Hurley v Mc Donald's Australia Ltd [2000] FCA 961

FEDERAL COURT OF AUSTRALIA

Hurley v McDonald's Australia Ltd [2000] FCA 961 Federal Court of Australia Act 1976 (Cth) R v Szabo (2000) QCA 194 Webb v The Queen (1993-1994) 181 CLR 41 Vakauta v Kelly (1989) 167 CLR 568 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 Farrow Mortgage Services Pty Ltd (In Liquidation) v Clayton Utz (a firm), (unreported; 4 September 1995) Newman v Phillips Fox (1989) 21 WAR 309 Winston Smith (1975) 61 Cr App R 128 R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 RPS v The Queen [2000] HCA 3 Kunnakatil v The Queen [1998] HCA 23 Re Ratten [1974] VR 201 Jago v District Court (NSW) (1989) 168 CLR 23 JANETTE LYN HURLEY v McDONALD'S AUSTRALIA LIMITED Q 194 OF 1999 DOWSETT J 18 JULY 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 J

DATE OF ORDER: 18 JULY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The notice of motion filed 3 July 2000 be dismissed. 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: 18 JULY 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT General 1 The respondent and its licensees operate a chain of "fast food" restaurants, selling a range of food products using uniform packaging. This is a so-called "class action" in which the applicant (on behalf of numerous other claimants) claims relief against the respondent arising out of a competition conducted during 1999. It is not necessary for present purposes that I describe the precise nature of the competition. Broadly speaking, it involved the supply to persons purchasing certain of the respondent's products of "game stamps" which might entitle a recipient to a substantial prize. The respondent had conducted a similar competition in 1998, although the game stamps issued for that competition are readily distinguishable from those which, as the respondent asserts, were valid for the purposes of the 1999 competition. The claimants, of whom there are a large number, say that stamps apparently printed for the 1998 competition were distributed by restaurants in the course of the 1999 competition and, as it is asserted, are valid stamps, the claimants' receipt of which entitles them to various prizes in the latter competition. Various legal bases are advanced to support such claims. The respondent relies upon legal arguments arising out of the conditions of the competition but in addition denies that any of the claimants received the disputed game stamps from the respondent's restaurants in the course of the 1999 competition. In referring to the "respondent's restaurants", I include those operated by licensees. 2 The trial commenced in October last year and has continued for more than fifty sitting days. The bulk of the evidence has been taken in Brisbane, but some has been taken in Sydney, Melbourne and Adelaide. A number of the disputed game stamps were obtained from restaurants in states other than Queensland. The evidence is now complete, and the final submissions commenced on 17 July 2000. 3 The applicants have not sought to advance any particular theory as to the way or ways in which 1998 stamps may have been issued in the course of the 1999 competition. They have steadfastly asserted that they should be believed when they say that they received their respective stamps during the 1999 competition unless the respondent can convince me otherwise. The respondent, on the other hand, has led substantial amounts of evidence concerning the design and printing of the game stamps in 1998 and 1999, their affixation to the wrapping material used in conjunction with relevant products and the distribution of that material to the restaurants. This evidence has been frequently described as the "distribution evidence". In addition the respondent has led a substantial amount of evidence from persons operating or employed in the various restaurants. That evidence has gone to the question of whether there was relevant 1998 stock left at the end of the 1998 competition, what happened to it and the possibility that it may have remained in a restaurant until the commencement of the 1999 competition. This body of evidence has been described as the "restaurant evidence". 4 The case has been conducted on affidavit. The vast bulk of the respondent's evidence was provided to the applicant in that form prior to commencement of the hearing. The applicant's evidence was heard in Brisbane in October of last year, as was the bulk of the respondent's distribution evidence. Although I invited both parties to consider whether the convenience of witnesses and questions of cost should lead to my taking evidence in centres other than Brisbane, only the respondent took advantage of this offer. As a result a substantial amount of restaurant evidence was taken in Sydney, Melbourne and Adelaide. In addition some distribution evidence was taken in Adelaide. The sittings in Sydney took place in the weeks commencing 21 February and 13 March this year. The Melbourne evidence was taken in the week commencing 28 February, and the Adelaide evidence in the week commencing 6 March. The balance of the restaurant evidence and some small amount of distribution evidence was taken in Brisbane in March, May and June. The matter was then adjourned to the week commencing 17 July for argument.