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Hurley v McDonalds Australia Ltd

Hurley v McDonalds Australia Ltd

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FEDERAL COURT OF AUSTRALIA
Hurley v McDonald's Australia Ltd [1999] FCA 1728
PRACTICE & PROCEDURE – application for leave to appeal – where trial judge refused to grant applicants leave to amend statement of claim – where leave to amend sought when proceedings part-heard - whether amendment futile because no arguable cause of action disclosed – whether amendment ought not to be allowed at such a late stage of proceedings – whether decision appealed from attended by sufficient doubt to warrant its reconsideration
TRADE PRACTICES – unconscionable conduct – whether arguable that mere reliance on terms of contract, without more, can constitute unconscionable conduct
Trade Practices Act 1974 (Cth), s 51AA, s 51AB, s 51AC
Cameron v Qantas Airways Ltd (1994) 55 FCR 147, cited
Qantas Airways Ltd v Cameron (1996) 66 FCR 246, cited
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, applied
JANETTE LYN HURLEY v MCDONALD’S AUSTRALIA LTD
Q250 OF 1999
HEEREY, DRUMMOND & EMMETT JJ
17 DECEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 250 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

JANETTE LYN HURLEY
Appellant

AND:

MCDONALD'S AUSTRALIA LIMITED
ACN: 000 697 763
Respondent

JUDGES:

HEEREY, DRUMMOND & EMMETT JJ

DATE OF ORDER:

17 DECEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. Leave to appeal be refused with costs.
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 250 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

JANETTE LYN HURLEY
Appellant

AND:

MCDONALD'S AUSTRALIA LIMITED
ACN: 000 697 763
Respondent

JUDGES:

HEEREY, DRUMMOND & EMMETT JJ

DATE:

17 DECEMBER 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE COURT:

Ms Janette Lyn Hurley (“the Applicant”) has applied for leave to appeal from the refusal by Dowsett J to give leave to file a fifth amended statement of claim in proceedings which are part-heard before his Honour. The respondent in the proceedings, and to this application, is McDonald’s Australia Limited (“McDonalds”). The application for leave to appeal is opposed. When the matter was called on, the Court directed, without expressing any view at that stage on the merit of the leave application, that the parties argue the substance of the appeal at the same time as the application for leave.
BACKGROUND
McDonalds operates a restaurant chain throughout Australia. In May 1999, McDonalds commenced to advertise and promote a competition known as “Monopoly McMatch and Win Competition” (“the 1999 Competition”). The 1999 Competition was based on the well known game of Monopoly. That game involves players moving around a board on which there are marked various items of real estate that represent parts of a well known city or cities. Items are grouped together in different colours. Items of the same colour are generally found within close proximity to each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1728
Decision Date: 17 DECEMBER 1999

CaseChat Overview and Summary

Janette Lyn Hurley sought leave to appeal against the refusal of Dowsett J to allow her to file a fifth amended statement of claim in the proceedings against McDonald's Australia Limited. The proceedings were part-heard before Dowsett J. McDonald's opposed the application for leave to appeal. The Court directed that the substance of the appeal be argued simultaneously with the application for leave.

The central legal issue in this case was whether the Applicant should be granted leave to appeal against the refusal by Dowsett J to permit her to file a fifth amended statement of claim. The Applicant argued that the proposed fifth amended statement of claim would correct deficiencies in the previous statements of claim and ensure that the proceedings could be fairly determined. McDonald's opposed the application, contending that allowing a further amendment would cause significant delay and prejudice, and that the proposed changes did not address the fundamental issues already identified by Dowsett J.

The Court considered the principles governing the grant of leave to appeal and the amendment of pleadings. It noted that leave to amend pleadings is not freely granted, particularly in part-heard proceedings, and that the proposed changes must not only be relevant but also necessary to address the substantive issues in dispute. The Court found that the proposed fifth amended statement of claim did not sufficiently rectify the deficiencies identified by Dowsett J and that permitting further amendments would likely result in undue delay and prejudice to McDonald's. Accordingly, the Court refused the application for leave to appeal.

As a result of the Court's decision, the Applicant's application for leave to appeal was refused, and she was ordered to pay costs.

Orders

Orders of the court

1. Leave to appeal be refused with costs.

Background

Background to the litigation

Ms Janette Lyn Hurley (“the Applicant”) has applied for leave to appeal from the refusal by Dowsett J to give leave to file a fifth amended statement of claim in proceedings which are part-heard before his Honour. The respondent in the proceedings, and to this application, is McDonald’s Australia Limited (“McDonalds”). The application for leave to appeal is opposed. When the matter was called on, the Court directed, without expressing any view at that stage on the merit of the leave application, that the parties argue the substance of the appeal at the same time as the application for leave.BACKGROUND McDonalds operates a restaurant chain throughout Australia. In May 1999, McDonalds commenced to advertise and promote a competition known as “Monopoly McMatch and Win Competition” (“the 1999 Competition”). The 1999 Competition was based on the well known game of Monopoly. That game involves players moving around a board on which there are marked various items of real estate that represent parts of a well known city or cities. Items are grouped together in different colours. Items of the same colour are generally found within close proximity to each other in the real world. Each colour group has a different value from other colour groups. The aim of the game is to acquire as many items as possible. There are advantages for a player in securing all of the items in a particular colour group because a player who does so may then “develop” the sites within that group. Under the 1999 Competition, customers of McDonalds were to be given “game stamps” upon purchase of certain food products. The form of Monopoly board most commonly found in Australia is one in which the items of real estate are located in London. Game stamps were to correspond with items of real estate on the London Monopoly board. The object of the 1999 Competition was to obtain game stamps that correspond with all of the items in a particular colour group. Upon doing so, and complying with the procedural requirements of the 1999 Competition, a customer would be entitled to a prize that corresponded with that particular colour group. The promotional material relating to the 1999 Competition specified the prizes, and the number of prizes of each description, that were available to be won. For example, the most valuable set on the London based board are Mayfair and Park Lane. The prize which corresponded with the Park Lane and Mayfair group was a motor vehicle. Other prizes corresponded with other colour groups. The prizes and the numbers available were stated to be as follows:Prize Number of PrizesTo be Won· Honda HR-V Sport motor vehicle 8· Aussie Home Loans - $50,000 cash 1· Aussie Home Loans - $200 cash 800· Playstation Platinum Pack 75· Disneyland Holiday with Air New Zealand 25· Samsung Television and DVD Player 30· Samsung Camcorder 40· Toys “R” Us $200 Voucher 100· IBM Aptiva Home Computer 25· Hasbro Classic Games Pack 500 Under the 1999 Competition, customers at restaurants operated by McDonalds were to be handed a tray mat that showed the coloured groups of items on the London Monopoly board. Customers were required to affix each game stamp to that part of the tray mat that corresponded with the particular game stamp. If a customer acquired a complete set of game stamps, the tray mat with the stamps attached was to be submitted to McDonalds by 15 August 1999.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 250 OF 1999

BETWEEN:	JANETTE LYN HURLEY Appellant
AND:	MCDONALD'S AUSTRALIA LIMITED ACN: 000 697 763 Respondent
JUDGES:	HEEREY, DRUMMOND & EMMETT JJ
DATE OF ORDER:	17 DECEMBER 1999
WHERE MADE:	BRISBANE

JUDGES:	HEEREY, DRUMMOND & EMMETT JJ
DATE:	17 DECEMBER 1999
PLACE:	BRISBANE