Hurley v McDonald's Australia Limited (Includes Summary)
[2001] FCA 209
•9 MARCH 2001
FEDERAL COURT OF AUSTRALIA
JANETTE LYN HURLEY
v
McDONALD’S AUSTRALIA LIMITED
Q 194 of 1999
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, a brief summary has been prepared to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasized that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions that have been reached by the Court; it is not intended to take the place of the official reasons for judgment.
Dowsett J
9 March 2001
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 194 OF 1999
BETWEEN:
JANETTE LYN HURLEY
APPLICANTAND:
McDONALD'S AUSTRALIA LIMITED
RESPONDENT
JUDGE:
DOWSETT J
DATE:
9 MARCH 2001
PLACE:
BRISBANE
SUMMARY OF REASONS FOR JUDGMENT DELIVERED ON 9 MARCH 2001
In both 1998 and 1999 McDonald’s conducted competitions entitled “McMatch & Win Monopoly”. Customers were offered the opportunity to win prizes by collecting stamps which were attached to McDonald’s packaging. During the 1999 competition, McDonald’s rejected many claims for prizes which relied upon stamps printed for the 1998 competition, saying that these stamps had not been collected from any of it’s restaurants during the 1999 competition. In these proceedings thirty-four people tried to prove that they had so obtained their stamps.
Companies which manufactured the packaging for McDonald’s also attached the stamps to it. Sometimes, packaging came without stamps or restaurants ran out of packaging. In those circumstances restaurant staff could supply customers with stamps from rolls of spare stamps. McDonald’s proved that it was unlikely that packaging manufacturers had attached 1998 stamps to 1999 packaging. Therefore customers could have received 1998 stamps from McDonald’s restaurants only if:
·restaurants had kept cartons of 1998 packaging and supplied it to customers in 1999; or
·restaurants had kept rolls of spare stamps from 1998 and supplied them in 1999.
For reasons associated with the shapes of the stamps, only about half of the claimants could possibly have received their stamps from spare rolls.
The 1998 packaging was distinctly different in colour from the 1999 packaging. The Court considered that had a carton of it been supplied from a restaurant during the 1999 competition, the restaurant staff would almost certainly have noticed it. Staff members from all of the relevant restaurants gave evidence that there was no 1998 packaging in the restaurants during the 1999 competition. Further, most of the claimants said that they had received 1999 packaging, not 1998 packaging. Staff from the restaurants also said that the spare rolls of stamps from 1998 had been discarded or not seen since the 1998 competition.
The claimants had to persuade the Court that it was more probable than not that they had received their stamps from McDonald’s restaurants during the 1999 competition. The Court considered the evidence from the claimants and the evidence from McDonald’s, particularly the evidence from the restaurant staff, and was not satisfied of any of the claims. In some cases this was because of the McDonald’s evidence. In other cases it was because there were unsatisfactory aspects to the claimants’ evidence.
The full text of this judgment can be found at: align="center">FEDERAL COURT OF AUSTRALIA
Hurley v McDonald’s Australia Limited [2001] FCA 209
JANETTE LYN HURLEY v McDONALD’S AUSTRALIA LIMITED
Q 194 OF 1999
DOWSETT J
9 MARCH 2001
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 194 OF 1999
BETWEEN:
JANETTE LYN HURLEY
APPLICANTAND:
McDONALD'S AUSTRALIA LIMITED
RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
9 MARCH 2001
WHERE MADE:
BRISBANE
TABLE OF CONTENTS
THE ACTION AND ITS BACKGROUND........ ........ ........ ........ ........ ........ ........ ........ ........ .. 1
The Respondent........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 1
The Promotion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 2
Collect & Win........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 3
Instant Win and Second Chance Draw........ ........ ........ ........ ........ ........ ........ ........ ...... 4
The Prize Pool........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 4
Control Properties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 4
Important Dates in 1999 Competition........ ........ ........ ........ ........ ........ ........ ........ ........ 4
Promotional booklet (1999)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 5
POP Kits (1999)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 5
Important dates in 1998 competition........ ........ ........ ........ ........ ........ ........ ........ ........ . 5
IMPORTANT FEATURES OF THE 1998 AND 1999 COMPETITIONS
AND RELEVANT DIFFERENCES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 6
Control of the 1999 competition........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 10
The Problem........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 11
Media Publicity........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 11
The Action........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 12
SOME GENERAL COMMENTS CONCERNING THE EVIDENCE........ ........ ........ ...... 14
Approach to the evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 16
Theories........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 16
PRINTING EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 19
MANUFACTURING EVIDENCE – CUPS........ ........ ........ ........ ........ ........ ........ ........ ........ 22
Applicant’s theories relating to Polarcup........ ........ ........ ........ ........ ........ ........ ........ . 22
Polarcup evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 22
Presence of 1998 Labels or Packaging at Polarcup in 1999........ ........ ........ ........ .... 23
Application of Labels in 1999........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 24
The manufacturing process........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 25
Evidence from Polarcup quality assurance employees........ ........ ........ ........ ........ .... 26
Arthur Andersen Audit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 27
Cross-examination........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 28
MANUFACTURING EVIDENCE – HASH BROWN BAGS........ ........ ........ ........ ........ ... 30
Applicant’s theories relating to Detmold........ ........ ........ ........ ........ ........ ........ ........ . 30
Presence of 1998 labels or packaging at Detmold in 1999........ ........ ........ ........ ...... 31
Presence of 1998 promotional packaging in Detmold premises
after conclusion of 1998 production run........ ........ ........ ........ ........ ........ ........ ........ .. 36
Application of 1998 labels in 1999........ ........ ........ ........ ........ ........ ........ ........ ........ .. 37
Seeding of major prizes........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 42
Arthur Andersen audit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 42
MANUFACTURING EVIDENCE - FRY BOXES; PIE BOXES........ ........ ........ ........ ...... 42
Applicant’s theories relating to Anzpac........ ........ ........ ........ ........ ........ ........ ........ ... 43
Respondent’s evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 43
Presence of 1998 labels or packaging at Anzpac in 1999........ ........ ........ ........ ........ 44
Application of 1998 labels to 1999 promotional packaging in 1999........ ........ ....... 47
Quality assurance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 49
Seeding of major prizes........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 51
Arthur Andersen audit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 51
Sub-Contractors........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 51
CRITICISM OF PRINTING AND MANUFACTURING EVIDENCE........ ........ ........ ..... 52
DISTRIBUTION EVIDENCE – WALKERS........ ........ ........ ........ ........ ........ ........ ........ ..... 54
Applicant’s theories........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 54
Respondent’s Affidavit Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ .... 55
The Walkers operation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 56
Security Protocol........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 56
Run-out of 1998 packaging........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 57
Leftover promotional packaging........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 58
Destruction of packaging........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 59
Receipt of promotional packaging........ ........ ........ ........ ........ ........ ........ ........ ........ ... 59
Storage........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 59
Orders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 60
Picking........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 60
Restaurant deliveries........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 61
Cycle Count........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 61
Distribution Centre Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 61
Evidence concerning the 1999 promotion........ ........ ........ ........ ........ ........ ........ ....... 67
APPLICANT’S CRITICISM OF DISTRIBUTION EVIDENCE........ ........ ........ ........ ....... 67
STATISTICAL EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 68
CONDITION OF DISPUTED GAME STAMPS........ ........ ........ ........ ........ ........ ........ ........ 70
RESTAURANT EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 70
ANNERLEY - Leishman, Taylor........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 76
ASPLEY - Faulks, Hayward, Leishman........ ........ ........ ........ ........ ........ ........ ........ ... 79
AUSTRALIA FAIR - Campbell, Leishman........ ........ ........ ........ ........ ........ ........ ....... 81
BEAUDESERT – Leishman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 83
BEENLEIGH – Leishman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 85
BORONIA – Cain........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 87
BRIBIE INTERCHANGE – Brennan........ ........ ........ ........ ........ ........ ........ ........ ....... 88
BROWNS PLAINS – Stevens........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 92
BURLEIGH HEADS AND BURLEIGH WATERS – Leishman........ ........ ........ ....... 94
CABOOLTURE – Jones........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 96
CALOUNDRA – Leishman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 98
CANNING VALE – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 100
CLIFTON HILL – Miller........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 101
CONDER RESTAURANT – McGahey........ ........ ........ ........ ........ ........ ........ ........ ... 102
CRANBOURNE – Laughlin........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 103
DAPTO – Robinson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 105
DECEPTION BAY– Hooper, Nolan........ ........ ........ ........ ........ ........ ........ ........ ....... 106
DONCASTER EAST – Miller........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 108
DOVETON – Dowling........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 110
DURAL – Irwin........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 112
EAST VICTORIA PARK – Maynard........ ........ ........ ........ ........ ........ ........ ........ ...... 113
ELSTERNWICK EAST – Miller........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 114
EMU PLAINS – Buchtmann........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 116
ERINDALE – McGahey........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 118
FAIRY MEADOW – Robinson........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 119
FORSTER - Purtle........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 120
GATTON - Leishman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 121
GLEN WAVERLEY – Dowling........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 122
GUNDAGAI – Carr........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 123
HELENSVALE – Leishman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 125
HOYTS REGENT – Cole........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 126
INDOOROOPILLY - McInnes ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 127
KALLANGUR – Hayward........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 129
KIPPA-RING – Clarke........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 130
LABRADOR - Leishman, Campbell........ ........ ........ ........ ........ ........ ........ ........ ....... 131
LAKEMBA (SOMETIMES CALLED BELFIELD) – Irwin........ ........ ........ ........ .... 132
LOGANHOLME – Troutman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 133
LOGANLEA – Hodges........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 135
M4 MOTORWAY – Irwin........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 136
MACKAY (ALSO KNOWN AS CITY EXPRESS) – Silk........ ........ ........ ........ ........ . 139
MADDINGTON – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 140
MARSDEN – Doong, Harris........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 141
MELVILLE – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 144
MINCHINBURY - Irwin........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 145
MT GRAVATT - Leishman,Whittaker........ ........ ........ ........ ........ ........ ........ ........ .... 148
NEWMARKET (INCORRECTLY DESCRIBED BY MR LEISHMAN
AS ALDERLEY) – Leishman, Whittaker........ ........ ........ ........ ........ ........ ........ ........ 150
O’CONNOR – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 152
OXLEY - Crosse........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 154
PENRITH HIGH STREET – Buchtmann........ ........ ........ ........ ........ ........ ........ ....... 156
PENRITH LEAGUES CLUB – Buchtmann........ ........ ........ ........ ........ ........ ........ ... 158
PRAHRAN – Dowling........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 159
REDCLIFFE – Clarke........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 160
ROCKINGHAM – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 161
SPRINGWOOD - Denniss, Taylor........ ........ ........ ........ ........ ........ ........ ........ ........ . 162
ST KILDA – Dowling........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 165
ST PETERS – Irwin........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 166
THE GAP – Cox, Leishman........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 167
TOOWOOMBA SOUTH – Leishman........ ........ ........ ........ ........ ........ ........ ........ ..... 169
TRARALGON – Miller........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 171
TUGGERANONG – McGahey........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 173
VIRGINIA – Hayward........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 174
WARRAGUL – Fusinato........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 176
WARNBRO – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 178
WOLLONGONG – Robinson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 179
WOODBRIDGE – Maynard........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 180
OTHER RESTAURANTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 181
Airlie Beach Restaurant........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 181
Albion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 182
Rocklea ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 182
Roma Street........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 183
Runaway Bay........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 185
Yamanto........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 185
FURTHER COMMENTS CONCERNING EVIDENCE FROM RESTAURANTS ...... 186
Stocktaking and stock storage areas........ ........ ........ ........ ........ ........ ........ ........ ...... 186
Exhaustion of 1998 packaging........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 187
Rolls of spare 1998 labels........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 187
SUMMARY........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 188
FACTORS WHICH MAY ASSIST IN ASSESSING CLAIMANTS’ EVIDENCE........ 188
Single and double stamps........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 189
Colour of stamp backing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 189
Barely possible events........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 189
Less unlikely provenance of 1998 stamps allegedly received
during 1999 competition........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 190
“Similar fact” evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 193
Similar fact evidence – the respondent’s case........ ........ ........ ........ ........ ........ ....... 196
Credibility and reliability........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 197
CLAIMANTS’ EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 198
MAUREEN ANN BRENNAN........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 198
JOHN WILLIAM BUCHTMANN........ ........ ........ ........ ........ ........ ........ ........ ........ ... 202
LINDA CAIN........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 204
MARY AND WILLIAM CAMPBELL........ ........ ........ ........ ........ ........ ........ ........ ...... 206
KATIE JANE CARR........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 208
DONNA MAREE CLARKE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 209
JUDITH MARIE COLE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 211
JENNIFER ANNE COX........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 215
ANN-MARIE CROSSE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 217
CAMERON JOHN DENNISS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 219
BRONWYN DOONG........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 223
SOPHIE DOWLING........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 226
GEOFFREY OWEN FAULKS........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 228
PETER JAMES FUSINATO ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 230
SCOTT KENNETH HARRIS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 232
MICHELLE MAREE HAYWARD........ ........ ........ ........ ........ ........ ........ ........ ........ .. 235
TRACEY ANN HODGES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 238
TRACEY ELIZABETH HOOPER........ ........ ........ ........ ........ ........ ........ ........ ........ .. 243
DARREN ALAN KEVIN IRWIN........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 246
DANIEL MARK JONES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 251
VALERIE ESTHER LAUGHLIN........ ........ ........ ........ ........ ........ ........ ........ ........ .... 253
NORMAN WAYNE LEISHMAN........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 255
IAN ROBERT MAYNARD........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 262
PETER ANTHONY McGAHEY........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 266
PAMELA ELIZABETH McINNES........ ........ ........ ........ ........ ........ ........ ........ ........ . 268
JAMES JOHN MILLER........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 271
NICHOLAS PATRICK NOLAN........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 273
INGRID MARIJKE CARLA PURTLE........ ........ ........ ........ ........ ........ ........ ........ .... 275
JOANNE ROBYN ROBINSON........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 277
JAMIE ALEXANDER SILK........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 280
GARY ARTHUR STEVENS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 282
RODNEY GEORGE TAYLOR........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 283
KIRSTIE SHEREE TROUTMAN........ ........ ........ ........ ........ ........ ........ ........ ........ ... 285
JOSEPH TERENCE WAYNE WHITTAKER........ ........ ........ ........ ........ ........ ........ .. 287
ORDERS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 289
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 194 OF 1999
BETWEEN:
JANETTE LYN HURLEY
APPLICANTAND:
McDONALD'S AUSTRALIA LIMITED
RESPONDENT
JUDGE:
DOWSETT J
DATE:
9 MARCH 2001
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE ACTION AND ITS BACKGROUND
The Respondent
The respondent is well-known as a supplier of “fast food”. Throughout Australia there are approximately 600 McDonald’s restaurants. About 200 of these restaurants are operated by the respondent; the others are operated by licensees pursuant to licence agreements with the respondent. All restaurants offer food products marketed under the McDonald’s brand name. There are variations in the ranges of products offered at different restaurants. The restaurants are not all uniform in design or operation, but Mr Farmilo’s affidavit demonstrates that they fall into a number of broad categories. It is necessary for present purposes to say only that most restaurants provide dining room facilities in conjunction with counter service and drive-through facilities for take-away food. However at least one restaurant has no dining room, and some restaurants do not have drive-through facilities. Most restaurants have limited storage space. The respondent has developed a substantial body of procedures for use in all restaurants, including computer programmes for stock control and accounting purposes. There is a distinctive McDonald’s livery for restaurant buildings and packaging The respondent regularly undertakes national promotional programmes in conjunction with its licensees. The current proceedings arise out of one such promotion.
The Promotion
In both 1998 and 1999 the respondent conducted promotional competitions entitled “McMatch & Win Monopoly”. The competitions borrowed the get-up associated with the well-known parlour game “Monopoly”. During the course of each competition the respondent supplied to persons buying particular fast-food products, small “game stamps”. The game stamps were incorporated within labels which were affixed to the packaging of the relevant products. The labels were red in 1998 and yellow in 1999. The surface of each label was perforated so that either one or two rectangular portions of it could be “peeled off”, these portions being the game stamps. The terms “label”, “game stamp” and “stamp” are generally used throughout this judgment accordingly. However such usage was not uniformly adopted throughout the trial. The words “competition”, “promotion”, “game” and “Monopoly” were also used interchangeably. I fear that, from time to time, I may not be as consistent in my use of these various terms as I would normally try to be. Unfortunately, the length of the judgment and the variations in terminology adopted by witnesses make this goal difficult to attain. I do not believe that there is risk of serious misunderstanding as a result of any looseness in terminology. It may also assist if I record that at some stage, the 1998 promotion was code-named “Puzzle”, whilst the 1999 promotion was code-named “Killer”.
One particular aspect of this problem should be mentioned. In discussing the restaurant evidence, I have consistently referred to “rolls of spare labels”. The purpose and nature of these rolls are discussed below. In discussing the restaurant evidence, I have also frequently referred to evidence from staff that, following the 1998 competition, they removed game stamps from the packaging so that it could be used. It is likely that many of those witnesses meant that they had removed the labels. However I have retained the expression “game stamps” because I was not confident that in all cases, that was their meaning. This usage may be capable of causing confusion. For that reason I thought it desirable to draw attention to it.
As I have said, some labels bore one stamp (described hereafter as a “single stamp”), whilst others bore two stamps (each of which stamps is hereafter described as a “double stamp”). Out of an abundance of caution I should say that any reference to a “double stamp” is to one stamp which was previously attached to another, and not to two stamps so joined. I will refer to “single labels” or “double labels”, where appropriate, to describe them as bearing one or two stamps respectively. The two double stamps on a label were, before “peeling”, attached at adjoining vertical edges so that one was a “left” and one, a “right”. Perforation facilitated separation. This arrangement led to a design difference between single and double stamps which makes them easy to identify as one or the other. Both bottom corners of a single stamp are slightly rounded while one of the bottom corners of a double stamp (on the side which was joined to its “twin”) is cut squarely. When the game stamps were peeled from the label after purchase, their faces were revealed. There were three ways in which participants could win prizes using these game stamps. In competition parlance they were described as “Collect & Win”, “Instant Win” and “Second Chance Draw”. The face of each game stamp demonstrated its significance for the purposes of the competition.
Collect & Win
This component of the competition has given rise to the present dispute. The faces of most of the game stamps were designed to resemble the various “property” cards used in the game of Monopoly. Each game stamp bore the name of a well-known site in Greater London such as Pall Mall, Mayfair, Trafalgar Square or King’s Cross Railway Station. The various locations or “properties” were grouped together into sets of two, three or, in one case, four. Thus Park Lane and Mayfair constituted a “property set”, as did four London railway stations. At the top of each game stamp pertaining to a site (other than the railway stations) there was a coloured bar. Each stamp in a particular set bore a bar of the same colour, and each property set was coloured differently. For example Park Lane and Mayfair game stamps bore dark blue bars, whilst the Regent Street, Oxford Street and Bond Street game stamps bore green bars. This get-up resembled that used in the “Monopoly” parlour game. Any player who obtained all of the game stamps in a particular property set would, subject to verification of the claim, win the prize appropriate to that set. For example a player holding both Park Lane and Mayfair stamps would win a motor car.
To participate in the competition a player required a tray mat. They were available at restaurants on request and were routinely supplied on trays with meals. The mats were designed to represent a Monopoly game board. The tray mat provided spaces to which game stamps could be affixed so that they were arranged in their relevant sets. Each set, as laid out on the mat, was, in effect, a coupon for use in claiming the relevant prize. The back of the mat was designed so that when a completed set was cut out of the mat, the back of the excised portion contained a space in which the prospective claimant could enter his or her name, address and telephone number. The tray mat also bore instructions as to how to play the game and referred to notices erected in each restaurant which set out the conditions governing the competition.
Instant Win and Second Chance Draw
Game stamps which did not relate to London sites, and were therefore not parts of sets, might be “Instant Win” major prize stamps, “Instant Win” $200 cash prize stamps, “Instant Win” food prize stamps or “Second Chance Draw” prize stamps. An “Instant Win” stamp immediately entitled the player, subject to verification, to the prize identified on the game stamp. Both non-food prizes (ie major prizes and $200 cash prizes) and food prizes could be won in this way. Game stamps described as “Second Chance Draw” entitled the participant to enter a draw for non-food prizes remaining unclaimed at the conclusion of the competition. Such prizes would be unclaimed because relevant property stamps had not been distributed for some reason or because customers who had received them had not participated in the competition. The tray mat also provided details relating to these other aspects of the competition.
The Prize Pool
In both 1998 and 1999 there were nine property sets and hence nine categories of major prizes. The “Collect and Win” prize pool comprised the majority of the prizes available in each major prize category.
Control Properties
Given that the number of prizes capable of being won in the “Collect and Win” component was fixed, it was necessary that the opportunities to win those prizes be limited. This was done by means of “control stamps”. For each property set, one stamp was selected as the control stamp. Relatively few of the control stamps were issued. Thus many players might accumulate all but the control stamp for a particular set, but few players would receive control stamps. Significantly for present purposes, the control stamps for some property sets differed in 1999 from those used in 1998.
Important Dates in 1999 Competition
The 1999 competition commenced on Friday 4 June 1999 and concluded on Sunday 1 August 1999. A fourteen day packaging run-out period commenced on 2 August 1999 and concluded on Sunday 15 August 1999. During the run-out period restaurants were permitted to use any promotional packaging remaining in the restaurant. All prizes (including food prizes) had to be claimed by 15 August. At the trial there was some inconsistency in use of the terms “end of the competition”, “end of the run-out period” and similar expressions. However that is of no particular significance.
Promotional booklet (1999)
Prior to the scheduled commencement of the 1999 competition, promotional booklets were sent to all restaurants. The booklet was designed to explain the promotion to those involved in the management and operation of restaurants. In particular, it listed the products with which game stamps were to be supplied, the importance of securing packaging, the procedures for distributing tray mats, and the prize redemption procedures. Relevant accounting and operational procedures were also prescribed. There was a suggested agenda for crew meetings at which the relevant in-store procedures could be explained to staff.
POP Kits (1999)
At about the same time as the restaurants received the promotional booklets, they also received Point Of Purchase (“POP”) kits. These kits contained display material, including a poster detailing the terms and conditions of the competition. The kit also contained a number of “crew posters” which summarised the promotion and outlined the duties of the crew (ie restaurant employees). Although the evidence is a little unclear, it seems that each POP kit also contained at least one roll of spare labels, which were single labels.
Important dates in 1998 competition
As I have mentioned, the 1998 and 1999 competitions were very similar in concept although they differed in a number of important practical respects. The 1998 competition commenced on Friday 3 July 1998 and concluded on Sunday 16 August 1998. The “run-out” period commenced on 17 August 1998 and concluded on Monday 31 August 1998. Prior to the commencement of the 1998 competition, restaurants were issued with a promotional booklet similar to that distributed in 1999. Restaurants also received POP kits similar to those issued in 1999. It is not necessary to explain these aspects of the 1998 competition in any further detail.
IMPORTANT FEATURES OF THE 1998 AND 1999 COMPETITIONS AND RELEVANT DIFFERENCES
Game stamps
As I have explained, in both competitions customers received either single or double game stamps when purchasing nominated products. The table below identifies the type of label (single or double) affixed to each relevant promotional package in the 1999 and 1998 competitions.
1999 COMPETITION 1998 COMPETITION Double Single Double Single Large fry box Medium fry box Large fry box Medium fry box Large drink cup Medium drink cup Large drink cup Medium drink cup Large shake cup Regular shake cup Hash brown bag Apple pie box Large orange juice cup Cherry pie box Hash brown bag
A customer who purchased a large box of fries, a large soft drink and a hash brown would receive three labels (two double and one single), bearing five game stamps. The product described above as “large orange juice” was supplied in medium cups, and so a purchaser would receive a single label. I am not sure whether there was any difference between a large drink cup and a large shake cup or between a medium drink cup and a regular shake cup. The case generally proceeded upon the basis that there was no relevant difference with one possible exception. Following the 1998 Monopoly promotion, there was another promotion described as the “AFL/Coke” promotion. This promotion had special large cups for Coca Cola, and so large Monopoly promotional cups could not be used for serving that product. If any such cups remained in the restaurant, they could be used for shakes. (See exhibit 245.) The cherry pie item was a special promotion item not usually available in the restaurants. (See exhibit 173, p 3.)
The labels as they appeared on the packaging were yellow in 1999 and red in 1998. In some of the evidence, this coloured surface is described as the “front” of the label. When the game stamps were peeled off, each took with it a part of that coloured surface. Thus each game stamp had one yellow side in 1999 and one red side in 1998. Although it is a little misleading, this coloured side is hereafter described as the “back” of the game stamp. On the other side (the “front” of the game stamp), were relevant competition details as described above. The coloured backing was easily removed.
Packaging Colours and Design
In both 1998 and 1999, promotional food and drink items were supplied in packaging specifically designed and produced for use in connection with the competition. This packaging was different from the “generic” or “non-promotional” packaging normally used for such items. The promotional packaging used in 1999 differed from that used in 1998. Exhibit 10 contains the full range of relevant packaging for the 1999 competition. Exhibit 18 contains the full range of 1998 packaging save for the large cup which was a larger version of the medium cup.
In 1999 the large and medium fry boxes and the large and medium cups had a dark purple background over which was imposed a collage of Monopoly game board squares, McDonald’s logos, McMatch & Win logos, prize descriptions and other writing. In 1998, the packaging for these products had a blue background with a clearly different, although not dis-similar collage design. The overall effect of these colour and design differences was that the large and medium cups and large and medium fry boxes used in 1999 were noticeably different from those used in 1998.
Promotional hash brown bags were white with a coloured design. The design in 1999 was different from that used in 1998.
In the 1999 competition, game stamps were also distributed with apple pie boxes and cherry pie boxes. These products had not been part of the 1998 promotion.
Colour and design of game stamps
The fronts of the property game stamps also differed between 1998 and 1999. Some of the differences are visible; some are not. Three differences are apparent. The first is that each property game stamp printed for the 1999 competition bore on its face a yellow “M” logo super-imposed over the printing on the stamp. This was also referred to as “yellow arches” or “golden arches”. Game stamps printed for the 1998 competition had no such “M”. The second difference is the code printed on the face of each stamp. In both 1998 and 1999 each game stamp bore at its foot a numerical code preceded by the letter “M”. For example in 1999, the Piccadilly game stamp bore the code “M1”, Leicester Square bore the code “M3” and Coventry Street (the third stamp in the set) bore the code “M14”. In 1998, the codes were different. The details are not important. The third apparent difference is the wording of the short instruction at the foot of the face of each game stamp. In 1999, the instruction read “See tray mat for details”. In 1998 the instruction read “See your tray mat for details” (emphasis added). Thus it can be seen that whether a stamp retained its coloured backing or not, it was, and is readily identifiable as having been designed for use in either 1998 or 1999. The control stamps had other security marks on them which are not visible to the naked eye. It is not necessary to discuss them.
Different control stamps
As I have said, the 1999 competition had different control stamps for some, but not all of the sets, presumably for security reasons. The control stamps for the 1998 and 1999 competitions were as listed below.
CONTROL PROPERTIES IN THE 1998 AND 1999 COMPETITIONS Property Set Colour 1998 Control Piece 1999 Control Piece Purple Old Kent Road * Old Kent Road * Light Blue Euston Road The Angel Islington Pink Whitehall Northumberland Avenue Orange Bow Street Marlborough Street Red Fleet Street Trafalgar Square Yellow Piccadilly Coventry Street Green Bond Street * Bond Street * Dark Blue Mayfair Park Lane Magenta Marylebone Station King’s Cross * unchanged.
These changes are at the root of the present problem. Many people have presented claims in the 1999 competition, relying on stamps which appear to be 1998 stamps. All of the disputed stamps were non-control stamps in the 1998 competition. Such stamps were printed and circulated in very large numbers. The stamps printed for the same properties for the purposes of the 1999 competition, being control stamps, were printed in very small numbers so as to limit the number of potential prize winners. If 1998 stamps for the same properties are to be treated as valid in 1999, there may be, in theory at least, a very large number of potential winners, far in excess of the advertised number of prizes. Such prizes have, as far as I know, been awarded in accordance with the rules of the competition to customers presenting appropriate 1999 stamps.
Rolls of spare game stamps
During the 1999 competition, each restaurant was supposed to receive at least one roll of 1,000 single yellow labels (ie, each bearing one game stamp). The 1999 promotional booklet stated that these labels “should be used in the case of faults on promotional packaging” and in particular where employees encountered “packaging with damaged or missing game stamps”. The roll was to be stored in a lockable cupboard in the manager’s office or in the safe. In practice, the restaurants also issued these labels with generic packaging when promotional stock was exhausted and in other local promotions such as children’s parties. In the 1998 competition each restaurant had received at least one roll of 500 single red labels for similar purposes. These labels were indistinguishable from single labels attached to promotional packaging.
World Wide Raw Item Numbers (WRIN Codes)
Much of the material used in a McDonald’s restaurant is supplied by Australian Meat Holdings Pty Limited through a division of that company called F J Walker Foods (“Walkers”). Deliveries of packaging (and other items) are made on a weekly, twice-weekly or thrice-weekly basis, depending upon the location of the restaurant in question. Materials delivered to a restaurant by Walkers are identified by an identification number described as a “World Wide Raw Item Number” (“WRIN code”). These are seven-digit numerical codes. As the table below demonstrates, in 1998 the WRIN codes for items of Monopoly promotional packaging differed from those for their generic equivalents. In 1999 this was also the case, save that for cherry pie boxes, the generic WRIN code and the Monopoly WRIN code were identical. This may be because cherry pies were only supplied as promotional items. The table also demonstrates that the WRIN codes for promotional large cups, medium cups, large fries and medium fries were the same in 1998 and 1999. The WRIN code for promotional hash brown bags was different in each year.
WRIN NUMBERS FOR PROMOTIONAL AND GENERIC PACKAGING ITEMS IN 1998 AND 1999 Product Generic WRIN Monopoly WRIN 1998 1999 1998 1999 Hash Brown Bags 5429-034 5429-034 5429-043 5429-020 Large Cups 0157-540 0157-540 0157-633 0157-633 Medium Cups 0156-345 0156-345 0156-438 0156-438 Large Fry Boxes 3761-095 3761-095 1139-354 1139-354 Medium Fry Boxes 0163-132 0163-132 0163-210 0163-210 Apple Pie Boxes N/A 0166-082 N/A 0166-014 Cherry Pie Boxes N/A 0097-039 N/A 0097-039
Evidence concerning WRIN codes took up some time in the course of the trial, partly because of the apparent potential for confusion where the same number was used for different stock items and partly because many restaurant operators seem not to have paid great attention to the WRIN codes in their stock records. The applicant sought to rely upon these matters as demonstrating unreliability in the respondent's evidence that there was no 1998 promotional packaging in the restaurants during the 1999 promotion.
Control of the 1999 competition
The sales promotion agency Creata Promotion (Aust) Pty Limited (“Creata”) designed and administered both promotions on behalf of the respondent. Russell Vine was the principal employee concerned. He has sworn an affidavit deposing to the development of the competition and the administration of it. In particular, Creata designed the artwork for the 1999 promotion, including the Monopoly artwork, received the redemption envelopes with the relevant coupons and stamps and determined, at least at first instance, the validity or otherwise of the claims. Mr Vine’s affidavit demonstrates a very complex system for opening, recording and validating the various claims. Although a few claimants alleged that game stamps had been tampered with after posting, it is quite clear from this evidence that such allegations must be groundless. It is of some interest to note that according to Mr Vine, the volume of entries being received by Creata increased substantially from on or about 23 June 1999. (See his affidavit at sub-par 55(aa).) Kylie Wallbridge was the employee of the respondent primarily responsible for the day-to-day conduct of the competition, largely acting in liaison with Mr Vine at Creata.
The Problem
Ms Wallbridge became aware, on or about 15 or 16 June 1999, that 1998 stamps were being presented to support claims for prizes. Exhibits 342, 343 and 344 relate to this problem. On or about 20 or 21 June she attended a meeting at which the problem was discussed and as a result, sent an e-mail to all restaurants alerting them to the problem. This is exhibit KW4 to her affidavit. As I have said, Mr Vine was of the view that from about 23 June the volume of claims increased substantially.
It is quite easy to determine whether or not a stamp was designed for the 1998 competition or for the 1999 competition. Throughout these reasons I identify stamps as “1998 stamps” or “1999 stamps” accordingly. For obvious reasons, I also assume that a 1998 stamp came from a 1998 label and a 1999 stamp, from a 1999 label. The applicant asserted, very faintly, that stamps appearing to be 1998 stamps may have been mistakenly printed for the 1999 competition. However the evidence precludes any such possibility. I will deal with that evidence at a later stage. Thus if a stamp had, when received, red, rather than yellow backing or does not bear the “M” on the front, I infer for all material purposes that it is a 1998 stamp rather than a 1999 stamp. By this I mean that it was printed for the 1998 competition rather than for the 1999 competition. If a stamp had yellow backing or bears an “M”, then I infer that it is a 1999 stamp. Labels are similarly treated. Some claimants said that they had received stamps without “M”s on their faces, but with yellow backing. The printing evidence demonstrates that such an occurrence is virtually impossible. It was also suggested by some people that stamps bearing yellow “M”s on their faces came with red backing. That is also virtually impossible. The bases for these inferences will appear later when I consider the printing evidence. All of the disputed stamps lack the “M” on their faces. I therefore infer that they were printed for the 1998 competition. The substantial issue for determination is whether they were distributed by the respondent or its licensees during the 1999 competition.
Media Publicity
The promotion started on 4 June and ended on 1 August, with a run-out period, both for the use of packaging and to claim prizes, lasting until 15 August. The respondent was aware of possible irregularities by about 15 or 16 June. On 22 June the matter was raised twice on talk-back radio in Melbourne, again on 28 June and on numerous occasions on 29 June. On 30 June the matter was reported on Channel 9’s national programme “A Current Affair” and again on Melbourne radio. On 1 July there was radio and television coverage in all mainland states. Thereafter, the matter was consistently in the news until at least mid-July. On or about 1 July the respondent appointed a retired Judge of this Court, the Hon T R Morling, to investigate the matter. These proceedings were commenced in the Queensland registry on 2 July. It is clear that this was always intended to be what is known as a “class” action. The commencement of the class action and the name of the firm of solicitors acting for the applicant were reported on Brisbane’s Channel 7 on the night of 2 July. There was also extensive coverage of the issue in the print media from 1 July until mid-August.
In early July the Australian Competition and Consumer Commission (“ACCC”) became interested in the matter, and numerous public comments were made by representatives of that body, in particular its chairman. Some of those comments suggested that ACCC had concluded that the respondent was at fault in not honouring claims. On or about 9 July Mr Morling reported to the respondent, apparently finding that it had been justified in rejecting the various disputed claims, or at least that was the thrust of the media reports. The intervention by ACCC was reported in numerous newspaper articles, mainly in mid-July. There was also media coverage of proceedings commenced in Victoria which were subsequently consolidated with these proceedings.
Some of the present claims were made with knowledge of the dispute, which knowledge was derived from this media coverage. I mention that at this stage because one of the arguments advanced by the applicant in support of the claims is, in effect, that there are so many claimants who say that they received 1998 stamps during the 1999 competition that it cannot reasonably be thought that they are mistaken and/or lying; that, to adopt the well-known aphorism, “Fifty million Frenchmen can’t be wrong.” In assessing this proposition it will be necessary to keep in mind this wide media coverage. Any person having access to 1998 stamps from whatever source might well have been encouraged to make a claim if he or she knew that other people were apparently doing so with the support of the media, ACCC and solicitors.
The Action
The applicant, on behalf of herself and others, asserts their entitlement to various substantial prizes as a result of participation in the 1999 competition. All persons making such claims are hereafter described as “claimants”. Each claims that, in the course of the 1999 competition, he or she received a winning combination of game stamps and that the respondent has wrongfully rejected his or her claim. The respondent asserts that each rejected claim relies upon one game stamp printed for the 1998 competition and denies that these game stamps were issued by any of its restaurants in the course of the 1999 competition. It contends, by reference to the rules of the 1999 competition, that it was entitled to reject prize claims which utilised game stamps not printed for and/or issued during, the 1999 competition. The principal factual dispute concerns the circumstances in which each claimant came into possession of the relevant 1998 stamp. The respondent does not seek to distinguish between itself and its licensees for the purposes of determining its liability for these claims. However it did not accept any obligation to ensure discovery of documents in the possession of licensees. Nonetheless, it sought to co-operate as far as possible in facilitating access to such documents by the applicant.
These proceedings are brought pursuant to ss 33C and 33D of the Federal Court of Australia Act 1976 (Cth). In her amended statement of claim, the applicant asserts that she:
… is and was a member of a group of persons to whom these proceedings relate, being:
A group of identified and unidentified purchasers, Australia-wide, of McDonald’s food products who participated in the Monopoly McMatch and Win competition, promoted and conducted by the respondent in 1999 (the “Competition”), and who … claim to have won a prize in the Competition, but whose entry has been treated as invalid by the respondent on the ground that the entry utilised game stamps which had not been issued in connection with the Competition.Many people prima facie fall within the group or class so identified. Some have opted out of these proceedings. Nevertheless, the “group of persons” still numbers, I am told, in the thousands. Only thirty-four claimants have presented their cases in full. In answer to these claims, the respondent has advanced its defence. Following the determination of these claims, the remaining claimants will decide whether to continue the prosecution of their claims. There are difficulties inherent in this process, but they may be left for consideration at a later stage. Proceeding on this basis, I have taken fifty-one days of evidence in relation to the thirty-four claimants. They include claimants from Queensland, New South Wales, the Australian Capital Territory, Victoria and Western Australia. Some have made multiple prize claims. Some have been unable to identify the restaurants at which they acquired the relevant stamps or say when they did so. In the table below I list each presently relevant claimant, his or her state or territory of residence and the number of prize claims each has made. Ms Hurley, the applicant, has not pressed her own claim in this phase of the proceedings.
LIST OF CLAIMANTS
Name Place of Residence Number of Prize Claims 1. Maureen BRENNAN Queensland 1 2. John BUCHTMANN New South Wales 1 3. Linda CAIN Victoria 1 4. Mary CAMPBELL Queensland 2 5. Katie CARR New South Wales 1 6. Donna CLARKE Queensland 1 7. Judith COLE Queensland 1 8. Jennifer COX Queensland 1 9. Ann-Marie CROSSE Queensland 1 10. Cameron DENNISS Queensland 2 11. Bronwyn DOONG Queensland 1 12. Sophie DOWLING Victoria 1 13. Geoffrey FAULKS Queensland 1 14. Peter FUSINATO Victoria 1 15. Scott HARRIS Queensland 1 16. Michelle HAYWARD Queensland 2 17. Tracey HODGES Queensland 2 18. Tracey HOOPER Queensland 1 19. Darren IRWIN New South Wales 1 20. Daniel JONES Queensland 1 21. Valerie LAUGHLIN Victoria 1 22. Norman LEISHMAN Queensland 7 23. Ian MAYNARD Western Australia 1 24. Peter McGAHEY ACT 1 25. Pamela McINNES Queensland 1 26. James MILLER Victoria 2 27. Nicholas NOLAN Queensland 1 28. Ingrid PURTLE New South Wales 1 29. Joanne ROBINSON New South Wales 1 30. Jamie SILK Queensland 1 31. Gary STEVENS Queensland 1 32. Rodney TAYLOR Queensland 1 33. Kirstie TROUTMAN Queensland 1 34. Joseph WHITTAKER Queensland 1 SOME GENERAL COMMENTS CONCERNING THE EVIDENCE
The more significant evidence in this case falls into a number of categories. The first category includes evidence from the claimants and supporting witnesses. In broad terms, this evidence addresses the circumstances in which each obtained his/her “winning” 1998 game stamp or stamps, allegedly during the 1999 competition. The second category of evidence concerns the printing of game labels for the purposes of both competitions. Using Creata’s art work, a company called Pemara Corporation Pty Ltd (“Pemara”) printed the labels and forwarded them to three other companies which manufactured the relevant packaging. They were:
for cups: Polarcup (Australia) Limited (“Polarcup”);
for fry boxes and pie boxes: Anzpac Services (Australia) Pty Limited (“Anzpac”); and
for hash brown bags: Detmold Packaging Pty Limited (“Detmold”).
These three companies manufactured the packaging, affixed the relevant promotional labels to it and forwarded the completed products to various Walkers depots around the country. The third category of evidence came from employees of these companies. Walkers distributed the packaging to restaurants. The fourth category of evidence came from Walkers employees and concerns the distribution process. All of this evidence was led to demonstrate that 1998 labels were not printed or distributed to restaurants during the 1999 competition. The fifth category of evidence concerns the receipt, storage and use of packaging and other material in the restaurants during both promotions. By this evidence the respondent seeks to establish that no relevant restaurant:
·retained, at the conclusion of the 1998 competition, (knowingly or unknowingly) 1998 promotional packaging or labels;
·stored (knowingly or unknowingly) 1998 promotional packaging or labels in the period between the conclusion of the 1998 competition and the commencement of the 1999 competition;
·received, during the 1999 competition, any 1998 promotional packaging or labels from any source; or
·distributed, during the course of the 1999 competition, any 1998 promotional packaging or labels.
This evidence will be compendiously described as the “restaurant evidence”. Because numerous restaurant witnesses gave evidence to similar effect, it was agreed that it would not be necessary for the applicant to cross-examine all such witnesses merely for the purpose of offering them opportunities to comment on the applicant’s case. Exhibit 368 lists such witnesses and the extent to which their evidence is disputed despite the fact that they were not cross-examined.
In addition to the evidence outlined above, there is also statistical evidence, evidence concerning the opening of the redemption envelopes, evidence from a document examiner and evidence of media coverage to which I have previously referred. I will refer to this evidence incidentally where it appears to be relevant.
Approach to the evidence
Each claim must be decided on its particular facts, but in light of all of the evidence relevant to that claim. The applicant has submitted that the evidence of each claimant should be seen as supported by the evidence of every other claimant and even by the fact that there are other claims which are not presently under consideration. The theory seems to be that this is “similar fact” evidence. I will deal with this submission at a later stage. It is convenient that I consider the evidence in the following order:
·printing, manufacturing and distribution evidence;
·restaurant evidence; and
·claimants’ evidence.
Theories
Before considering the evidence it is appropriate to say something about the broad lines followed by the parties in the conduct of the case. This may assist in understanding much of the evidence. The applicant generally argued that she was not obliged to demonstrate anything more than that each claimant obtained his or her disputed stamp in the course of the 1999 competition from a McDonald's restaurant. She submitted that it was not for her to formulate any particular theory as to how 1998 labels came to be supplied to claimants in 1999, let alone to prove any such theory. This may be, in principle, correct, although much may depend upon the proper construction of the rules of the competition and of the terms of any contract between each claimant and the respondent. However, at times, it seemed as if the applicant were asserting that in the absence of any inherent improbability in the evidence of a claimant, his or her evidence ought be accepted unless the respondent demonstrated that he or she did not receive the relevant stamp during the 1999 competition. On more than one occasion, I pointed out that each claimant’s evidence must be assessed in the light of the evidence as a whole, and that evidence which, on its own, appears credible, may appear otherwise when viewed in the light of other evidence. I suggested that in those circumstances, it would be wise for the applicant to address the question of how a 1998 stamp may have been issued in the 1999 competition.
In her written submissions, the applicant suggested that the most likely explanations for 1998 stamps finding their way into the 1999 competition were:
·that Pemara had retained labels printed for the 1998 competition and that these were supplied to one or more of the packaging companies in 1999, affixed to 1999 packaging and then distributed;
·that Walkers retained 1998 packaging and distributed it in 1999;
·that one or more of the packaging companies had retained 1998 labels, applied them to 1999 packaging and distributed them; and
·that some restaurants had retained 1998 packaging or parts of 1998 rolls of spare labels and distributed the packaging or labels to customers during the 1999 competition.
There was also at least a suggestion that Pemara may have actually printed 1998 stamps in 1999 and then distributed them. However I did not understand this theory to be advanced with great enthusiasm, and it can be easily discarded. I will deal with it later. There was also a suggestion that a packaging company may have retained 1998 packaging with labels and sent it to Walkers in 1999.
The theory that 1998 packaging may have been retained and distributed during the 1999 competition (whether by a manufacturer, Walkers or a restaurant) generally involved the assumption that a carton or cartons of 1998 packaging may have been so retained. It was not strongly argued that any lesser quantity may have been retained. There is good reason for that approach. If an open carton of 1998 packaging or “loose” packaging remained after the 1998 competition, it is very likely that the distinctive colour of such packaging would have attracted attention. Once detected, at some time between August 1998 and May 1999, it is likely that it would have been disposed of in one way or another. On the other hand, the cardboard cartons in which packaging is supplied to the restaurants are not so distinctive. They are readily distinguishable by the wording printed on them, by labels attached to them and in some cases, by the colour of the printing. Nonetheless, had a carton of 1998 packaging been distributed in a restaurant during the 1999 competition, it would have contrasted markedly with the 1999 packaging. The evidence indicates that a carton of any packaging item would last at least a day and, in some cases, up to a week or more. Thus, for an extended period of time, the restaurant would be distributing packaging which was different from that otherwise used in the promotion. No restaurant witness saw any such event. Very few of the claimants or their supporting witnesses suggested that they had received 1998 packaging.
It is, nonetheless, theoretically possible that something less than a full carton of 1998 packaging may have been retained. It is even possible that a 1998 label could have been affixed to one cup, box or bag, perhaps by a mischievous employee. There may be many other barely possible sequences of events which could have led to 1998 labels being in a restaurant during the 1999 competition. I did not understand the applicant to rely heavily upon the possibility that an “odd” 1998 stamp could have found its way into the 1999 competition. Such an event could probably occur only as the result of deliberate mischief by an employee. Whilst an occurrence of that sort is possible, it is unlikely that it could be the cause of more than one or two of the claims. The disputed stamps were allegedly acquired from restaurants across the country. Various items of packaging were involved. The stamps were allegedly obtained at different stages in the competition. Those factors suggest that it is unlikely that any one theory will explain all of the claims. I address these matters at this stage so as to ensure that they are kept in mind throughout my consideration of the evidence.
The respondent asserts that the disputed stamps were not obtained from restaurants in the course of the 1998 competition, and that claimants may or may not know of the defective provenance of their stamps. The respondent has not sought to prove the actual course by which each claimant came into possession of each stamp. It would be impossible to do so. Rather, it has contented itself with seeking to demonstrate that there was no 1998 packaging or labels in any of the relevant restaurants during the 1999 competition, so that none could have been supplied to customers. This exercise required the respondent to address two possibilities:
·that 1998 packaging had been retained in a restaurant following the 1998 competition; or
·that 1998 packaging or 1999 packaging with 1998 labels had been delivered to a restaurant in the course of the 1999 competition.
The restaurant evidence was designed to exclude both possibilities. The printing, manufacturing and distribution evidence was designed to exclude the second possibility. In the course of the applicant’s cross-examination of the respondent’s witnesses, a third possibility emerged which was something of a hybrid. It was based upon evidence that restaurants occasionally received transfers of packaging stock from other restaurants. The applicant suggested that 1998 packaging or 1999 packaging with 1998 labels may have been transferred from one restaurant (where it had been retained since the 1998 competition or received in 1999) to another restaurant. There is no evidence that this happened, but it remains a possibility.
PRINTING EVIDENCE
As I have said, Pemara printed all of the labels (including game stamps) used in connection with both competitions. The applicant has suggested that Pemara may have mistakenly printed 1998 labels in 1999, and that those were distributed and applied to promotional packaging utilized in the 1999 competition. Alternatively, she has suggested that Pemara may have retained labels or rolls of labels printed for the purposes of the 1998 competition and distributed these for the purposes of the 1999 competition.
Andrew McNamara is the national marketing manager of Pemara. He said that material used to produce the 1998 game stamps was disposed of by Pemara following the conclusion of the 1998 production run. This material included the 1998 printing plates, film, proofs and art work. Mr Beamsley, the stores supervisor at Pemara, and Mr Rutledge, the senior production planner at Pemara, gave supporting evidence to this effect. Some of the waste material was burned whilst the remainder was buried. Checks were also carried out at Mr McNamara’s direction, prior to the commencement of the 1999 production run, to ensure that “Pemara did not retain any waste tokens, films, chromalin proofs, plates or any other material relating to … [the 1998 competition].” As I understand Mr McNamara’s evidence, without the requisite printing plates it would have been impossible to print 1998 labels. Further, it would not have been possible to generate new printing plates without the 1998 artwork, proofs or film. I see no reason to doubt the reliability of this evidence, particularly that concerning disposal of the printing plates.
Mr McNamara also said that changes to the printing process between 1998 and 1999 rendered it impossible for Pemara mistakenly to have printed 1998 labels in 1999, even if the 1998 printing plates had been available. The reasons for this conclusion are complex. In the absence of any cogent contradiction of this evidence, I will merely summarize them. Firstly, the labels (and stamps) were printed on both back and front. The “front” of the 1999 label, which includes the back or backs of the stamp or stamps, bears the distinctive yellow colour previously mentioned. The front of the 1998 label is red. On the other side of the label was printed the relevant property or other details of the stamp or stamps. After peeling, the printed side constitutes the face of each stamp. Plates were used to print both sides of the labels. The plates for the front of the label were designed to print sheets, each bearing a large number of impressions of the yellow or red front. The printing of the back of the label (including the face of each stamp) was more complex. It was necessary that the faces of all of the different stamps be printed in appropriate proportions. To facilitate this, plates were designed to produce sheets containing appropriate numbers of the various stamps. After printing, various cutting and perforating processes were performed. During preparation for the 1999 print run, it was realized that paper could be saved if the faces of the game stamps were arranged in a different way on the relevant plates. This resulted in the plates being smaller than, and laid out differently from the corresponding plates used in 1998.
The plates printing the common front and varying backs of the labels must be “aligned” and so must be the same size. Thus it would not be possible for the plate for the 1998 label front (ie the red side) to be matched with a plate bearing 1999 game stamp details. The converse is also true. Further, the cutting mechanism in 1999 was designed to conform to the 1999 layout of the plates. Even if it were possible to print labels using 1998 plates, the product would have been laid out in the 1998 form. The cutters would not have cut them appropriately. Finally, the printing machinery had been so modified for the purposes of the 1999 competition that it would not, in any event, have taken the 1998 plates. There may well have been other steps in the process which would also have been quite incompatible with the use in 1999, of the 1998 plates but to my mind, it is not necessary to take the matter any further. There is no reason to doubt Mr McNamara’s evidence. It establishes that an accidental printing of 1998 labels could not have occurred in 1999. There has been no suggestion of any deliberate printing. Any such suggestion would have been fanciful. I am satisfied that Pemara did not manufacture 1998 labels at any time after the conclusion of the 1998 production run. In reaching this conclusion, I have had regard to all of the evidence in the case, including that of the claimants. I dispose of this theory now because it appears to me to be unarguable on the evidence, nor was it pursued by the applicant with any real enthusiasm. The evidence conclusively pointing to this finding is that:
·material essential to the manufacture of 1998 labels had been disposed of or destroyed;
·adjustments made to the manufacturing and printing processes in 1999 were such that unintentional printing of useable 1998 labels was impossible in 1999; and
·there has been no suggestion that Pemara intentionally printed 1998 labels in 1999.
I proceed hereafter on the basis that a stamp which had a yellow back was derived from a 1999 label and that a stamp with a red back was from a 1998 label. A 1999 stamp will have an “M” on its face. A 1998 stamp will not have such an “M”. The converse of each proposition is also true.
It is also suggested that Pemara may have retained surplus 1998 labels and distributed these in 1999, innocently or otherwise, to the packaging manufacturers. The evidence lends no support to such a theory. In the course of Mr McNamara’s cross examination, the following exchange appears (TS 1458 l 31 – TS 1459 ll 103; ll 15-20):
Mr Couper: Are you saying that your instruction was … that everything to do with Project Puzzle [the 1998 Competition], all documents, all pieces of paper, all physical items to do with Project Puzzle were to be destroyed before you commenced work on Project Killer [the 1999 Competition]; is that right?
Mr McNamara: Correct.
…
Mr Couper: I take it then that things to be destroyed would have included left-over rolls of game stamps from Project Puzzle…?
Mr McNamara: If there were any.
Mr Couper: Now that was a clear instruction, was it, to destroy things including left-over rolls of game stamps?
Mr McNamara: It was a clear instruction to destroy everything, however we decided, for archival and reference purposes, that we should keep a few rolls in our safe which are still there today. So, yes, we destroyed everything except for a few rolls of sample labels that we kept.In other words, some labels were retained but they were in Pemara’s possession. It is true that in cross-examination, Mr McNamara indicated that Pemara may have retained some relevant records of the 1998 operation. It seems also that Mr Vine from Creata did not agree that the 1998 art work had been returned to Creata by Pemara. These matters are, however, very trivial and do not lead me to doubt Mr McNamara’s evidence. It seems most unlikely that Pemara retained 1998 labels at the commencement of the 1999 print run, even accepting the claimants’ evidence at face value.
MANUFACTURING EVIDENCE - CUPS
The packaging used by the respondent for both promotions was supplied by Anzpac, Polarcup and Detmold. As I have already indicated, Pemara supplied the labels to them for application to the promotional packaging.
Polarcup manufactures the disposable paper cups used by the respondent for its various soft drink, orange juice and thick-shake products. It manufactured the large and medium promotional cups used by the respondent in connection with both the 1998 and 1999 competitions. In both years double labels were affixed to large cups, and single labels were affixed to medium cups. Orange juice was supplied in medium cups (with single labels), although described as “large”.
Applicant’s theories relating to Polarcup
The applicant suggests two ways in which Polarcup may have unwittingly supplied 1998 labels in the 1999 competition. Firstly, it may have retained surplus 1998 promotional packaging and sent it to Walkers for use in the 1999 competition. Secondly, it may have applied 1998 labels, either manually or mechanically, to 1999 promotional packaging. This may have occurred in either of two ways. Either Pemara may have supplied 1998 labels to Polarcup or Polarcup may have retained unused labels from the 1998 production run and affixed them to cups in the course of the 1999 production run.
Polarcup evidence
The following table lists Polarcup employees during the 1998 and/or 1999 competitions who gave evidence.
Name Position 1998 Position 1999 Date of Affidavit Cross-examined Yes/No Transcript Reference Aldridge,
Brian ThomasTeam Leader Team Leader 29.05.2000 Yes 5205-5222 Boyd,
David RichardMachine Operator Machine Operator 21.09.1999 Yes 1669-1672 Byron,
Dwayne JohnTeam Leader Team Leader 29.05.2000 Yes 5223-5225 Clavell,
John EdwardTeam Leader Team Leader May 2000 Yes 5179-5195 Doering, Graham Machine Operator/
Acting Team LeaderMachine Operator/ Acting Team Leader 21.09.1999;
May 2000Yes 1665-1668;
5196-5203Erkkila,
HelenaQuality Assurance
Co-ordinatorQuality Assurance
Co-ordinator22.09.1999;
29.05.2000Yes 1750-1755;
5165-5175Groth,
Leonard FrankRaw Material Controller Raw Material Controller 21.09.1999 Yes 1659-1664 Hale,
Kelvin JohnPlant Manager Plant Manager 22.09.1999;
10.05.2000Yes 1562-1571 Kells,
RodneyQuality Assurance Operator Quality Assurance Operator 21.09.1999 Yes 1680-1682 Lewin,
Clinton RobertMachine Operator Machine Operator 22.09.1999 Yes 1674-1678 Manning,
Maureen MargaretProduct Manager Product Manager 22.09.1999 Yes 1622-1650;
1701-1704Stanley,
Charles JohnPaper Technician Paper Technician 22.09.1999 Yes 1651-1657 Presence of 1998 Labels or Packaging at Polarcup in 1999
Receipt and storage of 1998 labels
In 1998, red labels were delivered in cartons to Polarcup by Pemara. Each carton contained seven reels of labels with 9000 labels per reel. The reels were stored in a locked cage in the warehouse in accordance with an internal security protocol. The reels were later transferred, either to the office of the team leaders responsible for the production of the 1998 promotional cups, or to a locked cage on the factory floor. When required, they were issued to the operators of the paper cup machines by a team leader. Occasionally, labels or reels proved faulty. Such a reel was removed from the machine and returned to the locked cage in the warehouse.
Production waste
The production process generated two types of waste. The first comprised unused or unusable paper or labels. The second comprised cups with labels attached which had been rejected for quality assurance reasons. Production waste was placed into bins beside each machine and transferred to a compactor. A bin containing waste remained on the factory floor for no more than 12 hours. Material handlers cleared the factory floor of waste before each shift. Waste in the compactor was crushed and buried. For one reason or another, some reels of labels could not be used on the label application machinery. Such reels were kept in the locked cage on the factory floor and applied manually.
Presence of 1998 promotional packaging in Polarcup premises after conclusion of 1998 production run
Scott Robinson patronized the drive-through section at Wollongong on 21 June 1999 on his way to an SES meeting. He purchased two McValue Meals and received eight game stamps which he put into his SES bag. He gave them to his wife on the night of 28 June 1999, that is a week later. On Thursday, 1 July he and his son patronized the drive-through section at Dapto after visiting the doctor. They ordered one McValue Meal and one Happy Meal and received four stamps. They placed them on the tray mat upon arriving home and realized that they had completed the railway station set. Mr Robinson was certain that his stamps were obtained in the course of the 1999 competition. He could recall “on more than one occasion receiving red-backed stamps attached to packaging” after the media attention concerning the competition. It was possible that the red stamps which he received were those in exhibit 106. His subsequent evidence suggested that they were not. He said that he had not kept them. He did not compete in the 1998 competition. Although he purchased McDonald’s products in 1998, he did not “actively” collect game stamps.
He recalled receiving the tray mat from his father-in-law, Doric Smith on 25 June with two stamps on it. He could not remember which they were. One of these would have been a railway station. At this time, he already had another station stamp in his bag. About an hour-and-a-half to two hours after receiving the stamp on 1 July, he heard that there was some dispute concerning the competition. He was unable to identify the packaging in exhibit 10 as being similar to that which he had received during the competition.
Mr Doric Malcolm Smith said that he and his grandson patronized the Dapto restaurant on 25 June. He collected a tray mat and also received game stamps, including one for Fenchurch Street Station. He peeled off the back of the stamp, and his grandson affixed it to the mat. Later that day, when Mr Scott Robinson picked up his son, the boy took the tray mat with him. Mr Smith did not compete in the 1998 competition.
There is no reason to doubt Mr Smith’s evidence that he obtained the Fenchurch Street Station stamp from Dapto on or about 25 June. That means that the King’s Cross stamp must have come from either Wollongong (obtained by Mr Robinson), Fairy Meadow (obtained by Mr & Mrs Robinson with cherry pies) or from Dapto (obtained by Mr Robinson and his son on 1 July). As cherry pies were not part of the 1998 promotion, packaging received with them must have been 1999 packaging. As I have previously explained, there is little prospect that a 1998 label could have been attached to 1999 packaging. The stamp is a double and so could not have been obtained from a roll of spare labels. It thus seems highly unlikely that the King’s Cross stamp could have been obtained at Fairy Meadow. This means that it must either have been obtained by Mr Robinson at Wollongong or by Mr Robinson and his son at Dapto.
According to Mr Robinson, he went home from Dapto on 1 July and added the station stamp to the tray mat, thus producing a set of four. I find it strange that he should not have been able to recall which stamp it was that he used to complete the set, given the consequences of his having done so. This view is reinforced by the fact that an hour or two later, he heard that there was some difficulty concerning the competition. One would expect that he would have made an effort to keep fresh in his mind details surrounding his participation. Even if, at that stage, he was unable to remember the actual property in question, one would have expected him to be able to remember, for example, the position which it occupied on the coupon. Further, Mrs Robinson had apparently affixed two of the other stamps to the mat. I would have expected her to have some recollection of the property which was outstanding. I do not exclude the possibility that they are being truthful when they say that they do not know, but it does seem a little unlikely.
To this must be added the curiosity concerning their evidence about red-backed game stamps. They asserted that they had frequently received such stamps. Clearly, the King’s Cross stamp would have had a red back. They also have two red-backed food redemption stamps. Their evidence suggests that these were not two of a pair, nor was either the mate of the King’s Cross stamp. No explanation is given as to where the other three red stamps might be. The absence of “mates” is curious in view of the relatively large number of stamps which were kept. (See exhibit 105 and 106.) I suspect that Mr & Mrs Robinson were exploiting the “red stamp” issue because they perceived it to be a basis for attack upon the system adopted by McDonald’s to protect the integrity of the 1999 competition. Although I have considerable reservations about the evidence of Mr & Mrs Robinson, I do not reject it out of hand. It must be considered in the context of the relevant restaurant evidence.
The evidence from Dapto appears to exclude the possibility of 1998 stock in the restaurant in 1999. Out of completeness I also observe that Mr Eldridge disposed of the remainder of the roll of spare labels for the 1998 competition. The evidence from Fairy Meadow similarly establishes that no 1998 promotional stock was in the restaurant during the 1999 competition, as does the evidence from Wollongong.
Ms Robinson thought that the packaging in exhibit 10 was similar to that received by her during the 1999 competition. Mr Robinson was not sure. I have given my reasons for concluding that it is unlikely that 1999 packaging could bear 1998 stamps. I have also concluded that if a carton of 1998 packaging were released in a restaurant, the staff would probably notice. This is a double stamp and cannot have come from a roll of spare labels. Given these matters and my criticisms of the claimant’s evidence, including the fact that neither Mr Robinson nor Mrs Robinson actually recalls receiving the disputed stamp, I am not satisfied on the balance of probabilities that it was received by either of them, or by anybody else in the course of the 1999 competition.
JAMIE ALEXANDER SILK
Other Witnesses for Claimant: Nil
Restaurant: Mackay (City Express)
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 10 June 1999
From November 1996 until December 1998 Mr Silk was living in England where he rarely purchased McDonald’s products. He returned to Australia and, on 27 January 1999, started work at the “Electric Dreams” amusement arcade in Victoria Street, Mackay. He would open the restaurant at about 9.00 am from Monday to Thursday and on Fridays and Saturdays, he would start work early in the afternoon. On most morning shifts he would purchase breakfast at the McDonald’s restaurant located a couple of doors down the road. He would usually purchase a muffin, hash brown and an orange juice. The hash brown bag and the orange juice cup bore McMatch & Win stamps. On evening shifts he would purchase a large Burger Meal with large fries and a large Diet Coke. He would eat McDonald’s on one of the two nights each week on which he worked.
He recalls the 1999 competition. He obtained a tray mat. Every stamp which he collected had yellow backing and yellow arches on the front. When he received a duplicate stamp, he would place it in a small plastic coin bag in his office. This was a communal collecting point which he maintained with Scott Chambers, another employee. He kept his tray mat (with stamps affixed to it) in a carry bag. He recalled obtaining the Mayfair stamp about one week after the competition started. He had purchased a muffin, hash brown and an orange juice. The stamp had a yellow back and golden arches. On 10 June 1999 he did not have breakfast because his employer was away. At about 11.00 am, he went to the Mackay restaurant and purchased a meal consisting of one Big Mac, one large fries and one large Diet Coke. One of the stamps on the large fry box was a Park Lane stamp. He obtained a redemption envelope. His claim was unsuccessful.
Exhibit 72 is Mr Silk’s claim coupon. The Park Lane stamp is in very bad condition, hardly accurately described by his suggestion that the bottom is slightly faded. (See par 27 of his affidavit.) He agreed that the packaging in exhibit 10 was similar to that on which he had received his stamps. All had yellow backing. He understood the Park Lane stamp to have come from a large fry box, although it could have come from a drink. It was certainly one part of a double label. He did not know the identity of the other stamp. The Park Lane stamp is in much the same condition in which he received it. He spoke to a lady called Fiona Miller at the Mackay restaurant shortly after receiving the stamp. He denied that she said anything about the stamp being faded.
The Mackay restaurant is actually known as the City Express restaurant. The evidence from the restaurant indicates that no 1998 packaging was in the restaurant following the end of the 1998 competition, it having been, by then, then identified and transferred to another restaurant. It therefore seems unlikely that there was any 1998 packaging in the restaurant in the course of the 1999 competition. Mr Silk claimed to have received 1999 packaging. It is unlikely that a 1998 double stamp could have been attached to such packaging. Neither Ms Thomson nor Mr Gilmour has seen the roll of spare labels since the end of the 1998 competition. It is not relevant for present purposes. For reasons previously given, I consider it unlikely that a carton of 1998 packaging could have been distributed in 1999 without the staff becoming aware of it.
Ms Miller said that she had a conversation with a man who was clearly Mr Silk. He showed her a Park Lane stamp and drew her attention to the fact that it was faded. She asked how it had become faded. He replied that he had found it at the bottom of his car. I see no reason to reject Ms Miller’s evidence. Mr Silk’s statement to her that he had found the stamp at the bottom of his car suggests strongly that he could not account for its provenance with any certainty. I certainly could not accept his evidence as to receiving it in 1999. I am not satisfied on the balance of probabilities that the disputed stamp was received in the course of the 1999 competition.
GARY ARTHUR STEVENS
Other Witnesses for Claimant: Nil
Restaurant: Browns Plains
Disputed Game Stamp: Double (King’s Cross)
Alleged Date of Acquisition: 16 July 1999
Mr Stevens obtained a McMatch & Win tray mat at the Browns Plains restaurant shortly after the beginning of the 1999 competition. On 16 July, at about 12.40 pm, at that restaurant, he ordered a large Big Mac Meal, consisting of a Big Mac burger, large fries and a large Coke. He received four game stamps, one of which was King’s Cross. Its back was red. This enabled him to complete the Marylebone Street, Fenchurch Street, Liverpool Street, King’s Cross Station property set. On 17 July he went to the Browns Plains restaurant and was handed a redemption envelope. His claim was unsuccessful. He said that he had not submitted any 1998 game stamps in his claim as he did not participate in that competition, nor had he swapped stamps with anybody.
It seems from his oral evidence that the King’s Cross Station was the last of the set to be obtained and that he obtained them all from Browns Plains. By the time he submitted them, he was aware that one had a red back and the others, yellow backs. He was not sure whether he knew about the controversy concerning the competition before he submitted his claim. He could not recall whether he had seen a current affairs programme dealing with the problem prior to so doing. He was shown exhibit 10. He could not be sure that it was the same as the packaging with which he received his stamps. For some reason, he submitted a statutory declaration with his claim. Yet he asserted that he could not see any reason why his claim should be controversial. The cross-examination at TS 477-8 discloses an odd mixture of concern that the stamp might be controversial and that it might be lost in the mail. The curiosity of this mixture suggests a lack of frankness.
The evidence from Browns Plains indicates that there was no 1998 packaging in the restaurant during the 1999 competition. For the sake of completeness I should say that Mr Grady said that he had disposed of the roll of spare 1998 labels. By 16 July, given the state of publicity concerning the competition, I would have expected virtually everybody in Australia to have been aware of the general nature of the problem which the respondent was experiencing. I find it a little difficult to accept that Mr Stevens would not have realized that the difference in colour of the backing on the stamps was of some significance. Further, given the publicity, it seems unlikely that restaurant staff would not have noticed a red label on a fry box or cup at the time of supplying it, let alone the distribution of 1998 packaging. It is most unlikely that the stamp came with 1999 packaging.
I am not satisfied that Mr Stevens received the disputed stamp in the course of the 1999 competition.
RODNEY GEORGE TAYLOR
Other witness for Claimant: Kerrie-Anne Dobson
Restaurant: Annerley, Springwood
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Early in the competition
Mr Taylor recalled the commencement of the 1999 competition. At an early stage, he purchased a cherry pie and medium shake, receiving stamps with red backs with his purchases. Even if his cup bore a red stamp, it is difficult to see how a pie box could bear such a stamp as pies were not promotional items in 1998. Later in his evidence (TS 814-5) he said that he had received only one red stamp. One of the stamps was Trafalgar Square. On 24 July 1999 he received another stamp at the Coolangatta restaurant which stamp enabled him to complete the Trafalgar Square, Fleet Street and The Strand set. He subsequently obtained a redemption envelope and submitted his claim on or about 30 July 1999. It was rejected. He did not enter the 1998 competition. During the 1999 competition he kept all stamps in the console of his car. He recalls that he cleaned the car about a week after the commencement of the competition, at which time he threw away rubbish. His fiancee was with him at the time he received the Trafalgar Square stamp. They received a double stamp and a single stamp. By 24 July he had six, seven or eight stamps. He only kept those which “seemed relevant”.
On 24 July, he purchased a breakfast which included a hash brown with a Bacon & Egg McMuffin and coffee. He also purchased a breakfast with a Sausage & Egg McMuffin. He does not recall how many stamps he received on that occasion, but they included The Strand and Fleet Street. By this time he had heard that there was a controversy surrounding the competition. He knew that part of the controversy concerned red stamps which the respondent alleged were from the 1998 competition. He could not recall whether the cups in exhibit 10 were similar to those which he saw during the competition. He also said that he had not peeled the Trafalgar Square stamp. His fiancee had done so. He ate at McDonald’s during 1998, purchasing items with stamps attached. He denied that he had kept any stamps. He said, however, that he would open them to see if he had won an “instant” prize. As far as I can see Mr Taylor did not identify the restaurant at which he obtained his Trafalgar Square stamp.
Mr Taylor’s fiancee, Kerrie-Anne Dobson said that she recalled visiting the drive-through facility at the Springwood restaurant with Mr Taylor. On another occasion, whilst going to visit a friend at the Princess Alexandra Hospital, they patronized a drive-through facility in that vicinity, presumably the Annerley restaurant. She was with him when he received the two stamps which completed the set. This was at breakfast. She has two children who live with them, her son Ryan, aged fourteen and her daughter Elise, aged twelve. Mr Taylor has lived with them since February 1998. She thought that her children had previously received instant food prizes and may have gone to McDonald’s with her during the winter of 1999. She could not actually recall their having done so. She said that her children were of an age at which they may well have gone to McDonald’s by themselves and collected stamps. It was suggested to her that they may also have done so during 1998. She did not think that they would have gone there without her in 1998. There was an air of unreality about this aspect of her evidence. It sounded much more like wishful thinking than an accurate reflection of her beliefs. The children did not give evidence. Ms Dobson also said in cross-examination that prior to their prize claim being rejected, they had consulted the Department of Fair Trading.
I have already summarized the Annerley and Springwood evidence in connection with the Leishman and Denniss claims. I keep these claims in mind in assessing Mr Taylor’s claim. They offer no support for Mr Taylor’s claim. The absence of evidence as to the actual place and time of acquisition of the disputed stamp creates concern. The assertion by Mr Taylor that he had obtained red stamps early in the competition and his subsequent statement that there was only one such stamp is also of some significance. I have also expressed some doubts as to Ms Dobson’s evidence. In addition, there is the failure to call her children. I am not satisfied that the disputed stamp was obtained during the 1999 competition.
KIRSTIE SHEREE TROUTMAN
Other Witnesses for Claimant: Nil
Restaurant: Loganholme
Disputed Game Stamp: Double (Marlborough Street)
Alleged Date of Acquisition: The first two to three weeks of the promotion and before 25 June 1999
Ms Troutman recalled the commencement of the 1999 competition. She obtained a tray mat at the Loganholme restaurant. In the first two or three weeks of the promotion, she patronized the drive-through facility at that restaurant, ordering a large Cheeseburger Meal, consisting of a cheeseburger, large fries and a large Coke. She received four game stamps with the purchase, including the disputed stamp. She cannot remember the colour of its back. It enabled her to complete the Bow Street, Marlborough Street and Vine Street set. On 14 July she presented her tray mat at the restaurant and obtained a redemption envelope. Her claim was unsuccessful. Exhibit 38 contains the redemption envelope. Exhibit 39 is her tray mat which bears a 1998 King’s Cross stamp. This is the mate of the Marlborough Street stamp. Thus, on the day in question, she must have received one 1998 double label and one 1999 double label as there are no other 1998 stamps on the tray mat. This inference assumes that she affixed all stamps to the tray mat.
She said:
I am certain I did not use last year’s game stamp as I have moved house and whatever was lying around was thrown away in the bin. I am also certain that I did not use last year’s game stamps as I did not play the game and the only thing I collected was the food.
Whether or not a claimant participated in the 1998 competition is relevant only to the extent that it supports his or her claim that a disputed stamp was obtained during the 1999 competition. A denial of “playing the game” in 1998 became something of a mantra in the claimants’ evidence. Such a denial had different meanings for different witnesses. In Ms Troutman’s case, her use of the expression did not mean that she had not received or used stamps in 1998. She had received and used food redemption stamps and therefore she had probably also received Monopoly stamps. She meant only that she had not consciously collected those stamps.
She is married with one young child. She identified the fry boxes in exhibit 10 as similar to that on which she obtained the Marlborough Street stamp. The Marlborough Street and King’s Cross stamps are in poor condition because she dropped them into her food. Ms Troutman, at one stage, chose to opt out of these proceedings, but she subsequently withdrew that election. She said that she opted out because she thought that she would not have the time or the opportunity to participate in proceedings. She unexpectedly found that she was able to do so and re-entered the class.
The restaurant evidence indicates that there was no 1998 packaging in the restaurant during the 1999 competition. At the end of that competition a conscious effort was made to use up remaining stock with the stamps removed. There was a full field inspection in September 1998 which involved the usual preparation. Ms Davey recalls disposing of the roll of spare 1998 labels, although that is not presently relevant. Ms Troutman did not claim to have received the Marlborough Street stamp with 1998 packaging. She said that the packaging in exhibit 10 was similar to that which she had received. The only possible explanation is that 1998 stamps were affixed to 1999 packaging in the course of manufacture. I have already indicated that I consider that to be highly unlikely. Ms Troutman’s explanation for having opted out of the proceedings is a little unconvincing. After all, not all class members have ventilated their claims in proceedings to date. She could well have indicated that she was not available to participate in the proceedings at the present time but remained in the class. One other possible explanation for her withdrawing is uncertainty as to the validity of her claim. I am not satisfied that the disputed stamp was received in the course of the 1999 competition.
JOSEPH TERENCE WAYNE WHITTAKER
Other witness for Claimant: Norma Kay Whittaker
Restaurants: Newmarket, Mt Gravatt
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Between 10 – 25 June 1999
Mr Whittaker recalled the commencement of the 1999 competition. On 25 June, he obtained a tray mat at the Newmarket restaurant. Some time between 10 June and 25 June he patronized the drive-through facility at Newmarket, ordering a McMuffin Breakfast Value Meal. He received a game stamp with a hash brown. The stamp was for Trafalgar Square. This enabled him to complete the Trafalgar Square, Fleet Street and The Strand set. About 5.30 pm on 25 June he presented his tray mat to the restaurant manager and obtained a redemption envelope. His claim was unsuccessful. He could guarantee that he had not used a 1998 stamp as he cleans out his car regularly and did not compete in the 1998 competition. He has not swapped stamps with anyone else. His children have all left home.
In his oral evidence he said that he could not be sure that he had personally received the Trafalgar Square stamp. He may have received it from his wife. On one view of it, that might be thought to be inconsistent with his assertion that he had not “swapped” stamps. However it may be that he would not describe a transfer between husband and wife as a “swap”. He considered that the hash brown bag in exhibit 10 was similar to that on which he had received his stamp. He probably meant only that the bag which he received was a “light envelope”. He thought that it “had a yellow sticker” on the outside. He did not know whether the Trafalgar Square stamp had yellow backing but thought it probably did. He kept his stamps in the console of his vehicle. He did not know in which order he had received the winning set. After obtaining the tray mat, he would affix the stamps to it whilst in the vehicle. His wife also stored stamps in her car. They would also be affixed to the tray mat. He thought that the disputed stamp was his rather than his wife’s because it appeared to be discoloured. He carried his coffee mug in the console of his car. That may have caused the discolouration.
Ms Whittaker recalled the commencement of the 1999 competition. Throughout the competition, she patronized the drive-through facilities at Newmarket and Mt Gravatt about three times per week. She would purchase a Breakfast Meal which included a hash brown, bearing one game stamp. She removed the game stamps and kept them in the console of her car which had been purchased in May 1999. She recalled the occasion on which her husband matched the three properties in the set. He had gone to both cars, presumably to collect stamps. When he returned to the house, he was very excited. He showed her the winning property set. All of the stamps in the console of her car were from the 1999 competition. She was not aware of a similar competition having been conducted in 1998. Ms Whittaker’s affidavit was sworn on 29 September 1999 whilst her husband’s was sworn on 17 August. She could not identify the packaging in exhibit 10 as being similar to that which she received during the competition, nor could she say whether the stamps had yellow backing.
I see no reason to reject Mrs Whittaker’s evidence that she obtained stamps from Newmarket and Mt Gravatt during the course of the 1999 competition and that her car was a 1999 model. The evidence from Mt Gravatt establishes that there was no 1998 stock in the restaurant during the 1999 competition. Mr Slennett-Roberts, the owner-operator, said that he had not seen the roll of spare labels after the end of the 1998 competition. Mr Mourilyan said that he had understood, at the end of the 1998 competition, that the manager was going to dispose of it and saw him walking away with it, although he did not actually see it discarded. This evidence makes it most unlikely that the roll was still in the restaurant during the 1999 competition. The Newmarket restaurant was relocated just before the commencement of the 1999 competition. Stock had been run down to facilitate the relocation. It is therefore reasonable to infer that any 1998 stock would have been identified at that time. Other evidence indicates that there was no 1998 stock in the restaurant during the 1999 competition. The fact that all stock was identified and a decision made as to whether to take it to the new restaurant makes it quite unlikely that the 1998 roll of spare labels was in the restaurant during the 1999 competition. I also keep in mind the fact that Mr Leishman named this restaurant as a possible source of one or more of his stamps.
Given the change in Mr Whittaker’s evidence concerning acquisition of the stamp, it would be very difficult to accept at face value his assertion that it was obtained in the course of the 1999 competition, particularly having regard to the restaurant evidence. In the circumstances I am not satisfied that the stamp was obtained during the 1999 competition.
ORDERS
I conclude that all of the present claimants must fail in their claims. It is not necessary for me to address the various legal questions which may otherwise have arisen. Indeed, it would be difficult, and perhaps inappropriate to do so in the absence of findings of fact capable of supporting one or other of the claims. In any event, I understand that as a result of a decision of the Full Court on appeal from an interlocutory decision, the more substantial legal issues have been resolved, subject to the possibility of an application to the High Court for special leave to appeal. Upon publication of these reasons, I will adjourn the matter in order to enable the parties to consider them. I will subsequently hear formal applications for further findings of fact, at which time I will also hear submissions as to orders and costs.
I certify that the preceding eight hundred and thirty-nine (839) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 9 March 2001
Counsel for the Applicant: At various times the applicant was represented by the following counsel:
Mr K G Bennett
Mr J N Gallagher SC
Mr Griffin QC
Mr S S W Couper QC
Mr D Gordon
Ms D A SkennarSolicitor for the Applicant: Shine Roche McGowan Counsel for the Respondent: At various times the respondent was represented by the following counsel:
Mr P D M McMurdo QC
Mr M Tobias QC
Mr D RobinsonSolicitor for the Respondent: Baker & McKenzie Dates of Hearing: 1-October 1999; 4-8 October 1999; 11-15 October 1999; 20-22 October 1999; 26-29 October 1999; 11 February 2000; 21-25 February 2000; 28 February – 3 March 2000; 6-9 March 2000; 13-17 March 2000; 22-24 March 2000; 22-26 May 2000; 29 May – 2 June 2000; 7 July 2000; 17-20 July 2000 Date of Judgment: 9 March 2001
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