Hurley v McDonald's Australia Ltd [1999] FCA 1497

FEDERAL COURT OF AUSTRALIA

Hurley v McDonald's Australia Ltd ]1999] FCA 1497 JANETTE LYN HURLEY v McDONALD'S AUSTRALIA LIMITED ACN 000 697 763 Q 194 of 1999 DOWSETT J 5 NOVEMBER 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 194 OF 1999

BETWEEN: JANETTE LYN HURLEY

Applicant

AND: McDONALD'S AUSTRALIA LIMITED ACN 000 697 763

Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 5 NOVEMBER 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 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 ACN 000 697 763

Respondent

JUDGE: DOWSETT J

DATE: 5 NOVEMBER 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant has applied to amend her statement of claim and reply. I have already refused the application to amend the statement of claim. The trial has now been proceeding for about a month. Two of the proposed amendments to the reply are opposed. In order to understand their significance, it is necessary to understand something about the cause of action. 2 As is well-known, between June and August of this year, the respondent conducted a competition in conjunction with the retail sale of its fast-food products through stores throughout Australia. Some of the stores are operated by the respondent; others are operated by franchisees. The competition borrowed the get-up associated with the well-known parlour game "Monopoly". In the course of the competition the respondent supplied to persons buying certain of its fast-food products, small "game stamps" which were affixed to the relevant products in such a way that the faces of the stamps could not be seen at the point of purchase. They could, however, be easily removed and identified after purchase. The faces of many of the stamps were designed to represent the various "property" cards used in the game of Monopoly in that each bore the name of a well-known geographical feature in Greater London such as Pall Mall, Mayfair or Kings 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 "set", as did four London railway stations. 3 As with the game of Monopoly each of the game tickets in a set (other than the railway stations) bore a distinctively coloured bar. Thus game tickets showing Park Lane or Mayfair each bore a blue bar, whilst game tickets showing properties in another set, Regent Street, Oxford Street and Bond Street, bore green bars. The idea was that any player who obtained game tickets for all of the properties in a particular set would win the prize identified for that set. Thus one needed both Park Lane and Mayfair in order to win a motor car. This part of the competition was called "Collect and Win". Some of the game stamps did not bear property names, but rather indicated that the player had won a food prize which could be redeemed at any of the stores. Others indicated that the player had won what was called an "Instant Win", immediately entitling him or her to a major prize without collecting a property set. Still others entitled players to participate in another "draw" for advertised prizes which had not been claimed. Only the Collect and Win section of the competition is presently relevant. 4 An integral aspect of the Collect and Win section was the supply by the respondent to players of what have been called "game mats". I understand that these mats were supplied as table mats for persons consuming products within the various stores and were also supplied to people who purchased products at "drive-through" facilities. The game mats identified the various property sets, reproducing in enlarged form the face of each game stamp and grouping them in their sets. The prize associated with each set appeared on the enlarged reproduction of each game stamp in that set. A player was to affix the relevant game stamps to the enlargements, thus completing the set. That part of the mat which related to the set in question could then be cut out and forwarded to those conducting the competition. The back of the mat was so designed that when a set was cut out, the back of the excised portion would provide a space in which the player could enter his or her name, address and telephone number. The game mat also bore instructions on how to play and referred to notices erected in the stores which set out the complete conditions. I will refer to them in more detail at a later stage. The game mat and the conditions also identified the number of major prizes which were available in the competition. The respondent conducted a similar competition in 1998, however the game stamps used on that occasion differed from those used for the 1999 competition in some ways which were visible and some which were not. Over 100 million stamps were printed for the 1999 competition, as I have been informed. 5 Given the very large number of tickets to be issued, reflecting the large number of individual products likely to be purchased bearing game stamps, it was necessary for the respondent to exercise control over the number of opportunities available to win the major prizes. This was done by regulating the number of stamps printed for one property in each set so that the opportunities to win reasonably reflected the number of prizes available in that category. I will refer to those properties as "control properties". It may be that in some cases, rather more control property stamps were printed than there were available prizes, reflecting the expectation that a substantial number of customers would not bother to participate in the game. That is not presently relevant. In respect of Mayfair and Park Lane, Park Lane was the control property in the 1999 competition. As only four cars were to be won in the Collect and Win competition, only four Park Lane stamps were printed. The number of Mayfair stamps totalled some millions. In the 1998 competition, the Mayfair property was the control property, and so millions of Park Lane stamps were printed, but only a small number of Mayfair stamps. 6 Quite early in the competition, the respondent or its agents received a number of claims which combined a stamp or stamps, printed and issued for the 1999 competition, with one stamp apparently issued, or issued in the respondent's opinion, for the 1998 competition. The respondent has consistently rejected all such claims. Again by reference to the Park Lane/Mayfair set, it is easy to demonstrate the respondent's concern. There were millions of Mayfair tickets printed for the 1999 competition and in circulation, and an unknown, but potentially large number of Park Lane tickets which had been issued in the course of the 1998 competition for which it was not a control property. The applicant is a person whose claim to a major prize has been rejected for this reason. She sues on behalf of all such claimants, with the exception of those who have chosen to opt out of the proceedings. The claimants are persons who claim to have won prizes, but whose claims have been rejected because, in each case, one of the relevant game stamps is, in the respondent's opinion, not a valid stamp in the 1999 competition. In most, if not all cases, the challenged stamp is for a relevant control property. 7 Because of the very large number of potential claimants, it is not practicable for all claims to be determined at this stage in the action. We have taken evidence from a relatively small number, I think about thirty-five, with supporting evidence from other witnesses in some cases. We have now heard all of the evidence which is to be led on behalf of each of these claimants concerning his or her acquisition of the relevant stamps. The respondent has asserted in each case that the relevant disputed stamp was not obtained from a McDonald's store in the course of the 1999 competition. Although some of the claimants are unsure as to precisely when or where they obtained their stamps, most have been able to assert particular times and places. Each is adamant that as far as he or she is aware, the relevant stamp was not obtained in the 1998 competition. There are a number of possible inferences to be drawn from the claimants' evidence. They may be either dishonest or mistaken. Alternatively, the respondent's organisation of the competition may have broken down in some way, leading to the issue of previously unissued 1998 stamps in the course of the 1999 competition. The respondent is presently addressing that issue, leading evidence said to demonstrate the unlikelihood of such a breakdown. There are numerous points at which it is suggested that this could have occurred. It is not necessary to say anything more about the facts for present purposes.