Renshaw v New South Wales Lotteries Corporation Pty Ltd

[2019] NSWSC 537

Supreme Court

New South Wales

Medium Neutral Citation:	Renshaw v New South Wales Lotteries Corporation Pty Ltd [2019] NSWSC 537
Hearing dates:	09 May 2019
Date of orders:	09 May 2019
Decision date:	09 May 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Dismiss orders 1 and 2 of the Amended Notice of Motion filed by the plaintiff on 26 March 2019. (2) Grant leave to the plaintiff to amend paragraphs 1 and 2 setting out the relief claimed in the Fourth Amended Statement of Claim, in this way with respect to both paragraphs, namely to add at the end of the existing paragraphs the following words, "Pursuant to s 68 of the Fair Trading Act 1987 (NSW) and/or s 82 of the Trade Practices Act 1974 (Cth) and/or as an order pursuant to s 87(2)(d) of the Trade Practices Act 1974 (Cth)". (3)   Order that the plaintiff file and serve a Fifth Amended Statement of Claim containing these amendments on or before 4pm, 17 May 2019. (4)   Order the defendants to file and serve any Defences upon which they propose to rely on or before 4pm, 14 June 2019. (5)   Order the plaintiff to file and serve any Reply to those defences by 5pm, 5 July 2019. (6)   Stand over the plaintiff's Notice to Produce directed to the defendants to 15 July 2019. (7)   Stand over the balance of the Amended Notice of Motion to 15 July 2019. (8)   Direct that the proceedings, including all outstanding interlocutory proceedings, be listed for directions before the Registrar at 9am on 15 July 2019. (9)   Order that the costs of the Amended Notice of Motion to date be the costs in the cause. (10)   Grant the parties liberty to apply on three days' notice.
Catchwords:	CIVIL PROCEDURE – whether to make another order pursuant r 7.36 of the Uniform Civil Procedure Rules 2005, for legal assistance after assistance was not offered initially – whether to grant leave to amend statement of claim to include provisions of the Limitation Act 1969 – whether to grant leave to amend statement of claim to include the cause of action relied upon is for damages when the defendant is already on notice
Legislation Cited:	Fair Trading Act 1987 (NSW) Limitation Act 1969 Trade Practices Act 1974 Uniform Civil Procedure Rules 2005
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	David Owen Renshaw (P) New South Wales Lotteries Corporation Pty Ltd (D1) State of NSW (D2)
Representation:	Counsel: In person (P) J D Hogan-Doran (D1, D2)   Solicitors: Cornwalls (NSW) (D1, D2)
File Number(s):	2016/328586
Publication restriction:	Not Applicable

EX TEMPORE Judgment

1. By an Amended Notice of Motion filed on 26 March 2019, the plaintiff, Mr David Owen Renshaw, seeks orders with respect to the proceedings which he commenced in 2016 against two defendants, the New South Wales Lotteries Corporation and the State of New South Wales.

2. In these proceedings, Mr Renshaw claims that he is the winner of an unclaimed prize of $3.34M from an Oz Lotto draw 188 conducted on 23 September 1997.

Pro Bono Order

3. The first order sought in the Amended Notice of Motion is one for the provision, by referral, to the Pro Bono Panel pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (“UCPR”), of legal assistance. The Court previously, on 7 March 2019, made such an order. I am informed by Mr Renshaw that the relevant officer of the New South Wales Bar Association has corresponded with him by email indicating that the Association is not in a position to provide any further pro bono assistance to him.

4. In my view, given that the Court has made an order and no further assistance can be made available to Mr Renshaw, nothing is to be served by making a similar order again. Nothing was put before the Court to suggest that there would be a different outcome. In light of that futility, I decline to exercise my discretion to make such an order.

Limitation Amendment Order

5. Order 2 of the Amended Notice of Motion sought leave from the Court to amend the Fourth Amended Statement of Claim by including pleadings which call up, and rely upon, s 55(1)(a) and s 55(1)(b) of the Limitation Act 1969 (the “Limitation Act”). Section 55 of the Limitation Act is one of a number of provisions of that Act which are available to a plaintiff to rely upon to extend a limitation period. It is unnecessary to set out the terms of those sections but, speaking generally, they deal with circumstances in which a cause of action is based on fraud or deceit, or the cause of action has been fraudulently concealed.

6. The application of s 55 and the postponement of a bar created by or under the Limitation Act is a matter which first requires a pleading by the defendant, or defendants in this case, of their reliance upon one or more provisions of the Limitation Act. Such a pleading would need to be included in a defence, and would need to make explicit the particular limitation period which is relied upon by a defendant, the legal basis for the existence of such a limitation period and, by way of particulars, the facts which demonstrate that such a defence is a viable one.

7. It is entirely a matter for any defendant before this Court to decide for itself whether it will or will not rely upon the expiration of a limitation period. There is no obligation on the part of the defendant to do so. As yet, there has not been any defence filed to the Fourth Amended Statement of Claim. No doubt that is because of the existence of this Amended Motion and the fact that it would be potentially a waste of money and time to file a defence to a document which may be itself amended.

8. Once a defendant files a defence relying upon a limitation period which exists under the Limitation Act then it becomes a matter for a plaintiff to assess whether the provisions of s 55 of the Limitation Act are able to be relied upon and whether, if successfully relied upon, that would meet, wholly or in part, the limitation period pleaded by the defendants.

9. If the plaintiff chose to rely upon the provisions of s 55, then he would be required to file a reply by way of a pleading to the defence in accordance with r 14.4 of the UCPR, properly setting out how it is that s 55 is applicable, and able, to be relied upon, in answer to the pleaded limitation defence.

10. In those circumstances, it can be seen that a pleading relying upon s 55 of the Limitation Act in a statement of claim, is premature and inappropriate. A pleading under s 55 is a response to a pleading by a defendant relying on a particular identified limitation period under the Limitation Act.

11. Because that is so, it is inappropriate for me to grant leave to amend the Fourth Amended Statement of Claim in the way sought in order 2 of the Amended Notice of Motion.

Formal Amendment Order

12. Order 3 of the Amended Notice of Motion seeks to make explicit that which seems to me to be implicit in the Fourth Amended Statement of Claim, namely that the cause of action relied upon by the plaintiff is for damages pursuant to s 68 of the Fair Trading Act 1987 (NSW) and s 82 of the Trade Practices Act 1974 (Cth), and also a claim for an order of the kind provided for by s 87(2)(d) of the Trade Practices Act.

13. Such amendment is a formal one because it is plain to me that, having heard counsel for the defendants, the defendants are on notice of the nature of the claim which is made against them. However, for clarity, it is appropriate that such amendment is made. I note that the defendants do not oppose the making of that relatively formal and rather short amendment.

14. An order will be made granting leave, in terms which will become apparent to the plaintiff, to file a fifth Amended Statement of Claim including such amendment.

Balance of Amended Notice of Motion

15. The Court has dealt with the orders that were fixed for hearing today, but there is a further order in the Amended Notice of Motion dealing with the production of particular electronic or paper documents. That order is not before me today and it is proposed therefore that, when making final orders, the balance of the Notice of Motion be stood over to the Registrar to be dealt with in due course.

Costs

16. The defendants have sought that an order for costs ought be made on the Amended Motion. The defendants seek that their costs in the cause be paid by the plaintiff. In my view, having regard to the nature of the Amended Motion which is brought, the fact that the plaintiff is unrepresented, and the relatively straightforward nature of the submissions, it is simply appropriate that the costs of this Amended Motion be costs in the cause.

Orders

17. I make the following orders:

1. Dismiss orders 1 and 2 of the Amended Notice of Motion filed by the plaintiff on 26 March 2019.

2. Grant leave to the plaintiff to amend paragraphs 1 and 2 setting out the relief claimed in the Fourth Amended Statement of Claim, in this way with respect to both paragraphs, namely to add at the end of the existing paragraphs the following words, "Pursuant to s 68 of the Fair Trading Act 1987 (NSW) and/or s 82 of the Trade Practices Act 1974 (Cth) and/or as an order pursuant to s 87(2)(d) of the Trade Practices Act 1974 (Cth)".

3. Order that the plaintiff file and serve a Fifth Amended Statement of Claim containing these amendments on or before 4pm, 17 May 2019.

4. Order the defendants to file and serve any Defences upon which they propose to rely on or before 4pm, 14 June 2019.

5. Order the plaintiff to file and serve any Reply to those defences by 5pm, 5 July 2019.

6. Stand over the plaintiff's Notice to Produce directed to the defendants to 15 July 2019.

7. Stand over the balance of the Amended Notice of Motion to 15 July 2019.

8. Direct that the proceedings, including all outstanding interlocutory proceedings, be listed for directions before the Registrar at 9am on 15 July 2019.

9. Order that the costs of the Amended Notice of Motion to date be the costs in the cause.

10. Grant the parties liberty to apply on three days' notice.

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Decision last updated: 13 May 2019