FEDERAL COURT OF AUSTRALIA Hurley v McDonald's Australia Ltd [2000] FCA 824 JANETTE LYN HURLEY v McDONALD'S AUSTRALIA LIMITED Q 194 OF 1999 DOWSETT J 2 JUNE 2000 BRISBANE 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 DATE OF ORDER: 2 JUNE 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application by the applicant to re-open the case be refused. 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 DATE: 2 JUNE 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 In the course of this trial I ruled on the admissibility of evidence sought to be led by the applicants from persons claiming to have received 1998 game stamps during the 1999 competition, such game stamps not being the basis of prize claims by those recipients. I allowed two recipients to give evidence because they claimed to have received their stamps at restaurants from which claimants in these proceedings may also have received such stamps. I will refer to all such restaurants as "relevant restaurants". That provided a sufficiently close factual nexus to extend to such evidence the possibility of probative value. I excluded evidence from two other witnesses, Austin and Nebe, who claim to have received 1998 game stamps, not the subject of prize claims in the 1999 competition, but from restaurants not otherwise relevant in these proceedings. I will refer to such restaurants as "irrelevant restaurants". 2 At the time of the ruling I disposed of the matter largely upon common law principles relating to similar fact evidence. As the trial has progressed, various issues have emerged and/or disappeared. As we are now at the end of the evidence, I thought it appropriate to again address this particular category of evidence with a view to enabling the applicant to put her argument at its highest, having regard to the case as it has unfolded and with the benefit of mature consideration. 3 Mr Couper for the applicant has told me that he puts his submission as to admissibility solely upon the general basis of s 55 of the Evidence Act 1995 (Cth), without regard to the provisions of s 98. He submits that the fact that these witnesses received 1998 stamps in the course of the 1999 competition is in some way probative of the claims by the various claimants with whom I am presently concerned, that they also received 1998 game stamps driving the 1999 competition. 4 In the course of the trial, it has become obvious that there are numerous, theoretically possible ways in which a 1998 stamp may have been in a restaurant during the 1999 competition. We have focused primarily upon two broad areas. The first of these involves the possibility of errors arising in the course of the printing, assembling and distribution of the packaging material upon which the stamps were located. I will refer to such possible errors as "distribution errors". The second area concerns the possibility that 1998 packaging stock was retained in restaurants and used in the 1999 competition. A variation on this theme is that a restaurant may have retained packaging material from the 1998 competition and transferred it to another restaurant in the course of the 1999 competition, where it was then used. I will refer to these possible errors as "restaurant errors". There are other possible explanations for 1998 stamps being distributed in 1999, including introduction by a mischievous third party, but they have not been addressed in detail. 5 That Ms Austin or Mr Nebe may have received a 1998 stamp in 1999 would, by itself, go no way towards proving that any claimant also received such a stamp in 1999. However there could be something in the circumstances in which such an incident occurred which might increase the probability of one or other of the present claims being true. As I have implied above, an example of this might be other 1998 stamps being received or seen at the restaurant at which a claimant alleges that he or she received a 1998 stamp. Another example might be evidence that a 1998 stamp had been delivered to any restaurant, relevant or irrelevant, in the course of the 1999 competition, indicating a distribution error. This would increase the probability that such an error may have occurred, leading to delivery of 1998 stamps to other restaurants and their subsequent distribution. In each case, the evidence might strengthen a claim or claims. 6 Mr Couper concedes that the receipt of 1998 stamps by Austin and Nebe cannot be attributed to restaurant error and in any event, does not prove restaurant error in any of the relevant restaurants. However he suggests that if the possibility of restaurant error is discounted, then the fact that a 1998 ticket was distributed from any restaurant (even an irrelevant restaurant) may assist in proving the possibility of distribution error, increasing the likelihood of there being 1998 stamps in relevant restaurants in 1999 as a result thereof. That may be so, but the proposition depends upon exclusion of the possibility of restaurant error, and the applicant has not sought to exclude the possibility that the alleged receipt of 1998 stamps by Austin and Nebe was so caused. Thus their evidence is equally consistent with restaurant error, distribution error or some other cause. Therefore it is not capable of assisting in proving that there was a distribution error which may have led to the issue of a 1998 ticket to a claimant. 7 The applicant has deprecated this approach, asserting correctly that she is not obliged to prove how any claimant came to receive a 1998 stamp from a relevant restaurant in 1999. However this statement concerns onus of proof and identification of relevant issues. It says nothing about admissibility of evidence. If it is accepted that the mere fact that Austin and Nebe received 1998 stamps at irrelevant restaurants does nothing to prove that any claimant received such a stamp from a relevant restaurant in 1999, then their evidence will only be admissible if the surrounding circumstances enhance its probative value. My discussion of possible situations in which the evidence might be relevant is designed to highlight the reasons for holding it to be presently irrelevant. That has nothing to do with identification of the issues which the applicant must prove in order to be successful in this action. 8 The evidence of Miss Austin and Mr Nebe is inadmissible in these proceedings because it goes no way towards demonstrating any fact in issue, whether taken in isolation or in the context of the other evidence. It does not assist in proving actual receipt of 1998 tickets by the claimants. It does not demonstrate restaurant error at a relevant restaurant which might assist in increasing the likelihood that any of the claimants may also have received a 1998 stamp at that restaurant. On the present state of the evidence, it says nothing about the possibility of error in the distribution system, proof of which error might also increase the likelihood that a claimant received a 1998 stamp at a relevant restaurant. It would only be possible to attribute to distribution error, the receipt by Austin and Nebe of 1998 stamps in 1999, if I were otherwise convinced that such error had occurred. Even then, the possibility would remain that the stamps had been distributed as the result of restaurant error. 9 There are two other categories of evidence which the applicant has also sought to lead at this stage. The first is evidence of a "call log" which is said to record telephone conversations received by McDonald's from other persons claiming to have received 1998 game stamps not associated with claims for prizes in 1999. Mr Couper puts this tender upon the same basis as that for the evidence of Ms Austin and Mr Nebe. For the same reasons it must also fail. It would, in any event, fail because there is no explanation as to why such evidence was not led at an earlier stage. 10 The applicant also seeks to tender evidence said to be contained in statements now to hand from other persons who are members of the class represented in these proceedings. In the course of this trial the respondent cross-examined various claimants upon matters which tended to discredit their evidence as to the circumstances in which they had acquired their game stamps. It became obvious that if those members of the class who are not presently claimants were to become aware of this cross-examination, it might compromise the value to the respondent of such cross-examination if it were subsequently necessary to address the claims of these other members. 11 For that reason, a mechanism was devised by which the respondent was allowed to deliver questions to these other class members, with a view to forcing them to commit themselves at this stage, hopefully without knowledge of the nature of the cross-examination. The mechanism provided for them to respond in a way which would keep confidential their responses. Neither side has had access to them at this stage. The applicant apparently perceives that there may be some benefit in ascertaining the content of the responses and leading it in these proceedings, and therefore seeks to have access to the documentation and, assuming that it is in some way favourable, to lead it in these proceedings. 12 Clearly, it is not presently known whether there is anything in the statements which would be favourable in these proceedings, although one certainly cannot discount the possibility. That, by itself, would not be a reason for refusing the applicant access to the documentation, with a view to seeing whether or not it contained anything of value. The more telling point against the application is the fact that if the applicant had wished to lead evidence from other persons who are members of the class, she had every opportunity to do so prior to closing her case. The names and addresses of these persons were known. Had the applicant wished to approach them to ascertain what evidence they could give and whether it would be relevant in these proceedings, she could have done so at a much earlier stage. I do not think it appropriate to permit her to reopen the case at this stage. 13 I am not in any sense reflecting upon the course of conduct which the applicant has taken in the trial. There must be a limit to the number of issues raised for determination in these proceedings, and at an early stage, that decision was made. I do not suggest that the decision was inappropriate, either at the time or when viewed with the benefit of hindsight. This application appears to evidence an abundance of caution rather than any doubts as to the correctness of the course adopted to date. For those reasons, I refuse the application to reopen the case. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 19 June 2000 Counsel for the Applicant: Mr Couper QC Mr D Gordon 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: 2 June 2000 Date of Judgment: 2 June 2000