
    
34. In summary, NSW Lotteries submits that the plaintiff simply cannot succeed in his claim to enforce any contract which may have existed between himself and NSW Lotteries. As a result it submits he cannot satisfy the R 5.3 UCPR test.
    
35. NSW Lotteries relies upon the same arguments to answer the plaintiff's claim for breach of contract should there have been some unauthorised cancellation of an entry properly made by him in the relevant Oz Lotto game. It submits that the cause of the plaintiff's loss does not arise from any breach of contract but from his failure to make his claim within the time period specified and according to the method specified in the rules.
    
36. NSW Lotteries relies upon the Limitation Act 1969 (NSW). NSW Lotteries submits that both the plaintiff's claim in contract and claim for breach of contract are outside the six year period provided for under the Act. It submits that the start point for the six year limitation period is either 3 October 2001 when the plaintiff's claim was first refused or alternatively, 28 August 2002 when the solicitors for NSW Lotteries provided a detailed response to the plaintiff's claims and rejected them.
    
37. In summary, NSW Lotteries submits that this application should be refused. The causes of action raised by the plaintiff have no prospects of success.
    
38. NSW Lotteries raises another issue which it submits is relevant to this application. It submits that if the plaintiff's application is successful, and he obtains access to the documents which he seeks, on its investigations these documents will not assist him in determining whether he is entitled to make a claim. In those circumstances, NSW Lotteries submits that it will be confronted by a succession of applications of a similar kind seeking access to different documents on each occasion. It bases this submission on the mass of correspondence which it has received from the plaintiff despite its detailed refutation of his claims.
    
39. In response the plaintiff has no real answer to the absolute discretion point raised by NSW Lotteries insofar as his claim in contract is concerned. In relation to the claim for breach of contract, however, the plaintiff submits that the causation argument raised by NSW Lotteries is at best arguable and does not conclusively shut out that kind of claim. The same applies to the claim in negligence.
    
40. In relation to the point taken by NSW Lotteries based on the Limitation Act , the plaintiff submits that there are a number of possible responses. His state of health may well involve a postponement of the bar. Alternatively, issues of estoppel and unconscionability might arise in that as late as May 2005 NSW Lotteries was saying "If you can supply the ticket number we will consider your claim for the prize". Such statements were capable of misleading the plaintiff into a belief that a limitation point would not be taken against him.
    

Consideration

41. The requirement under Rule 5.3 UCPR is less stringent than that under the Federal Court Rules. All that has to be established is that the plaintiff may be entitled to make a claim for relief, not that he has a "reasonable cause". In Ian Edward Morton & 5 Ors v Nylex Ltd & 1 Or [2007] NSWSC 562 White J, following Young CJ in Eq in Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399 said at [25]:
    

" 25 The first of the requirements in r 5 3(1)(a) is that it appear to the Court that the applicant may be entitled to make a claim for relief against the prospective defendant. In order for it to "appear" to the Court that the applicant "may be entitled" to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case. On the other hand, the mere assertion of a case is insufficient. It will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground."

42. More recently the applicable principles were comprehensively summarized in Hatfield v TCN Channel 9 Pty Ltd [2010] NSWCA 69 at [47] - [52] where McColl JA said:
    

"47 First, "[i]n order for it to 'appear' to the Court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case": Morton v Nylex (at [25]).

48 Secondly, while "the mere assertion of a case is insufficient...[i]t will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground" : Morton v Nylex (at [25]).

49 Thirdly, "belief requires more than mere assertion and more than suspicion or conjecture. [It] is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action": St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 (at [26](d)) per Hely J, referring in turn to John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 (at [13], [14], [17] and [73]) per Emmett J. The use of the word "may" indicates the court does not have to reach "a firm view that there is a right to relief": Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64 (at [58]).

50 Fourthly, the requirement that the matters set out in UCPR 5.3 "appear[s]" to the court to establish an entitlement to an order under the rule may be wider than the requirement in the Federal Court Order 15A r 6 that there "is reasonable cause to believe": see Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399; (2006) 69 IPR 595 (at [22]) per Young CJ in Eq; Papaconstuntinos v Holmes Court [2006] NSWSC 945 (at [17] per Simpson J; Hornsby Shire Council v Valuer General of NSW [2008] NSWSC 1179 (at [33]) per Adams J. Nevertheless Hely J's statement in St George Bank Ltd (at [26](e)) remains apposite, namely that "whilst uncertainty as to only one element of a cause of action might be compatible with the 'reasonable cause to believe' required by subparagraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe".

51 Fifthly, "the question posed by [UCPR 5.3(1)(a)] ... is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent [but]... whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences": St George Bank Ltd (at [26](f)) (emphasis in original); see also Morton v Nylex (at [33]). Thus application of the rule will not be precluded by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief, as there might be matters of defence which could defeat a prima facie case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500 (at [41]) per Lindgren J; referred to with approval by the Full Federal Court (French, Weinberg and Greenwood JJ ) in Telstra Corp Ltd (at [60]).

52 Sixthly, as Hely J said in St George Bank Ltd (at [26](a)), "the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case"."

43. It is then necessary to apply those principles to the facts of this case. Most particularly it needs to be kept in mind that in order for it to "appear" to the Court that the plaintiff "may be entitled" to make a claim for relief, there needs to be more than a mere assertion and more than suspicion or conjecture. There needs to be an inclination of the mind towards assenting to rather than rejecting a proposition. It is not sufficient to point to a mere possibility.
    
44. In relation to the plaintiff's claim in contract, I am not persuaded that the test has been satisfied. In the particular circumstances of this case where the rules lay down certain procedures, the failure of the plaintiff to make a claim within the specified time and to otherwise comply with the rules, seems to me to be fatal to that aspect of his claim.
    
45. The situation is, however, otherwise in relation to his claim for breach of contract and in negligence. Those claims presuppose that the plaintiff entered the Oz Lotto competition for Draw 188 as he says and received a TSN. Thereafter, for reasons which he cannot explain, something occurred either by way of cancellation or otherwise which led to NSW Lotteries not recording a ticket with a TSN entitling him to participate in the Division 1 prize. His evidence in support of that case is his own testimony and perhaps that of a friend (although his assertions in correspondence leave unclear the extent to which his evidence in that regard can be corroborated) and exhibit 1, which of itself also depends very much upon his own evidence. The claims in breach of contract and negligence are not blocked by the rules in the same way as the claim in contract. The causation argument is not decisive and depends on facts not yet before the Court.
    
46. NSW Lotteries has raised a defence under the Limitations Act to that part of the plaintiff's claim. It cannot be said at this time that this defence must succeed. As was pointed out in argument, it is possible that some estoppel issues could be raised successfully by the plaintiff. Similarly, it is possible that his state of health could operate to postpone the bar thereby rendering his claim within time. There is not enough evidence before the Court at the present time to decide those issues.
    
47. The biggest problem for the plaintiff in respect of that aspect of his claim, arises from the lack of consistency in the details provided by him over the years in his correspondence with NSW Lotteries. These inconsistencies are significant. In correspondence and submissions he explains these inconsistencies by the amount of time which has passed, his physical state of health at the time and his emotional state. There was insufficient evidence before the Court in relation to these last two matters for me to reach any conclusive decision in that regard. It is, however, not without significance that in his earliest correspondence with NSW Lotteries he does refer to health problems and emotional upset.
    
48. The matter is finely balanced. Minds could legitimately differ as to whether the plaintiff has satisfied the test of producing an inclination of the mind towards assenting to rather than rejecting the proposition that he may be entitled to make a claim for relief. What I have found decisive is the observation by Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 that the words and the rule are to be beneficially construed and given the fullest scope that their language will reasonably allow.
    
49. The situation with which the Court is now confronted is somewhat different to that which NSW Lotteries has dealt with over the years. The plaintiff has now committed himself to three dates and a comparatively narrow range of time on each of those dates as to when he completed the entry form at the newsagency. He had provided further detail as to his recollection of the concluding five numbers of the TSN being 13298. This information has been provided under oath in an affidavit. While the plaintiff has in the past purported to provide precise information on those issues to NSW Lotteries, he has not previously done so under oath.
    
50. I have concluded that if a computerized record exists of a ticket issued during the specified timeframe with a TSN ending in those numbers, that should allow counsel for the plaintiff to provide him with advice as to whether he is entitled to make a claim for relief against NSW Lotteries.
    
51. For those reasons, and with considerable reservation, I have concluded that the plaintiff is entitled to orders for preliminary discovery modified as I have indicated.
    
52. It seems to me that the extent of the discovery sought by the plaintiff is wider than the evidence justifies. I cannot see why NSW Lotteries should discover the computerized record of all tickets issued in Oz Lotto Draw 188 made for the Greenfields Park Newsagency with a TSN ending in 13298. This is because the plaintiff has restricted the time during which such tickets would have been issued to 17, 18 and 19 September 1997 between the hours of 1pm and 3pm.
    
53. I am of the opinion that the orders made in favour of the plaintiff in relation to preliminary discovery should be based on the information provided by him in his affidavit of 15 November 2010 but should not go further than that. Accordingly, I have no difficulty with order 1, which is consistent with the information provided in the affidavit. Order 2 is, however, for the reasons indicated wider than what is justified by the plaintiff's affidavit evidence. I propose to modify order 2 so that it accords more closely with the plaintiff's affidavit evidence.
    
54. Accordingly, I propose to make orders for preliminary discovery in favour of the plaintiff. I have set out below the form of those orders. At this stage, I will not make final orders to allow the defendant to consider and to formulate appropriate conditions under which any documents produced in response to those orders will be made available. Obviously one of those conditions will be that any such documents are to be made available to Mr Villa, counsel for the plaintiff, and not to the plaintiff personally. There will also need to be conditions as to the extent to which Mr Villa can communicate the content of any such documents to the plaintiff.
    
55. Subject to those conditions, the orders which I propose to make in due course are:
    

1. Discovery pursuant to UCPR 5.3 of the computerised record of all entries in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfields Park Newsagency between the hours of 1pm and 3pm on each of 17, 18 and 19 September 1997.

2. Discovery pursuant to UCPR 5.3 of the computerised record of all tickets issued in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfields Park Newsagency between the hours of 1pm and 3pm on each of 17, 18 and 19 September 1997 with a ticket serial number ending in 13298.

56. The parties should also have the opportunity to make submissions as to costs. My current inclination, however, is to order that each party pay his or its own costs of this application.
    

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