Hurley v McDonald's Australia Ltd

[2000] FCA 381

FEDERAL COURT OF AUSTRALIA

Hurley v McDonald’s Australia Ltd [2000] FCA 381

JANETTE LYN HURLEY v McDONALD’S AUSTRALIA LIMITED
Q 194 OF 1999

DOWSETT J
9 MARCH 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 194 OF 1999

BETWEEN:	JANETTE LYN HURLEY APPLICANT
AND:	McDONALD'S AUSTRALIA LIMITED RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	9 MARCH 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The proposed amendments to the defence be allowed in their entirety.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 194 OF 1999

BETWEEN:	JANETTE LYN HURLEY APPLICANT
AND:	McDONALD'S AUSTRALIA LIMITED RESPONDENT

JUDGE:	DOWSETT J
DATE:	9 MARCH 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant has previously amended the statement of claim by leave, and the respondent now seeks to deliver an amended defence.  The applicant opposes certain aspects of the proposed amendments.  I will deal with them separately.  Firstly, the respondent has previously admitted that it was a condition of entry to the competition that to be eligible to win a Collect and Win prize, customers were required to collect stamps “issued” during the course of the 1999 competition.  The respondent now seeks to delete the word "issued" and insert the words, "printed for and distributed".  It seems quite clear from various passages in the transcript of exchanges between counsel and me in the early parts of the trial, that it was then made clear by the respondent that its case was that only tickets printed for the purposes of the 1999 competition could be valid for the purposes of that competition.  Nonetheless the applicant now resists the amendment, saying that had she known that such was the respondent's case, the cross‑examination of one of the witnesses would have proceeded differently. 

2. The witness in question is the witness McNamara who is employed by a company which printed and distributed the stamps to the various packaging manufacturers.  It is suggested that in the course of his evidence he was not cross-examined in detail as to the distribution of 150 million of the 1998 competition stamps and that he may have been cross-examined in more detail had the proposed amendment been part of the case at that time.  I simply cannot accept that submission.  Cross‑examination as to the fate of the 150 million tickets would relate solely to the question of whether or not it is possible or likely that such tickets, or any of them could have surfaced in the course of the 1999 competition.  The argument as to whether or not tickets need only be “issued” or “printed and distributed” in order that they be valid is purely legal,  I can see no factual matter raised by the proposed amendment which has not always been in issue between the parties.

3. The second respect in which the proposed amendment is opposed is in connection with pars 10 and 11 in which the respondent pleads with some precision the legal arguments arising from various “exemption clauses” in the conditions of entry to the competition.  The applicant submits that had she known that these arguments were to be advanced, she would not have taken a decision, made in the early days of the trial, not to challenge the extent to which the various claimants had opportunity to be aware of these conditions.

4. At the commencement of the trial, I understood it to be in issue whether or not the conditions had been displayed in all of the stores.  However the applicant abandoned this point, as I understood it, because she accepted that the evidence would show that the conditions had been so exhibited in all stores.  In any event, the proper construction of all of the conditions as published has always been a major issue in this case, and there is no doubt that the respondent has always urged that on the proper construction of those conditions, it had no liability other than to persons holding tickets validly printed and distributed for the 1999 competition.

5. In those circumstances I can see no way in which the applicant can be prejudiced by the rather more precise pleading in the proposed amendments. I will allow the proposed amendments to the defence in their entirety. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            5 April 2000

Counsel for the Applicant:	Mr D Gordon Ms D Skenner
Solicitor for the Applicant:	Shine Roche McGowan
Counsel for the Respondent:	Mr P McMurdo QC Mr D Robinson
Solicitor for the Respondent:	Baker & Mackenzie
Date of Hearing:	6-9 March 2000
Date of Judgment:	9 March 2000