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Federal Court of Australia |
Last Updated: 13 March 2001
JANETTE LYN HURLEY
v
McDONALD'S AUSTRALIA LIMITED
Q 194 of 1999
In accordance with the practice of the Federal Court in certain cases of public interest, a brief summary has been prepared to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasized that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions that have been reached by the Court; it is not intended to take the place of the official reasons for judgment.
Dowsett J
9 March 2001
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 2001 |
PLACE: |
BRISBANE |
1 In both 1998 and 1999 McDonald's conducted competitions entitled "McMatch & Win Monopoly". Customers were offered the opportunity to win prizes by collecting stamps which were attached to McDonald's packaging. During the 1999 competition, McDonald's rejected many claims for prizes which relied upon stamps printed for the 1998 competition, saying that these stamps had not been collected from any of it's restaurants during the 1999 competition. In these proceedings thirty-four people tried to prove that they had so obtained their stamps.
2 Companies which manufactured the packaging for McDonald's also attached the stamps to it. Sometimes, packaging came without stamps or restaurants ran out of packaging. In those circumstances restaurant staff could supply customers with stamps from rolls of spare stamps. McDonald's proved that it was unlikely that packaging manufacturers had attached 1998 stamps to 1999 packaging. Therefore customers could have received 1998 stamps from McDonald's restaurants only if:
* restaurants had kept cartons of 1998 packaging and supplied it to customers in 1999; or
* restaurants had kept rolls of spare stamps from 1998 and supplied them in 1999.
3 For reasons associated with the shapes of the stamps, only about half of the claimants could possibly have received their stamps from spare rolls.
4 The 1998 packaging was distinctly different in colour from the 1999 packaging. The Court considered that had a carton of it been supplied from a restaurant during the 1999 competition, the restaurant staff would almost certainly have noticed it. Staff members from all of the relevant restaurants gave evidence that there was no 1998 packaging in the restaurants during the 1999 competition. Further, most of the claimants said that they had received 1999 packaging, not 1998 packaging. Staff from the restaurants also said that the spare rolls of stamps from 1998 had been discarded or not seen since the 1998 competition.
5 The claimants had to persuade the Court that it was more probable than not that they had received their stamps from McDonald's restaurants during the 1999 competition. The Court considered the evidence from the claimants and the evidence from McDonald's, particularly the evidence from the restaurant staff, and was not satisfied of any of the claims. In some cases this was because of the McDonald's evidence. In other cases it was because there were unsatisfactory aspects to the claimants' evidence.
The full text of this judgment can be found at: http://www.fedcourt.gov.au
Hurley v McDonald's Australia Limited [2001] FCA 209
JANETTE LYN HURLEY v McDONALD'S AUSTRALIA LIMITED
Q 194 OF 1999
DOWSETT J
9 MARCH 2001
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: |
9 MARCH 2001 |
WHERE MADE: |
BRISBANE |
THE ACTION AND ITS BACKGROUND 1
The Respondent 1
The Promotion 2
Collect & Win 3
Instant Win and Second Chance Draw 4
The Prize Pool 4
Control Properties 4
Important Dates in 1999 Competition 4
Promotional booklet (1999) 5
POP Kits (1999) 5
Important dates in 1998 competition 5
IMPORTANT FEATURES OF THE 1998 AND 1999 COMPETITIONS
AND RELEVANT DIFFERENCES 6
Control of the 1999 competition 10
The Problem 11
Media Publicity 11
The Action 12
SOME GENERAL COMMENTS CONCERNING THE EVIDENCE 14
Approach to the evidence 16
Theories 16
PRINTING EVIDENCE 19
MANUFACTURING EVIDENCE - CUPS 22
Applicant's theories relating to Polarcup 22
Polarcup evidence 22
Presence of 1998 Labels or Packaging at Polarcup in 1999 23
Application of Labels in 1999 24
The manufacturing process 25
Evidence from Polarcup quality assurance employees 26
Arthur Andersen Audit 27
Cross-examination 28
MANUFACTURING EVIDENCE - HASH BROWN BAGS 30
Applicant's theories relating to Detmold 30
Presence of 1998 labels or packaging at Detmold in 1999 31
Presence of 1998 promotional packaging in Detmold premises
after conclusion of 1998 production run 36
Application of 1998 labels in 1999 37
Seeding of major prizes 42
Arthur Andersen audit 42
MANUFACTURING EVIDENCE - FRY BOXES; PIE BOXES 42
Applicant's theories relating to Anzpac 43
Respondent's evidence 43
Presence of 1998 labels or packaging at Anzpac in 1999 44
Application of 1998 labels to 1999 promotional packaging in 1999 47
Quality assurance 49
Seeding of major prizes 51
Arthur Andersen audit 51
Sub-Contractors 51
CRITICISM OF PRINTING AND MANUFACTURING EVIDENCE 52
DISTRIBUTION EVIDENCE - WALKERS 54
Applicant's theories 54
Respondent's Affidavit Evidence 55
The Walkers operation 56
Security Protocol 56
Run-out of 1998 packaging 57
Leftover promotional packaging 58
Destruction of packaging 59
Receipt of promotional packaging 59
Storage 59
Orders 60
Picking 60
Restaurant deliveries 61
Cycle Count 61
Distribution Centre Evidence 61
Evidence concerning the 1999 promotion 67
APPLICANT'S CRITICISM OF DISTRIBUTION EVIDENCE 67
STATISTICAL EVIDENCE 68
CONDITION OF DISPUTED GAME STAMPS 70
RESTAURANT EVIDENCE 70
ANNErLEY - Leishman, Taylor 76
ASPLEY - Faulks, Hayward, Leishman 79
AUSTRALIA FAIR - Campbell, Leishman 81
BEAUDESERT - Leishman 83
BEENLEIGH - Leishman 85
BORONIA - Cain 87
BRIBIE INTERCHANGE - Brennan 88
BROWNS PLAINS - Stevens 92
BURLEIGH HEADS AND BURLEIGH WATERS - Leishman 94
CABOOLTURE - Jones 96
CALOUNDRA - Leishman 98
CANNING VALE - Maynard 100
CLIFTON HILL - Miller 101
CONDER RESTAURANT - McGahey 102
CRANBOURNE - Laughlin 103
DAPTO - Robinson 105
DECEPTION BAY- Hooper, Nolan 106
DONCASTER EAST - Miller 108
DOVETON - Dowling 110
DURAL - Irwin 112
EAST VICTORIA PARK - Maynard 113
ELSTERNWICK EAST - Miller 114
EMU PLAINS - Buchtmann 116
ERINDALE - McGahey 118
FAIRY MEADOW - Robinson 119
FORSTER - Purtle 120
GATTON - Leishman 121
GLEN WAVERLEY - Dowling 122
GUNDAGAI - Carr 123
HELENSVALE - Leishman 125
HOYTS REGENT - Cole 126
INDOOROOPILLY - McInnes 127
KALLANGUR - Hayward 129
KIPPA-RING - Clarke 130
LABRADOR - Leishman, Campbell 131
LAKEMBA (SOMETIMES CALLED BELFIELD) - Irwin 132
LOGANHOLME - Troutman 133
LOGANLEA - Hodges 135
M4 MOTORWAY - Irwin 136
MACKAY (ALSO KNOWN AS CITY EXPRESS) - Silk 139
MADDINGTON - Maynard 140
MARSDEN - Doong, Harris 141
MELVILLE - Maynard 144
MINCHINBURY - Irwin 145
MT GRAVATT - Leishman,Whittaker 148
NEWMARKET (INCORRECTLY DESCRIBED BY MR LEISHMAN
AS ALDERLEY) - Leishman, Whittaker 150
O'CONNOR - Maynard 152
OXLEY - Crosse 154
PENRITH HIGH STREET - Buchtmann 156
PENRITH LEAGUES CLUB - Buchtmann 158
PRAHRAN - Dowling 159
REDCLIFFE - Clarke 160
ROCKINGHAM - Maynard 161
SPRINGWOOD - Denniss, Taylor 162
ST KILDA - Dowling 165
ST PETERS - Irwin 166
THE GAP - Cox, Leishman 167
TOOWOOMBA SOUTH - Leishman 169
TRARALGON - Miller 171
TUGGERANONG - McGahey 173
VIRGINIA - Hayward 174
WARRAGUL - Fusinato 176
WARNBRO - Maynard 178
WOLLONGONG - Robinson 179
WOODBRIDGE - Maynard 180
OTHER RESTAURANTS 181
Airlie Beach Restaurant 181
Albion 182
Rocklea 182
Roma Street 183
Runaway Bay 185
Yamanto 185
FURTHER COMMENTS CONCERNING EVIDENCE FROM RESTAURANTS 186
Stocktaking and stock storage areas 186
Exhaustion of 1998 packaging 187
Rolls of spare 1998 labels 187
SUMMARY 188
FACTORS WHICH MAY ASSIST IN ASSESSING CLAIMANTS' EVIDENCE 188
Single and double stamps 189
Colour of stamp backing 189
Barely possible events 189
Less unlikely provenance of 1998 stamps allegedly received
during 1999 competition 190
"Similar fact" evidence 193
Similar fact evidence - the respondent's case 196
Credibility and reliability 197
CLAIMANTS' EVIDENCE 198
MAUREEN ANN BRENNAN 198
JOHN WILLIAM BUCHTMANN 202
LINDA CAIN 204
MARY AND WILLIAM CAMPBELL 206
KATIE JANE CARR 208
DONNA MAREE CLARKE 209
JUDITH MARIE COLE 211
JENNIFER ANNE COX 215
ANN-MARIE CROSSE 217
CAMERON JOHN DENNISS 219
BRONWYN DOONG 223
SOPHIE DOWLING 226
GEOFFREY OWEN FAULKS 228
PETER JAMES FUSINATO 230
SCOTT KENNETH HARRIS 232
MICHELLE MAREE HAYWARD 235
TRACEY ANN HODGES 238
TRACEY ELIZABETH HOOPER 243
DARREN ALAN KEVIN IRWIN 246
DANIEL MARK JONES 251
VALERIE ESTHER LAUGHLIN 253
NORMAN WAYNE LEISHMAN 255
IAN ROBERT MAYNARD 262
PETER ANTHONY McGAHEY 266
PAMELA ELIZABETH McINNES 268
JAMES JOHN MILLER 271
NICHOLAS PATRICK NOLAN 273
INGRID MARIJKE CARLA PURTLE 275
JOANNE ROBYN ROBINSON 277
JAMIE ALEXANDER SILK 280
GARY ARTHUR STEVENS 282
RODNEY GEORGE TAYLOR 283
KIRSTIE SHEREE TROUTMAN 285
JOSEPH TERENCE WAYNE WHITTAKER 287
ORDERS 289
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
BETWEEN: |
JANETTE LYN HURLEY APPLICANT |
AND: |
McDONALD'S AUSTRALIA LIMITED RESPONDENT |
JUDGE: |
DOWSETT J |
DATE: |
9 MARCH 2001 |
PLACE: |
BRISBANE |
THE ACTION AND ITS BACKGROUND
The Respondent
6 The respondent is well-known as a supplier of "fast food". Throughout Australia there are approximately 600 McDonald's restaurants. About 200 of these restaurants are operated by the respondent; the others are operated by licensees pursuant to licence agreements with the respondent. All restaurants offer food products marketed under the McDonald's brand name. There are variations in the ranges of products offered at different restaurants. The restaurants are not all uniform in design or operation, but Mr Farmilo's affidavit demonstrates that they fall into a number of broad categories. It is necessary for present purposes to say only that most restaurants provide dining room facilities in conjunction with counter service and drive-through facilities for take-away food. However at least one restaurant has no dining room, and some restaurants do not have drive-through facilities. Most restaurants have limited storage space. The respondent has developed a substantial body of procedures for use in all restaurants, including computer programmes for stock control and accounting purposes. There is a distinctive McDonald's livery for restaurant buildings and packaging The respondent regularly undertakes national promotional programmes in conjunction with its licensees. The current proceedings arise out of one such promotion.
The Promotion
7 In both 1998 and 1999 the respondent conducted promotional competitions entitled "McMatch & Win Monopoly". The competitions borrowed the get-up associated with the well-known parlour game "Monopoly". During the course of each competition the respondent supplied to persons buying particular fast-food products, small "game stamps". The game stamps were incorporated within labels which were affixed to the packaging of the relevant products. The labels were red in 1998 and yellow in 1999. The surface of each label was perforated so that either one or two rectangular portions of it could be "peeled off", these portions being the game stamps. The terms "label", "game stamp" and "stamp" are generally used throughout this judgment accordingly. However such usage was not uniformly adopted throughout the trial. The words "competition", "promotion", "game" and "Monopoly" were also used interchangeably. I fear that, from time to time, I may not be as consistent in my use of these various terms as I would normally try to be. Unfortunately, the length of the judgment and the variations in terminology adopted by witnesses make this goal difficult to attain. I do not believe that there is risk of serious misunderstanding as a result of any looseness in terminology. It may also assist if I record that at some stage, the 1998 promotion was code-named "Puzzle", whilst the 1999 promotion was code-named "Killer".
8 One particular aspect of this problem should be mentioned. In discussing the restaurant evidence, I have consistently referred to "rolls of spare labels". The purpose and nature of these rolls are discussed below. In discussing the restaurant evidence, I have also frequently referred to evidence from staff that, following the 1998 competition, they removed game stamps from the packaging so that it could be used. It is likely that many of those witnesses meant that they had removed the labels. However I have retained the expression "game stamps" because I was not confident that in all cases, that was their meaning. This usage may be capable of causing confusion. For that reason I thought it desirable to draw attention to it.
9 As I have said, some labels bore one stamp (described hereafter as a "single stamp"), whilst others bore two stamps (each of which stamps is hereafter described as a "double stamp"). Out of an abundance of caution I should say that any reference to a "double stamp" is to one stamp which was previously attached to another, and not to two stamps so joined. I will refer to "single labels" or "double labels", where appropriate, to describe them as bearing one or two stamps respectively. The two double stamps on a label were, before "peeling", attached at adjoining vertical edges so that one was a "left" and one, a "right". Perforation facilitated separation. This arrangement led to a design difference between single and double stamps which makes them easy to identify as one or the other. Both bottom corners of a single stamp are slightly rounded while one of the bottom corners of a double stamp (on the side which was joined to its "twin") is cut squarely. When the game stamps were peeled from the label after purchase, their faces were revealed. There were three ways in which participants could win prizes using these game stamps. In competition parlance they were described as "Collect & Win", "Instant Win" and "Second Chance Draw". The face of each game stamp demonstrated its significance for the purposes of the competition.
Collect & Win
10 This component of the competition has given rise to the present dispute. The faces of most of the game stamps were designed to resemble the various "property" cards used in the game of Monopoly. Each game stamp bore the name of a well-known site in Greater London such as Pall Mall, Mayfair, Trafalgar Square or King's 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 "property set", as did four London railway stations. At the top of each game stamp pertaining to a site (other than the railway stations) there was a coloured bar. Each stamp in a particular set bore a bar of the same colour, and each property set was coloured differently. For example Park Lane and Mayfair game stamps bore dark blue bars, whilst the Regent Street, Oxford Street and Bond Street game stamps bore green bars. This get-up resembled that used in the "Monopoly" parlour game. Any player who obtained all of the game stamps in a particular property set would, subject to verification of the claim, win the prize appropriate to that set. For example a player holding both Park Lane and Mayfair stamps would win a motor car.
11 To participate in the competition a player required a tray mat. They were available at restaurants on request and were routinely supplied on trays with meals. The mats were designed to represent a Monopoly game board. The tray mat provided spaces to which game stamps could be affixed so that they were arranged in their relevant sets. Each set, as laid out on the mat, was, in effect, a coupon for use in claiming the relevant prize. The back of the mat was designed so that when a completed set was cut out of the mat, the back of the excised portion contained a space in which the prospective claimant could enter his or her name, address and telephone number. The tray mat also bore instructions as to how to play the game and referred to notices erected in each restaurant which set out the conditions governing the competition.
Instant Win and Second Chance Draw
12 Game stamps which did not relate to London sites, and were therefore not parts of sets, might be "Instant Win" major prize stamps, "Instant Win" $200 cash prize stamps, "Instant Win" food prize stamps or "Second Chance Draw" prize stamps. An "Instant Win" stamp immediately entitled the player, subject to verification, to the prize identified on the game stamp. Both non-food prizes (ie major prizes and $200 cash prizes) and food prizes could be won in this way. Game stamps described as "Second Chance Draw" entitled the participant to enter a draw for non-food prizes remaining unclaimed at the conclusion of the competition. Such prizes would be unclaimed because relevant property stamps had not been distributed for some reason or because customers who had received them had not participated in the competition. The tray mat also provided details relating to these other aspects of the competition.
The Prize Pool
13 In both 1998 and 1999 there were nine property sets and hence nine categories of major prizes. The "Collect and Win" prize pool comprised the majority of the prizes available in each major prize category.
Control Properties
14 Given that the number of prizes capable of being won in the "Collect and Win" component was fixed, it was necessary that the opportunities to win those prizes be limited. This was done by means of "control stamps". For each property set, one stamp was selected as the control stamp. Relatively few of the control stamps were issued. Thus many players might accumulate all but the control stamp for a particular set, but few players would receive control stamps. Significantly for present purposes, the control stamps for some property sets differed in 1999 from those used in 1998.
Important Dates in 1999 Competition
15 The 1999 competition commenced on Friday 4 June 1999 and concluded on Sunday 1 August 1999. A fourteen day packaging run-out period commenced on 2 August 1999 and concluded on Sunday 15 August 1999. During the run-out period restaurants were permitted to use any promotional packaging remaining in the restaurant. All prizes (including food prizes) had to be claimed by 15 August. At the trial there was some inconsistency in use of the terms "end of the competition", "end of the run-out period" and similar expressions. However that is of no particular significance.
Promotional booklet (1999)
16 Prior to the scheduled commencement of the 1999 competition, promotional booklets were sent to all restaurants. The booklet was designed to explain the promotion to those involved in the management and operation of restaurants. In particular, it listed the products with which game stamps were to be supplied, the importance of securing packaging, the procedures for distributing tray mats, and the prize redemption procedures. Relevant accounting and operational procedures were also prescribed. There was a suggested agenda for crew meetings at which the relevant in-store procedures could be explained to staff.
POP Kits (1999)
17 At about the same time as the restaurants received the promotional booklets, they also received Point Of Purchase ("POP") kits. These kits contained display material, including a poster detailing the terms and conditions of the competition. The kit also contained a number of "crew posters" which summarised the promotion and outlined the duties of the crew (ie restaurant employees). Although the evidence is a little unclear, it seems that each POP kit also contained at least one roll of spare labels, which were single labels.
Important dates in 1998 competition
18 As I have mentioned, the 1998 and 1999 competitions were very similar in concept although they differed in a number of important practical respects. The 1998 competition commenced on Friday 3 July 1998 and concluded on Sunday 16 August 1998. The "run-out" period commenced on 17 August 1998 and concluded on Monday 31 August 1998. Prior to the commencement of the 1998 competition, restaurants were issued with a promotional booklet similar to that distributed in 1999. Restaurants also received POP kits similar to those issued in 1999. It is not necessary to explain these aspects of the 1998 competition in any further detail.
IMPORTANT FEATURES OF THE 1998 AND 1999 COMPETITIONS AND RELEVANT DIFFERENCES
Game stamps
19 As I have explained, in both competitions customers received either single or double game stamps when purchasing nominated products. The table below identifies the type of label (single or double) affixed to each relevant promotional package in the 1999 and 1998 competitions.
20 A customer who purchased a large box of fries, a large soft drink and a hash brown would receive three labels (two double and one single), bearing five game stamps. The product described above as "large orange juice" was supplied in medium cups, and so a purchaser would receive a single label. I am not sure whether there was any difference between a large drink cup and a large shake cup or between a medium drink cup and a regular shake cup. The case generally proceeded upon the basis that there was no relevant difference with one possible exception. Following the 1998 Monopoly promotion, there was another promotion described as the "AFL/Coke" promotion. This promotion had special large cups for Coca Cola, and so large Monopoly promotional cups could not be used for serving that product. If any such cups remained in the restaurant, they could be used for shakes. (See exhibit 245.) The cherry pie item was a special promotion item not usually available in the restaurants. (See exhibit 173, p 3.)
21 The labels as they appeared on the packaging were yellow in 1999 and red in 1998. In some of the evidence, this coloured surface is described as the "front" of the label. When the game stamps were peeled off, each took with it a part of that coloured surface. Thus each game stamp had one yellow side in 1999 and one red side in 1998. Although it is a little misleading, this coloured side is hereafter described as the "back" of the game stamp. On the other side (the "front" of the game stamp), were relevant competition details as described above. The coloured backing was easily removed.
Packaging Colours and Design
22 In both 1998 and 1999, promotional food and drink items were supplied in packaging specifically designed and produced for use in connection with the competition. This packaging was different from the "generic" or "non-promotional" packaging normally used for such items. The promotional packaging used in 1999 differed from that used in 1998. Exhibit 10 contains the full range of relevant packaging for the 1999 competition. Exhibit 18 contains the full range of 1998 packaging save for the large cup which was a larger version of the medium cup.
23 In 1999 the large and medium fry boxes and the large and medium cups had a dark purple background over which was imposed a collage of Monopoly game board squares, McDonald's logos, McMatch & Win logos, prize descriptions and other writing. In 1998, the packaging for these products had a blue background with a clearly different, although not dis-similar collage design. The overall effect of these colour and design differences was that the large and medium cups and large and medium fry boxes used in 1999 were noticeably different from those used in 1998.
24 Promotional hash brown bags were white with a coloured design. The design in 1999 was different from that used in 1998.
25 In the 1999 competition, game stamps were also distributed with apple pie boxes and cherry pie boxes. These products had not been part of the 1998 promotion.
Colour and design of game stamps
26 The fronts of the property game stamps also differed between 1998 and 1999. Some of the differences are visible; some are not. Three differences are apparent. The first is that each property game stamp printed for the 1999 competition bore on its face a yellow "M" logo super-imposed over the printing on the stamp. This was also referred to as "yellow arches" or "golden arches". Game stamps printed for the 1998 competition had no such "M". The second difference is the code printed on the face of each stamp. In both 1998 and 1999 each game stamp bore at its foot a numerical code preceded by the letter "M". For example in 1999, the Piccadilly game stamp bore the code "M1", Leicester Square bore the code "M3" and Coventry Street (the third stamp in the set) bore the code "M14". In 1998, the codes were different. The details are not important. The third apparent difference is the wording of the short instruction at the foot of the face of each game stamp. In 1999, the instruction read "See tray mat for details". In 1998 the instruction read "See your tray mat for details" (emphasis added). Thus it can be seen that whether a stamp retained its coloured backing or not, it was, and is readily identifiable as having been designed for use in either 1998 or 1999. The control stamps had other security marks on them which are not visible to the naked eye. It is not necessary to discuss them.
Different control stamps
27 As I have said, the 1999 competition had different control stamps for some, but not all of the sets, presumably for security reasons. The control stamps for the 1998 and 1999 competitions were as listed below.
CONTROL PROPERTIES IN THE 1998 AND 1999 COMPETITIONS | ||
Property Set Colour |
1998 Control Piece |
1999 Control Piece |
Purple |
Old Kent Road * |
Old Kent Road * |
Light Blue |
Euston Road |
The Angel Islington |
Pink |
Whitehall |
Northumberland Avenue |
Orange |
Bow Street |
Marlborough Street |
Red |
Fleet Street |
Trafalgar Square |
Yellow |
Piccadilly |
Coventry Street |
Green |
Bond Street * |
Bond Street * |
Dark Blue |
Mayfair |
Park Lane |
Magenta |
Marylebone Station |
King's Cross |
* unchanged.
28 These changes are at the root of the present problem. Many people have presented claims in the 1999 competition, relying on stamps which appear to be 1998 stamps. All of the disputed stamps were non-control stamps in the 1998 competition. Such stamps were printed and circulated in very large numbers. The stamps printed for the same properties for the purposes of the 1999 competition, being control stamps, were printed in very small numbers so as to limit the number of potential prize winners. If 1998 stamps for the same properties are to be treated as valid in 1999, there may be, in theory at least, a very large number of potential winners, far in excess of the advertised number of prizes. Such prizes have, as far as I know, been awarded in accordance with the rules of the competition to customers presenting appropriate 1999 stamps.
Rolls of spare game stamps
29 During the 1999 competition, each restaurant was supposed to receive at least one roll of 1,000 single yellow labels (ie, each bearing one game stamp). The 1999 promotional booklet stated that these labels "should be used in the case of faults on promotional packaging" and in particular where employees encountered "packaging with damaged or missing game stamps". The roll was to be stored in a lockable cupboard in the manager's office or in the safe. In practice, the restaurants also issued these labels with generic packaging when promotional stock was exhausted and in other local promotions such as children's parties. In the 1998 competition each restaurant had received at least one roll of 500 single red labels for similar purposes. These labels were indistinguishable from single labels attached to promotional packaging.
World Wide Raw Item Numbers (WRIN Codes)
30 Much of the material used in a McDonald's restaurant is supplied by Australian Meat Holdings Pty Limited through a division of that company called F J Walker Foods ("Walkers"). Deliveries of packaging (and other items) are made on a weekly, twice-weekly or thrice-weekly basis, depending upon the location of the restaurant in question. Materials delivered to a restaurant by Walkers are identified by an identification number described as a "World Wide Raw Item Number" ("WRIN code"). These are seven-digit numerical codes. As the table below demonstrates, in 1998 the WRIN codes for items of Monopoly promotional packaging differed from those for their generic equivalents. In 1999 this was also the case, save that for cherry pie boxes, the generic WRIN code and the Monopoly WRIN code were identical. This may be because cherry pies were only supplied as promotional items. The table also demonstrates that the WRIN codes for promotional large cups, medium cups, large fries and medium fries were the same in 1998 and 1999. The WRIN code for promotional hash brown bags was different in each year.
WRIN NUMBERS FOR PROMOTIONAL AND GENERIC PACKAGING ITEMS IN 1998 AND 1999 | ||||
Product |
Generic WRIN |
Monopoly WRIN | ||
|
|
1998 |
1999 |
1998 |
1999 |
Hash Brown Bags |
5429-034 |
5429-034 |
5429-043 |
5429-020 |
Large Cups |
0157-540 |
0157-540 |
0157-633 |
0157-633 |
Medium Cups |
0156-345 |
0156-345 |
0156-438 |
0156-438 |
Large Fry Boxes |
3761-095 |
3761-095 |
1139-354 |
1139-354 |
Medium Fry Boxes |
0163-132 |
0163-132 |
0163-210 |
0163-210 |
Apple Pie Boxes |
N/A |
0166-082 |
N/A |
0166-014 |
Cherry Pie Boxes |
N/A |
0097-039 |
N/A |
0097-039 |
31 Evidence concerning WRIN codes took up some time in the course of the trial, partly because of the apparent potential for confusion where the same number was used for different stock items and partly because many restaurant operators seem not to have paid great attention to the WRIN codes in their stock records. The applicant sought to rely upon these matters as demonstrating unreliability in the respondent's evidence that there was no 1998 promotional packaging in the restaurants during the 1999 promotion.
Control of the 1999 competition
32 The sales promotion agency Creata Promotion (Aust) Pty Limited ("Creata") designed and administered both promotions on behalf of the respondent. Russell Vine was the principal employee concerned. He has sworn an affidavit deposing to the development of the competition and the administration of it. In particular, Creata designed the artwork for the 1999 promotion, including the Monopoly artwork, received the redemption envelopes with the relevant coupons and stamps and determined, at least at first instance, the validity or otherwise of the claims. Mr Vine's affidavit demonstrates a very complex system for opening, recording and validating the various claims. Although a few claimants alleged that game stamps had been tampered with after posting, it is quite clear from this evidence that such allegations must be groundless. It is of some interest to note that according to Mr Vine, the volume of entries being received by Creata increased substantially from on or about 23 June 1999. (See his affidavit at sub-par 55(aa).) Kylie Wallbridge was the employee of the respondent primarily responsible for the day-to-day conduct of the competition, largely acting in liaison with Mr Vine at Creata.
The Problem
33 Ms Wallbridge became aware, on or about 15 or 16 June 1999, that 1998 stamps were being presented to support claims for prizes. Exhibits 342, 343 and 344 relate to this problem. On or about 20 or 21 June she attended a meeting at which the problem was discussed and as a result, sent an e-mail to all restaurants alerting them to the problem. This is exhibit KW4 to her affidavit. As I have said, Mr Vine was of the view that from about 23 June the volume of claims increased substantially.
34 It is quite easy to determine whether or not a stamp was designed for the 1998 competition or for the 1999 competition. Throughout these reasons I identify stamps as "1998 stamps" or "1999 stamps" accordingly. For obvious reasons, I also assume that a 1998 stamp came from a 1998 label and a 1999 stamp, from a 1999 label. The applicant asserted, very faintly, that stamps appearing to be 1998 stamps may have been mistakenly printed for the 1999 competition. However the evidence precludes any such possibility. I will deal with that evidence at a later stage. Thus if a stamp had, when received, red, rather than yellow backing or does not bear the "M" on the front, I infer for all material purposes that it is a 1998 stamp rather than a 1999 stamp. By this I mean that it was printed for the 1998 competition rather than for the 1999 competition. If a stamp had yellow backing or bears an "M", then I infer that it is a 1999 stamp. Labels are similarly treated. Some claimants said that they had received stamps without "M"s on their faces, but with yellow backing. The printing evidence demonstrates that such an occurrence is virtually impossible. It was also suggested by some people that stamps bearing yellow "M"s on their faces came with red backing. That is also virtually impossible. The bases for these inferences will appear later when I consider the printing evidence. All of the disputed stamps lack the "M" on their faces. I therefore infer that they were printed for the 1998 competition. The substantial issue for determination is whether they were distributed by the respondent or its licensees during the 1999 competition.
Media Publicity
35 The promotion started on 4 June and ended on 1 August, with a run-out period, both for the use of packaging and to claim prizes, lasting until 15 August. The respondent was aware of possible irregularities by about 15 or 16 June. On 22 June the matter was raised twice on talk-back radio in Melbourne, again on 28 June and on numerous occasions on 29 June. On 30 June the matter was reported on Channel 9's national programme "A Current Affair" and again on Melbourne radio. On 1 July there was radio and television coverage in all mainland states. Thereafter, the matter was consistently in the news until at least mid-July. On or about 1 July the respondent appointed a retired Judge of this Court, the Hon T R Morling, to investigate the matter. These proceedings were commenced in the Queensland registry on 2 July. It is clear that this was always intended to be what is known as a "class" action. The commencement of the class action and the name of the firm of solicitors acting for the applicant were reported on Brisbane's Channel 7 on the night of 2 July. There was also extensive coverage of the issue in the print media from 1 July until mid-August.
36 In early July the Australian Competition and Consumer Commission ("ACCC") became interested in the matter, and numerous public comments were made by representatives of that body, in particular its chairman. Some of those comments suggested that ACCC had concluded that the respondent was at fault in not honouring claims. On or about 9 July Mr Morling reported to the respondent, apparently finding that it had been justified in rejecting the various disputed claims, or at least that was the thrust of the media reports. The intervention by ACCC was reported in numerous newspaper articles, mainly in mid-July. There was also media coverage of proceedings commenced in Victoria which were subsequently consolidated with these proceedings.
37 Some of the present claims were made with knowledge of the dispute, which knowledge was derived from this media coverage. I mention that at this stage because one of the arguments advanced by the applicant in support of the claims is, in effect, that there are so many claimants who say that they received 1998 stamps during the 1999 competition that it cannot reasonably be thought that they are mistaken and/or lying; that, to adopt the well-known aphorism, "Fifty million Frenchmen can't be wrong." In assessing this proposition it will be necessary to keep in mind this wide media coverage. Any person having access to 1998 stamps from whatever source might well have been encouraged to make a claim if he or she knew that other people were apparently doing so with the support of the media, ACCC and solicitors.
The Action
38 The applicant, on behalf of herself and others, asserts their entitlement to various substantial prizes as a result of participation in the 1999 competition. All persons making such claims are hereafter described as "claimants". Each claims that, in the course of the 1999 competition, he or she received a winning combination of game stamps and that the respondent has wrongfully rejected his or her claim. The respondent asserts that each rejected claim relies upon one game stamp printed for the 1998 competition and denies that these game stamps were issued by any of its restaurants in the course of the 1999 competition. It contends, by reference to the rules of the 1999 competition, that it was entitled to reject prize claims which utilised game stamps not printed for and/or issued during, the 1999 competition. The principal factual dispute concerns the circumstances in which each claimant came into possession of the relevant 1998 stamp. The respondent does not seek to distinguish between itself and its licensees for the purposes of determining its liability for these claims. However it did not accept any obligation to ensure discovery of documents in the possession of licensees. Nonetheless, it sought to co-operate as far as possible in facilitating access to such documents by the applicant.
39 These proceedings are brought pursuant to ss 33C and 33D of the Federal Court of Australia Act 1976 (Cth). In her amended statement of claim, the applicant asserts that she:
... is and was a member of a group of persons to whom these proceedings relate, being:A group of identified and unidentified purchasers, Australia-wide, of McDonald's food products who participated in the Monopoly McMatch and Win competition, promoted and conducted by the respondent in 1999 (the "Competition"), and who ... claim to have won a prize in the Competition, but whose entry has been treated as invalid by the respondent on the ground that the entry utilised game stamps which had not been issued in connection with the Competition.
40 Many people prima facie fall within the group or class so identified. Some have opted out of these proceedings. Nevertheless, the "group of persons" still numbers, I am told, in the thousands. Only thirty-four claimants have presented their cases in full. In answer to these claims, the respondent has advanced its defence. Following the determination of these claims, the remaining claimants will decide whether to continue the prosecution of their claims. There are difficulties inherent in this process, but they may be left for consideration at a later stage. Proceeding on this basis, I have taken fifty-one days of evidence in relation to the thirty-four claimants. They include claimants from Queensland, New South Wales, the Australian Capital Territory, Victoria and Western Australia. Some have made multiple prize claims. Some have been unable to identify the restaurants at which they acquired the relevant stamps or say when they did so. In the table below I list each presently relevant claimant, his or her state or territory of residence and the number of prize claims each has made. Ms Hurley, the applicant, has not pressed her own claim in this phase of the proceedings.
SOME GENERAL COMMENTS CONCERNING THE EVIDENCE
41 The more significant evidence in this case falls into a number of categories. The first category includes evidence from the claimants and supporting witnesses. In broad terms, this evidence addresses the circumstances in which each obtained his/her "winning" 1998 game stamp or stamps, allegedly during the 1999 competition. The second category of evidence concerns the printing of game labels for the purposes of both competitions. Using Creata's art work, a company called Pemara Corporation Pty Ltd ("Pemara") printed the labels and forwarded them to three other companies which manufactured the relevant packaging. They were:
for cups: Polarcup (Australia) Limited ("Polarcup");
for fry boxes and pie boxes: Anzpac Services (Australia) Pty Limited ("Anzpac"); and
for hash brown bags: Detmold Packaging Pty Limited ("Detmold").
42 These three companies manufactured the packaging, affixed the relevant promotional labels to it and forwarded the completed products to various Walkers depots around the country. The third category of evidence came from employees of these companies. Walkers distributed the packaging to restaurants. The fourth category of evidence came from Walkers employees and concerns the distribution process. All of this evidence was led to demonstrate that 1998 labels were not printed or distributed to restaurants during the 1999 competition. The fifth category of evidence concerns the receipt, storage and use of packaging and other material in the restaurants during both promotions. By this evidence the respondent seeks to establish that no relevant restaurant:
* retained, at the conclusion of the 1998 competition, (knowingly or unknowingly) 1998 promotional packaging or labels;
* stored (knowingly or unknowingly) 1998 promotional packaging or labels in the period between the conclusion of the 1998 competition and the commencement of the 1999 competition;
* received, during the 1999 competition, any 1998 promotional packaging or labels from any source; or
* distributed, during the course of the 1999 competition, any 1998 promotional packaging or labels.
43 This evidence will be compendiously described as the "restaurant evidence". Because numerous restaurant witnesses gave evidence to similar effect, it was agreed that it would not be necessary for the applicant to cross-examine all such witnesses merely for the purpose of offering them opportunities to comment on the applicant's case. Exhibit 368 lists such witnesses and the extent to which their evidence is disputed despite the fact that they were not cross-examined.
44 In addition to the evidence outlined above, there is also statistical evidence, evidence concerning the opening of the redemption envelopes, evidence from a document examiner and evidence of media coverage to which I have previously referred. I will refer to this evidence incidentally where it appears to be relevant.
Approach to the evidence
45 Each claim must be decided on its particular facts, but in light of all of the evidence relevant to that claim. The applicant has submitted that the evidence of each claimant should be seen as supported by the evidence of every other claimant and even by the fact that there are other claims which are not presently under consideration. The theory seems to be that this is "similar fact" evidence. I will deal with this submission at a later stage. It is convenient that I consider the evidence in the following order:
* printing, manufacturing and distribution evidence;
* restaurant evidence; and
Theories
46 Before considering the evidence it is appropriate to say something about the broad lines followed by the parties in the conduct of the case. This may assist in understanding much of the evidence. The applicant generally argued that she was not obliged to demonstrate anything more than that each claimant obtained his or her disputed stamp in the course of the 1999 competition from a McDonald's restaurant. She submitted that it was not for her to formulate any particular theory as to how 1998 labels came to be supplied to claimants in 1999, let alone to prove any such theory. This may be, in principle, correct, although much may depend upon the proper construction of the rules of the competition and of the terms of any contract between each claimant and the respondent. However, at times, it seemed as if the applicant were asserting that in the absence of any inherent improbability in the evidence of a claimant, his or her evidence ought be accepted unless the respondent demonstrated that he or she did not receive the relevant stamp during the 1999 competition. On more than one occasion, I pointed out that each claimant's evidence must be assessed in the light of the evidence as a whole, and that evidence which, on its own, appears credible, may appear otherwise when viewed in the light of other evidence. I suggested that in those circumstances, it would be wise for the applicant to address the question of how a 1998 stamp may have been issued in the 1999 competition.
47 In her written submissions, the applicant suggested that the most likely explanations for 1998 stamps finding their way into the 1999 competition were:
* that Pemara had retained labels printed for the 1998 competition and that these were supplied to one or more of the packaging companies in 1999, affixed to 1999 packaging and then distributed;
* that Walkers retained 1998 packaging and distributed it in 1999;
* that one or more of the packaging companies had retained 1998 labels, applied them to 1999 packaging and distributed them; and
* that some restaurants had retained 1998 packaging or parts of 1998 rolls of spare labels and distributed the packaging or labels to customers during the 1999 competition.
48 There was also at least a suggestion that Pemara may have actually printed 1998 stamps in 1999 and then distributed them. However I did not understand this theory to be advanced with great enthusiasm, and it can be easily discarded. I will deal with it later. There was also a suggestion that a packaging company may have retained 1998 packaging with labels and sent it to Walkers in 1999.
49 The theory that 1998 packaging may have been retained and distributed during the 1999 competition (whether by a manufacturer, Walkers or a restaurant) generally involved the assumption that a carton or cartons of 1998 packaging may have been so retained. It was not strongly argued that any lesser quantity may have been retained. There is good reason for that approach. If an open carton of 1998 packaging or "loose" packaging remained after the 1998 competition, it is very likely that the distinctive colour of such packaging would have attracted attention. Once detected, at some time between August 1998 and May 1999, it is likely that it would have been disposed of in one way or another. On the other hand, the cardboard cartons in which packaging is supplied to the restaurants are not so distinctive. They are readily distinguishable by the wording printed on them, by labels attached to them and in some cases, by the colour of the printing. Nonetheless, had a carton of 1998 packaging been distributed in a restaurant during the 1999 competition, it would have contrasted markedly with the 1999 packaging. The evidence indicates that a carton of any packaging item would last at least a day and, in some cases, up to a week or more. Thus, for an extended period of time, the restaurant would be distributing packaging which was different from that otherwise used in the promotion. No restaurant witness saw any such event. Very few of the claimants or their supporting witnesses suggested that they had received 1998 packaging.
50 It is, nonetheless, theoretically possible that something less than a full carton of 1998 packaging may have been retained. It is even possible that a 1998 label could have been affixed to one cup, box or bag, perhaps by a mischievous employee. There may be many other barely possible sequences of events which could have led to 1998 labels being in a restaurant during the 1999 competition. I did not understand the applicant to rely heavily upon the possibility that an "odd" 1998 stamp could have found its way into the 1999 competition. Such an event could probably occur only as the result of deliberate mischief by an employee. Whilst an occurrence of that sort is possible, it is unlikely that it could be the cause of more than one or two of the claims. The disputed stamps were allegedly acquired from restaurants across the country. Various items of packaging were involved. The stamps were allegedly obtained at different stages in the competition. Those factors suggest that it is unlikely that any one theory will explain all of the claims. I address these matters at this stage so as to ensure that they are kept in mind throughout my consideration of the evidence.
51 The respondent asserts that the disputed stamps were not obtained from restaurants in the course of the 1998 competition, and that claimants may or may not know of the defective provenance of their stamps. The respondent has not sought to prove the actual course by which each claimant came into possession of each stamp. It would be impossible to do so. Rather, it has contented itself with seeking to demonstrate that there was no 1998 packaging or labels in any of the relevant restaurants during the 1999 competition, so that none could have been supplied to customers. This exercise required the respondent to address two possibilities:
* that 1998 packaging had been retained in a restaurant following the 1998 competition; or
* that 1998 packaging or 1999 packaging with 1998 labels had been delivered to a restaurant in the course of the 1999 competition.
52 The restaurant evidence was designed to exclude both possibilities. The printing, manufacturing and distribution evidence was designed to exclude the second possibility. In the course of the applicant's cross-examination of the respondent's witnesses, a third possibility emerged which was something of a hybrid. It was based upon evidence that restaurants occasionally received transfers of packaging stock from other restaurants. The applicant suggested that 1998 packaging or 1999 packaging with 1998 labels may have been transferred from one restaurant (where it had been retained since the 1998 competition or received in 1999) to another restaurant. There is no evidence that this happened, but it remains a possibility.
PRINTING EVIDENCE
53 As I have said, Pemara printed all of the labels (including game stamps) used in connection with both competitions. The applicant has suggested that Pemara may have mistakenly printed 1998 labels in 1999, and that those were distributed and applied to promotional packaging utilized in the 1999 competition. Alternatively, she has suggested that Pemara may have retained labels or rolls of labels printed for the purposes of the 1998 competition and distributed these for the purposes of the 1999 competition.
54 Andrew McNamara is the national marketing manager of Pemara. He said that material used to produce the 1998 game stamps was disposed of by Pemara following the conclusion of the 1998 production run. This material included the 1998 printing plates, film, proofs and art work. Mr Beamsley, the stores supervisor at Pemara, and Mr Rutledge, the senior production planner at Pemara, gave supporting evidence to this effect. Some of the waste material was burned whilst the remainder was buried. Checks were also carried out at Mr McNamara's direction, prior to the commencement of the 1999 production run, to ensure that "Pemara did not retain any waste tokens, films, chromalin proofs, plates or any other material relating to ... [the 1998 competition]." As I understand Mr McNamara's evidence, without the requisite printing plates it would have been impossible to print 1998 labels. Further, it would not have been possible to generate new printing plates without the 1998 artwork, proofs or film. I see no reason to doubt the reliability of this evidence, particularly that concerning disposal of the printing plates.
55 Mr McNamara also said that changes to the printing process between 1998 and 1999 rendered it impossible for Pemara mistakenly to have printed 1998 labels in 1999, even if the 1998 printing plates had been available. The reasons for this conclusion are complex. In the absence of any cogent contradiction of this evidence, I will merely summarize them. Firstly, the labels (and stamps) were printed on both back and front. The "front" of the 1999 label, which includes the back or backs of the stamp or stamps, bears the distinctive yellow colour previously mentioned. The front of the 1998 label is red. On the other side of the label was printed the relevant property or other details of the stamp or stamps. After peeling, the printed side constitutes the face of each stamp. Plates were used to print both sides of the labels. The plates for the front of the label were designed to print sheets, each bearing a large number of impressions of the yellow or red front. The printing of the back of the label (including the face of each stamp) was more complex. It was necessary that the faces of all of the different stamps be printed in appropriate proportions. To facilitate this, plates were designed to produce sheets containing appropriate numbers of the various stamps. After printing, various cutting and perforating processes were performed. During preparation for the 1999 print run, it was realized that paper could be saved if the faces of the game stamps were arranged in a different way on the relevant plates. This resulted in the plates being smaller than, and laid out differently from the corresponding plates used in 1998.
56 The plates printing the common front and varying backs of the labels must be "aligned" and so must be the same size. Thus it would not be possible for the plate for the 1998 label front (ie the red side) to be matched with a plate bearing 1999 game stamp details. The converse is also true. Further, the cutting mechanism in 1999 was designed to conform to the 1999 layout of the plates. Even if it were possible to print labels using 1998 plates, the product would have been laid out in the 1998 form. The cutters would not have cut them appropriately. Finally, the printing machinery had been so modified for the purposes of the 1999 competition that it would not, in any event, have taken the 1998 plates. There may well have been other steps in the process which would also have been quite incompatible with the use in 1999, of the 1998 plates but to my mind, it is not necessary to take the matter any further. There is no reason to doubt Mr McNamara's evidence. It establishes that an accidental printing of 1998 labels could not have occurred in 1999. There has been no suggestion of any deliberate printing. Any such suggestion would have been fanciful. I am satisfied that Pemara did not manufacture 1998 labels at any time after the conclusion of the 1998 production run. In reaching this conclusion, I have had regard to all of the evidence in the case, including that of the claimants. I dispose of this theory now because it appears to me to be unarguable on the evidence, nor was it pursued by the applicant with any real enthusiasm. The evidence conclusively pointing to this finding is that:
* material essential to the manufacture of 1998 labels had been disposed of or destroyed;
* adjustments made to the manufacturing and printing processes in 1999 were such that unintentional printing of useable 1998 labels was impossible in 1999; and
* there has been no suggestion that Pemara intentionally printed 1998 labels in 1999.
57 I proceed hereafter on the basis that a stamp which had a yellow back was derived from a 1999 label and that a stamp with a red back was from a 1998 label. A 1999 stamp will have an "M" on its face. A 1998 stamp will not have such an "M". The converse of each proposition is also true.
58 It is also suggested that Pemara may have retained surplus 1998 labels and distributed these in 1999, innocently or otherwise, to the packaging manufacturers. The evidence lends no support to such a theory. In the course of Mr McNamara's cross examination, the following exchange appears (TS 1458 l 31 - TS 1459 ll 103; ll 15-20):
Mr Couper: Are you saying that your instruction was ... that everything to do with Project Puzzle [the 1998 Competition], all documents, all pieces of paper, all physical items to do with Project Puzzle were to be destroyed before you commenced work on Project Killer [the 1999 Competition]; is that right?Mr McNamara: Correct.
...
Mr Couper: I take it then that things to be destroyed would have included left-over rolls of game stamps from Project Puzzle...?
Mr McNamara: If there were any.
Mr Couper: Now that was a clear instruction, was it, to destroy things including left-over rolls of game stamps?
Mr McNamara: It was a clear instruction to destroy everything, however we decided, for archival and reference purposes, that we should keep a few rolls in our safe which are still there today. So, yes, we destroyed everything except for a few rolls of sample labels that we kept.
59 In other words, some labels were retained but they were in Pemara's possession. It is true that in cross-examination, Mr McNamara indicated that Pemara may have retained some relevant records of the 1998 operation. It seems also that Mr Vine from Creata did not agree that the 1998 art work had been returned to Creata by Pemara. These matters are, however, very trivial and do not lead me to doubt Mr McNamara's evidence. It seems most unlikely that Pemara retained 1998 labels at the commencement of the 1999 print run, even accepting the claimants' evidence at face value.
MANUFACTURING EVIDENCE - CUPS
60 The packaging used by the respondent for both promotions was supplied by Anzpac, Polarcup and Detmold. As I have already indicated, Pemara supplied the labels to them for application to the promotional packaging.
61 Polarcup manufactures the disposable paper cups used by the respondent for its various soft drink, orange juice and thick-shake products. It manufactured the large and medium promotional cups used by the respondent in connection with both the 1998 and 1999 competitions. In both years double labels were affixed to large cups, and single labels were affixed to medium cups. Orange juice was supplied in medium cups (with single labels), although described as "large".
Applicant's theories relating to Polarcup
62 The applicant suggests two ways in which Polarcup may have unwittingly supplied 1998 labels in the 1999 competition. Firstly, it may have retained surplus 1998 promotional packaging and sent it to Walkers for use in the 1999 competition. Secondly, it may have applied 1998 labels, either manually or mechanically, to 1999 promotional packaging. This may have occurred in either of two ways. Either Pemara may have supplied 1998 labels to Polarcup or Polarcup may have retained unused labels from the 1998 production run and affixed them to cups in the course of the 1999 production run.
Polarcup evidence
63 The following table lists Polarcup employees during the 1998 and/or 1999 competitions who gave evidence.
Name |
Position 1998 |
Position 1999 |
Date of Affidavit |
Cross-examined Yes/No |
Transcript Reference |
|---|---|---|---|---|---|
Aldridge, Brian Thomas |
Team Leader |
Team Leader |
29.05.2000 |
Yes |
5205-5222 |
Boyd, David Richard |
Machine Operator |
Machine Operator |
21.09.1999 |
Yes |
1669-1672 |
Byron, Dwayne John |
Team Leader |
Team Leader |
29.05.2000 |
Yes |
5223-5225 |
Clavell, John Edward |
Team Leader |
Team Leader |
May 2000 |
Yes |
5179-5195 |
Doering, Graham |
Machine Operator/ Acting Team Leader |
Machine Operator/ Acting Team Leader |
21.09.1999; May 2000 |
Yes |
1665-1668; 5196-5203 |
Erkkila, Helena |
Quality Assurance Co-ordinator |
Quality Assurance Co-ordinator |
22.09.1999; 29.05.2000 |
Yes |
1750-1755; 5165-5175 |
Groth, Leonard Frank |
Raw Material Controller |
Raw Material Controller |
21.09.1999 |
Yes |
1659-1664 |
Hale, Kelvin John |
Plant Manager |
Plant Manager |
22.09.1999; 10.05.2000 |
Yes |
1562-1571 |
Kells, Rodney |
Quality Assurance Operator |
Quality Assurance Operator |
21.09.1999 |
Yes |
1680-1682 |
Lewin, Clinton Robert |
Machine Operator |
Machine Operator |
22.09.1999 |
Yes |
1674-1678 |
Manning, Maureen Margaret |
Product Manager |
Product Manager |
22.09.1999 |
Yes |
1622-1650; 1701-1704 |
Stanley, Charles John |
Paper Technician |
Paper Technician |
22.09.1999 |
Yes |
1651-1657 |
Presence of 1998 Labels or Packaging at Polarcup in 1999
Receipt and storage of 1998 labels
64 In 1998, red labels were delivered in cartons to Polarcup by Pemara. Each carton contained seven reels of labels with 9000 labels per reel. The reels were stored in a locked cage in the warehouse in accordance with an internal security protocol. The reels were later transferred, either to the office of the team leaders responsible for the production of the 1998 promotional cups, or to a locked cage on the factory floor. When required, they were issued to the operators of the paper cup machines by a team leader. Occasionally, labels or reels proved faulty. Such a reel was removed from the machine and returned to the locked cage in the warehouse.
Production waste
65 The production process generated two types of waste. The first comprised unused or unusable paper or labels. The second comprised cups with labels attached which had been rejected for quality assurance reasons. Production waste was placed into bins beside each machine and transferred to a compactor. A bin containing waste remained on the factory floor for no more than 12 hours. Material handlers cleared the factory floor of waste before each shift. Waste in the compactor was crushed and buried. For one reason or another, some reels of labels could not be used on the label application machinery. Such reels were kept in the locked cage on the factory floor and applied manually.
Presence of 1998 promotional packaging in Polarcup premises after conclusion of 1998 production run
66 Mr Hale, the plant manager, said:
At the end of Project Puzzle, no labelled cups remained in stock or at the plant to my observation.By the end of 1998, the entire production of Monopoly packaging for Project Puzzle had been delivered to FJ Walker. "KJH-11" is a true copy of a business record showing that no Project Puzzle stock remained.
I ensured that any left over red labels on reels were removed from the paper cup machinery, the locked cage in the warehouse and from the locked cage on the factory floor. I then placed the red labels into the compactor for removal and security landfill by JJ Richards. No Project Puzzle labels remained on Polarcup's premises.
67 It emerged from Mr Hale's cross-examination that his personal inspections were restricted to the manufacturing area, not including the storage or despatch area. It also seems that certain records (ex KHJ11) to which he referred related only to large cups. No records concerning medium cups were produced. Nonetheless, there is no reason to believe that 1998 packaging stock was retained by Polarcup. After all, its obligation was to manufacture cups and supply them to Walkers. While it is possible that some stock was not so delivered, it seems unlikely. There is no evidence to support this theory other than the claims.
Application of Labels in 1999
68 The applicant submitted that it was possible that 1998 labels were applied to cups during the 1999 production run, such application being either mechanical or manual. I have already considered the evidence concerning the possibility that Pemara retained 1998 labels up to the time of the 1999 competition. It is very unlikely. Similarly I consider it very unlikely that Pemara delivered 1998 labels to Polarcup (or any of the other packaging manufacturers) in 1999. This being the case, Polarcup could only have applied 1998 labels to 1999 promotional cups if it had retained such labels after the end of the 1998 production run. There would have been no reason to do so. There is no evidence that this occurred. Such evidence as there is suggests the contrary. Mr Leonard Groth, who was responsible for receiving, checking, recording, and storing the reels of labels in both 1998 and 1999, stated that all of the labels used during the 1999 production run were yellow and that he did not see any red labels on the butt reels returned to the warehouse cage in 1999. The evidence from Mr Hale quoted above is to similar effect. In general, the evidence demonstrates that 1998 labels could not have been applied mechanically in 1999 and that it is unlikely that any such labels were applied manually.
The manufacturing process
69 Cups are manufactured from flat paper boards, pre-printed with the relevant cup design. The boards are fed into a paper cup machine which forms the cups, stacks them in sleeves, and then seals each sleeve in a plastic bag. There are forty cups per sleeve of large cups, and fifty cups per sleeve of medium cups. Once bagged, the sleeves of cups are packed into cartons. The same four cup machines were used in each year. Each machine was fitted with a special labelling unit acquired by Polarcup for this specific purpose. These units apply a label over a black dot printed on the face of each cup. They are fed with labels from reels obtained from Pemara. The 1998 reels bore 9,000 red labels whilst 1999 reels bore 10,000 yellow labels. Each machine had a "missing label sensor" which determined whether or not a label had been affixed over the black dot. If the sensor detected a black dot, the cup in question was mechanically rejected. When a cup was rejected for this reason, all of the cups in the sleeve of which that cup was a part, and sometimes all of the cups in the following sleeve, were also rejected. This occurred regardless of whether such cups had correctly applied labels. Rejected cups accumulated in a bin attached to each machine. A flashing light alerted the machine operator.
Evidence from cup machine operators
70 The respondent led evidence from a number of the persons who operated the paper cup machines. They loaded their machines with reels of labels supplied by the team leader at the beginning of each shift, and from time to time as required. Each operator recalled that in 1999 they fitted only reels of yellow labels. Similarly, each recalled fitting only reels of red labels in 1998. During the course of a shift, a machine operator was also required to make hourly checks of the cups produced by his/her machine to ensure that labels were correctly applied and that other quality assurance guidelines had been met. These tests required a close examination of the cups inspected. The machine operators recalled seeing only yellow labels applied to promotional cups during the 1999 production run.
Machine Calibration
71 In 1999, because of the increase in the number of labels on each reel (from 9000 to 10,000), the distance between labels on the reels was reduced to approximately 1 centimetre. This reduction in the distance between labels necessitated a recalibration of the labelling units to ensure that the labels were correctly applied. As a result, the settings of the equipment in 1999 differed from those in 1998. It would not have been possible for 1998 reels to have been used with the 1999 calibrations. Had a machine been loaded with a 1998 reel, the sensing equipment attached to each machine would have alerted the operator. There is no evidence that any such problem occurred.
Evidence from Polarcup quality assurance employees
72 For the 1998 and 1999 Monopoly production runs, Polarcup implemented quality assurance protocols. Every two hours there were detailed checks of sleeves of cups selected at random. Each check included an inspection of the print colour and quality of the cups and of the quality of the labels and their placement. Where any defect was detected, the entire carton of cups was quarantined and checked further. These tests required close inspection of cups and labels. A number of quality assurance personnel were employed by Polarcup for this purpose. Ms Helena Erkkila, the quality assurance co-ordinator, said that if red labels had been introduced into the production run for 1999 promotional cups, the cups bearing those labels would have been immediately detected. None of the quality assurance employees whom she supervised in 1999 reported the presence of red labels, nor did she see any. Another quality assurance employee who gave evidence on behalf of the respondent, Mr R Kells, also indicated that he had not seen any red labels affixed to cups in 1999.
Manual application of labels
73 The applicant asserted that 1998 labels may have been manually applied to 1999 promotional packaging. Labels were manually applied by Polarcup employees in two circumstances. Firstly, labels containing winning stamps for both minor and major prizes were manually applied (or "seeded") by certain senior employees. Seeding involved removal from one cup of the label applied by the machine and replacement of it with a prize label. Alternatively, a cup bearing a non-prize label might be replaced with a cup to which a prize label had been affixed. In both 1998 and 1999, all major prize labels were seeded in accordance with instructions from the respondent, and a record was kept of the cartons containing "seeded" cups and their destinations. Those who seeded the prizes did not see any red labels in 1999.
74 Labels were also applied manually to cups which were correctly manufactured but which, for one reason or another, had not been labelled. Both machine operators and casual employees fulfilled this function. The manually-applied labels were taken from part-reels ("butt reels") which were stored with the full reels. They had been removed from machines before being fully used. This would occur if, for example, a particular reel was causing problems or if an operator took advantage of machine "down time" to replace a reel which was nearly exhausted in order to avoid further disruption of production. None of the machine operators or team leaders called by the respondent saw any reels of red labels in 1999, nor had they seen any individual red labels.
Arthur Andersen Audit
75 On 3 July 1999 two accountants from Arthur Andersen, one of whom was Mr Sirikul Thaiphan, a manager in the dispute analysis division of that firm, attended at the Polarcup premises. They were instructed to review waste labels to ensure that "all waste labels had a yellow back and golden arches on the faces." Mr Thaiphan and his colleague, Mr Taylor where shown waste baskets containing damaged cups from the day's production run. They peeled off and inspected most of the labels from the damaged cups, placing the labels into a number of bags. They were later joined by Mr Timothy Carthy, a senior manager of Arthur Andersen. They then inspected a locked cage containing rolls of waste labels which remained from previous production runs. Samples of these rolls and the bags of labels were taken to the offices of Arthur Andersen.
76 Mr Carthy subsequently instructed a number of employees to examine each label. Mr Carthy estimated, from weighing the labels inspected, that Arthur Andersen employees had inspected 20,175 stamps in performing this process. Ms Rebecca Conoulty, a senior accountant in the employ of Arthur Andersen, supervised the inspection by thirteen Arthur Andersen staff. She also inspected some of the labels. Ms Conoulty said:
When the peeling of the labels had been completed, I showed Timothy Carthy...the bags of peeled Polarcup labels and told him that I, and those working with me had not found any Monopoly property stamps that did not have the golden arches logo....I told him that the Polarcup labels inspected which depicted a Monopoly property had the golden arches logo on them, and yellow backs.
77 None of the deponents from Arthur Andersen was cross examined.
Cross-examination
78 Much of the cross-examination and associated criticism of the evidence from employees of the packaging manufacturers can be effectively dealt with collectively at the end of my consideration of all of the evidence from those sources. However some of the criticism and a few of the themes pursued in cross-examination were unique to one or other of the manufacturers. In the case of Polarcup, specific criticism was directed at evidence from machine operators as to the labels which they had seen and used in 1999. It was suggested, perhaps with some justification, that parts of their evidence appeared to be based on assumption rather than actual knowledge, particularly as to butt reels being taken from the machines and placed in the warehouse cage. As far as it goes, the criticism may be valid, but the point of all of the Polarcup evidence, and indeed of all of the evidence from the packaging manufacturers, is that none of the witnesses recalls seeing a red label during the 1999 production run.
79 A second criticism of the Polarcup evidence was that while the witness, Hale indicated that he had re-calibrated machinery to accommodate the difference in the spacing of labels, another witness, Aldridge, suggested that he had regularly recalibrated the machines. It was suggested that Mr Hale's evidence might be incorrect. I do not understand the logic of that proposition. It is clear from the evidence of Mr Aldridge, especially at TS 5208-5210, that he was talking about recalibration for a quite different purpose, namely to take account of difficulties being experienced with the thickness of the "web" which was the roll of paper to which the labels were fixed on the reels. In fact, Mr Aldridge's evidence offers further support to the respondent's case. It seems from par 17 of Mr Hale's first affidavit that the paper cup machine would sense the presence or absence of a label on a cup, implying that the labels were applied prior to the paper going through the paper cup machine. It is presumably easier to fit a label to a flat piece of cardboard than to fit it to a curved surface. At TS 5214-15, Mr Aldridge suggested that the cup machine (as opposed to the labelling unit) might have detected the colour difference between red and yellow and rejected a red label if it were set to accommodate a yellow label. If so, this would have been another check upon the use of 1998 labels in 1999. The matter is not of any great substance, but it is important to put the criticisms of the evidence into perspective.
80 A further criticism is as to a minor inconsistency between the evidence of Mr Hale and that of Mr Groth concerning the disposal of some excess labels from the 1998 competition. It is hardly surprising that there should be a difference in recollection after the passage of time. The matter is of little consequence.
81 The applicant pointed out that Polarcup records showed two stock adjustments concerning 1998 promotional stock. One concerned a pallet of twenty-four cartons. It seems that an adjustment was made to account for the fact that there was no stock remaining in the Polarcup establishment although stock figures suggested otherwise. (See the evidence of M M Manning at TS 1630 - 1632.) The factory was searched, but no stock was found. As a result, an adjustment was made so that the records reflected the fact that no stock remained. There was one other adjustment to reduce an opening stock balance of "-1" to "0". Both adjustments seem to re-inforce the evidence that no 1998 stock remained at Polarcup. The applicant apparently suggests that the records are demonstrably unreliable and/or that the "missing" stock may have been "somewhere", and that it may therefore have re-appeared during the 1999 promotion. The evidence goes no way towards establishing this.
82 The applicant implies that the premises in question are such that stock can be readily misplaced and further, that any search which fails to locate it must be, at best, inconclusive as to whether that stock is there. I do not find that approach to be attractive. Taken to its natural conclusion, it would substitute for the civil standard of proof, a requirement of absolute certainty. It seems to assume that there is an onus upon the respondent to prove even intermediate facts to that artificially high standard. I have taken time to discuss the issue at this stage because, to my mind, it has infected much of the applicant's conduct of these proceedings.
83 Finally it was suggested that as labels were applied manually in the course of the 1999 promotion at Polarcup, 1998 labels may possible have been used. Nobody who has been called to give evidence saw any red labels in the factory in the course of the 1999 competition, notwithstanding that they were in positions in which it might reasonably have been expected that they would have done so had such labels been there. It may be that the Polarcup evidence does not absolutely exclude the possibility of 1998 labels being used in 1999, but it suggests that it is highly unlikely.
84 These criticisms must also be seen in light of the evidence from Pemara, Walkers and restaurant staff. Although many people in this production and distribution chain have been called to give evidence, none saw anything which resembled 1998 packaging or 1998 labels during the 1999 competition, save for those produced by some restaurant customers. Amongst the claimants and their witnesses, a few have claimed that they received blue 1998 packaging or red 1998 labels. Many claimants were sure that they had received purple 1999 packaging and/or yellow 1999 labels. That evidence must await consideration at a later stage.
MANUFACTURING EVIDENCE - HASH BROWN BAGS
85 Detmold currently supplies the respondent with hash brown bags and other items of packaging. For the 1998 and 1999 competitions Detmold supplied specially printed promotional hash brown bags to which competition labels were attached. The bags in each year were predominantly white, but the coloured design differed from year to year. Although the 1998 and 1999 bags were not as markedly different from each other as were the 1998 and 1999 cups and fry boxes, they were easily distinguished.
Applicant's theories relating to Detmold.
86 The applicant propounded three circumstances in which Detmold may have supplied 1998 labels attached to hash brown bags in 1999. The first was that Pemara may have supplied, for the purposes of the 1999 production run, reels of 1998 labels which were applied by Detmold to 1999 promotional packaging. The second was that Detmold may have held, at the time of the 1999 production run, reels of labels (or portions of reels) remaining from the 1998 production run which were applied to 1999 hash brown bags. The applicant did not expressly suggest that Detmold employees may have manually applied 1998 labels to 1999 packaging. Thirdly, it was suggested that "it is possible that there may have been some leftover cartons of hash browns [that is, bags] from the 1998 production run ... ." In other words, a carton or cartons containing 1998 promotional hash brown bags with 1998 labels may have been retained by Detmold following the conclusion of the 1998 production run and supplied to Walkers during the 1999 competition.
87 The following table lists employees of Detmold during the 1998 or 1999 competitions who gave evidence.
Presence of 1998 labels or packaging at Detmold in 1999
1998 Production run
88 The production run for the 1998 competition commenced on 5 May 1998 and concluded on 5 August 1998. Production took place over two shifts per day, five days per week. The day shift commenced at 7.00 am and concluded at 3.06 pm. The afternoon shift commenced at 3.00 pm and concluded at 11.06 pm. Most of the 1998 production was conducted during the day shift for security and quality control reasons, although production did, from time to time, take place during the afternoon shift.
Receipt and storage of 1998 labels
89 The reels of red 1998 labels were delivered to Detmold from Pemara between 1 May 1998 and 5 August 1998. They were transferred to the flat and satchel factory within an hour of delivery. This was the part of the Detmold premises where the hash brown bags were printed and labelled. Mr Declan Finan, the manager of that factory, said:
Upon receipt the cartons of reels were then transported by me, or under my supervision, to a 40-foot shipping container which had been obtained and placed as close as possible outside the manufacturing area and within the factory grounds to provide secured storage for Project Puzzle. The secured container was kept padlocked at all times, and access was only permitted under my supervision as I had the only key.
Printing and label application machinery in 1998
90 Detmold used what was described as a "Holweg" machine for the production of McDonald's hash brown bags. Reels of paper are fed into the machine which prints the design using red, yellow and black ink, cuts the paper to the desired size and shape and glues the finished hash brown bag. For the purposes of applying labels to the 1998 hash brown bags, the respondent purchased a label application unit which was fitted by Detmold to the Holweg machine.
Calibration of labelling machine
91 At the time of the production run for the 1998 competition, Mr Adrian Crescitelli was employed by Detmold in an engineering capacity. At one stage during the production run it was necessary to run an afternoon shift. This lasted for approximately two weeks. During this time Mr Crescitelli performed the role of factory manager for the afternoon shift. He was responsible for the transfer of reels from the locked cage on the factory floor to the label application unit as required. Mr Crescitelli also supervised the modification of the Holweg machine to accommodate the label application unit. He said:
The instructions for the programming and operation of the label application unit [which] were provided by Compact Labelling Systems [the supplier of the labelling unit] were complex.
92 Mr Crescitelli was instructed by a representative of Compact Labelling Systems as to these matters. He was:
... the only person at Detmold who had the necessary knowledge to calibrate the label application unit, or to change the calibration to which it had been set.
93 He was also:
The only person at Detmold who calibrated, or changed the calibration of the label application unit.
94 The calibration process involved hitting certain keys on a computer keypad. The computer system was password-protected. As far as Mr Crescitelli was aware, only he and Mr Finan knew the password. When asked in cross-examination whether Mr Finan would have been able to calibrate the machine, Mr Crescitelli said that he would not. A fitter and turner was trained by Mr Crescitelli in the basic operation of the label application unit so that maintenance could be performed during the day shift. He was not taught how to re-calibrate it.
Production of 1998 hash brown bags
95 Mr Finan said:
Each production day ... sufficient cartons of reels to meet that day's anticipated production were removed by me from the secured container to a locked cage near the Holweg machine. I held the only key to the locked cage, although the operators had access to the locked cage under my supervision.Reels were removed as required from the cartons in the locked cage by me or the operators under my supervision and placed on the label application unit, which held two reels at a time. Generally, the label application unit applied 400 to 500 labels per minute up to a total of around 150,000 to 180,000 labels per shift, necessitating reel changes about every 20 minutes. At the conclusion of each day's production, any unfinished reels would be removed by me or the operator under my supervision from the label application unit and placed back in the locked cage.
96 An operator attended the Holweg machine. His duties included loading glue, ink and paper rolls onto the machine in accordance with the job specification. Completed bags were packed in bundles into cartons (or `outers') by packers. Packed cartons were loaded onto pallets which were then stretch-wrapped and stored in Detmold's finished goods store.
Production waste
97 Mr Finan said:
Any waste labels generated during the production process, consisting of either loose labels, such as those left on the adhesive at the tail end of a reel, those dislodged or damaged, or rejected bags with the label affixed were placed in a locked bin next to the Holweg machine which had a slot in the top for the insertion of the waste material.At the end of each day of Project Puzzle (the 1998 promotion) production, the waste bin by the Holweg machine was weighed and divided by a formula developed by me reflecting the approximate proportions of loose labels and labels fixed to bags which had been observed to be making up the waste, and the respective weights of each to ascertain the approximate number of labels which had become waste on a production day...
Initially the Project Puzzle waste was shredded by me daily using the shredder in my office, however this became too time consuming, and the waste was then inserted by me in one of the large locked document bins provided by Capital Doc-Shred Pty Ltd ("Doc-Shred"). These waste bins were regularly replaced and removed by Doc-Shred at my request.
98 Mr Finan also said:
At the end of the 1998 promotion, no reels or parts of reels containing 1998 labels remained in the Flat and Satchel factory at Detmold. All labels had either been applied to bags which had become finished goods and been despatched, had become waste in the production process and been shredded or placed in the secure bins and removed and destroyed by Doc-shred, or given to Ms Bussenschutt for return to McDonalds.
99 Mr Crescitelli gave similar evidence concerning the disposal of waste during the afternoon shift. This evidence is plainly inconsistent with the theory that Detmold retained 1998 labels until the 1999 production run.
Records concerning 1998 production
100 A considerable amount of time was spent in the course of the trial in cross-examining witnesses concerning documents which appear at pp 87, 90, 115 and 187 of exhibit TS1 to the affidavit of Mr Sullivan. Although these documents are exhibited to Mr Sullivan's affidavit they were created by, and relate primarily to the evidence of two other witnesses, Mr Finan and Mr Matthew Wilson. Mr Wilson generated the documents at pp 90 and 115. The former records the total number of cartons containing promotional hash brown bags produced as 8,046,000. The latter records the despatch of the same number of hash brown bags, presumably to Walkers. Mr Finan prepared the document at p 87 which is an attempt to reconcile the number of single labels delivered to Detmold by Pemara with the number used in the course of production. It shows that 8,132,952 labels were delivered according to a number of delivery dockets, and that a further 315,000 were received from Polarcup, a total of 8,447,952. From this figure have been deducted two quantities of game stamps said to have been sent to the respondent (2,770 and 160,000). This shows a total number used by Detmold of 8,285,182.
101 Mr Finan took the matter further in the document at p 187. He deducted from the figure of 8,285,142 bags, the 8,046,000 bags despatched to Walkers, showing a net difference of 239,182. He notionally attributed this number to waste, representing 2.88 per cent of bags used. This figure was then compared with the actual waste which had been weighed in the course of the production. It weighed 136 kilograms. Average weight of items of waste was known. By applying this to the figure of 136 kilograms, it was calculated that the actual waste figure was 234,482 bags representing 2.83 per cent of the total used. Thus it can be seen that there was a high degree of correlation between the notional and actual waste figures. No doubt that was of some importance, both for reasons of security and for the purposes of factory efficiency.
102 The applicant appears wrongly to have attributed the document at p 187 to Mr Wilson. (See par 31 of the written submissions.) She primarily criticizes these documents upon the basis that Mr Wilson in his figures relied upon information received from others which he had not checked. To the extent that this criticism relates to the documents at pp 90 and 115 which were prepared by Mr Wilson, it may be valid. However it seems that the factory records upon which he relied are in evidence, with the exception of those relating to two cartons, which records appear to have been lost. There was no objection to their admission. In effect, the evidence of Matthew Wilson shows that cartons containing 8,046,000 hash brown bags were produced, and all but two of the documents upon which his summary is based are in evidence. Mr Robert Wilson's affidavit (see pars 17 and 18) demonstrates that all of those cartons were despatched to Walkers. Further, par 14 of his affidavit demonstrates that the two cartons for which factory records have been lost were also sent to Walkers. In those circumstances I can see nothing in the applicant's criticism of this aspect of the respondent's case. Further, these records demonstrate that no cartons of 1998 stock remained in Detmold's possession.
103 A second criticism concerns the fact that Detmold sent 160,000 labels to the respondent. Anzpac subsequently acknowledged receipt of 180,000 labels. This is said to indicate some problem which I am not immediately able to grasp. There seems to be no reason why Anzpac should have received from the respondent precisely the same number of labels as were forwarded by Detmold. It is, I would think, possible that the respondent also obtained labels from some other source. In any event the matter says little or nothing about the Detmold records.
104 As I have said a considerable amount of time was spent on these matters in cross-examination. It has also taken a substantial amount of time to come to grips with the relevant submissions for the purposes of writing this judgment. In the end the matters are of no significance whatsoever. It has been one of the great misfortunes of this case that many of the issues raised and pursued by the applicant at great expense in terms of time and money have, in the end, proven to be of little or no significance. This has been particularly true of the applicant's criticism of the records of the respondent, Pemara, the packaging manufacturers, Walkers and the restaurants. The respondent's case has never depended primarily upon these records, but rather upon the evidence of numerous witnesses who might reasonably have been expected to see any 1998 packaging or labels if such material was in their respective areas of operation. They did not do so. To the extent that the records offer support for the assertion that there was no such material in the distribution chain or in the restaurants in 1999, no doubt the respondent relies upon them, but those records have always been very much secondary in importance to the direct evidence. The applicant seems to have attacked the records in order to distract attention from that other comprehensive body of evidence.
Presence of 1998 promotional packaging in Detmold premises after conclusion of 1998 production run
105 Mr Finan said:
At the conclusion of the Project Puzzle promotion, I retained in the flat and satchel factory (including the secured container and the locked cage) no reels or parts of reels containing the red Project Puzzle labels, these all having been applied to bags to become finished goods despatched to the finished goods warehouse, given to Jill Bussenschutt for return to McDonalds or alternatively having become waste in the production process and having been shredded or placed in secure bins and removed and destroyed by Doc-shred.
106 Mr Robert Wilson, Detmold's national warehouse manager, said that "by 7 August 1998 Detmold retained no Project Puzzle finished goods, these all having been despatched." He continued:
I undertook a manual reconciliation after the despatch of all Project Puzzle finished goods in 1998 which showed from a review of the control sheet Project Puzzle that all Project Puzzle finished goods had been despatched between 12 June 1998 and 7 August 1998, and that invoices had been raised (and paid) for every pallet.
107 Although I do not express a concluded view at this stage, this and the other evidence to which I have already referred, strongly suggest that no 1998 packaging or labels remained within Detmold's premises following the conclusion of the 1998 production run and the despatch of the relevant product on or about 7 August 1998.
Application of 1998 labels in 1999
108 The applicant submits that:
... contrary to the evidence of the witnesses called from Detmold, it was possible for 1998 stamps to have been applied to hash brown packets in 1999 because:* The volume of bags produced per minute was enormous (3,000 bags every five to six minutes).
* If a butt reel of 1998 stamps have [sic] been used during production, it is possible that these stamps could have gone unnoticed.
* The quality assurance sample of the features of the Hash Brown bag did not have a yellow stamp on it.
109 Each of these propositions may be correct, but they offer no support for the theory that 1998 labels remained with Detmold after the end of the 1998 production run. The applicant apparently relies upon the aphorism that what can go wrong will go wrong. In any event, for reasons which appear hereafter, such labels could not have been used in 1999.
1999 Production run
110 Detmold received a verbal order for approximately 9.5 million promotional hash brown bags from the respondent on or about 1 March 1999. Reels of 1999 labels were received from Pemara between 26 March 1999 and 16 April 1999. The production run started on 20 April and finished on 15 July 1999.
Recalibration of labelling machine
111 The Holweg machine and the label application unit used for the 1998 production run were also used for the 1999 production run. However, since the reels for the 1999 competition contained 10,000 labels (as opposed to 9,000 labels on the reels used in 1998), it was necessary to re-calibrate the label application unit. This task was performed by Mr Crescitelli in January 1999, using a number of plain blue trial reels received from Pemara for this purpose. Mr Crescitelli said that:
... until the conclusion of the Project Killer (the 1999 promotion) production run, I was the only person at Detmold trained to calibrate the label application unit, and I remained responsible for overseeing its operation, including dealing with any problems which the operators could not fix by manual adjustments of the reels or the rollers.
112 The re-calibration process involved "clearing the existing memory, inserting the necessary information and checking it." This process took about half an hour and was followed by a test, using blue test labels supplied by Pemara. Mr Crescitelli said in his affidavit that:
It was also necessary due to the increased diameter of the reels containing 10,000 labels to increase the size of the plastic discs holding the reels on the heads of the label application unit. I designed and had manufactured...new larger plastic discs which I installed on the label application unit in late April 1999.
113 Mr Crescitelli said that had reels containing 9,000 labels (ie reels of 1998 labels) been placed on the machine after the label application unit had been re-calibrated to accommodate the 10,000 label reels, "effective production would cease almost immediately in that the labels would be affixed at the wrong place on the hash brown bags". Had this occurred during the 1999 production run, he would have been responsible for rectifying the problem. He was not asked to do so at any stage during the 1999 production run. Of course the modification of the plastic discs also rendered such an operation impossible.
Storage of 1999 labels
114 As was the case with the 1998 production run, cartons containing the reels of labels were stored in a locked shipping container which was located outside the door of the flat and satchel factory. Access to this container was permitted only under the supervision of Mr Sullivan who retained the key. Mr Sullivan said that:
Each production day for Project Killer, sufficient cartons of reels to meet that day's anticipated production were removed from the secured container to the locked cage near the Holweg machine. I held the only key to the locked cage, although Bob Von Heytmanek and the operators of the Holweg machine had access to the key under my supervision.Reels were removed as required from the cartons in the locked cage by me or the operator under my supervision and placed on the label application unit, which holds two reels at a time. Generally, the label application unit applied between 400 and 500 labels per minute up to a of total between 150,000 and 180,000 labels per shift, necessitating reel changes on the label application unit about every 15 to 20 minutes.
At the conclusion of each day's production, any unfinished reels would be removed by me or the operator under my supervision from the label application unit and placed back in the locked cage.
115 Mr Sullivan also said that at the conclusion of the 1999 production run, all reels of labels had been used and:
As Flat & Satchel Factory Manager, I was in attendance for each day of Project Killer production. I only saw yellow labels at all stages of the production process. If I had seen other than yellow labels, I would have immediately halted production and raised the matter with Jill Bussenschutt.
Printing and labelling
116 Mr Harry Milochis was an operator of the Holweg machine during the 1999 production runs. His duties included loading glue, ink and paper rolls in accordance with the Project Killer job specification. He said that, "... for Project Killer, I also loaded reels of yellow labels onto the label application unit incorporated within the Holweg machine." Mr Milochis was able to fix minor problems with the functioning of the label application unit, but he was not involved in re-programming it. Mr Milochis did not see any 1998 labels in 1999. He said:
During the shifts on which I worked operating the Holweg machine...I loaded only reels containing yellow labels on the Holweg machine. I did not see any red or blue labels and if I had, I would not have loaded these, but would have returned them to Tom Sullivan or Bob Von Heytmanek.
117 Mr Milochis did not ever see labels being applied manually. He said in cross examination that during the 1999 production run, the colour of the reels (presumably of the labels on the reels) given to him for loading onto the label application unit "would have mattered".
Packing and quality assurance testing of 1999 labels
118 The respondent called a number of the packers employed by Detmold to pack the hash brown bags into cartons or, as they were sometimes called, outers. Under the quality assurance guidelines, packers were responsible for checking that the quality of all product complied with approved samples that were attached to the Holweg machine. They were required periodically to perform a series of tests on randomly selected bags for quality assurance purposes. Each half hour a packer would remove two samples of a finished bag, one of which was examined by the packer and the other kept for later review by a Detmold quality inspector. The packer was required to check the sample against the quality-approved sample bag attached to the machine and the written specifications for the job. The examination included ink colours, print image and position and bag adhesive qualities.
119 As I have said, a number of the packers engaged in packing bags for the 1999 promotion provided affidavits and were cross-examined. They consistently said that during the shifts on which they worked, they saw only yellow labels affixed to hash brown bags and did not see any red or blue labels. All gave evidence similar to that of Miss Isabelle Monvoisin who said that:
Had I seen other than a yellow label on a hash brown bag, I would have immediately stopped the machine and brought the matter to the attention of Tom Sullivan, the Flat & Satchel Factory Manager, or Bob Van Heytmanek, the Flat and Satchel Factory Supervisor. I would not have packed any bags with other than yellow labels. I would have noted any non-yellow labels on the quality check sheet by making a note of the time and a written comment in the `comment/acts' section.
120 It was a theme of the applicant's cross examination of the packers and Sue Taylor, the quality assurance manager, that the packers were not specifically required to perform checks on the colour of the labels. Whilst this may have been so, the common response was that "anything different would have been obvious". One witness, Miss Baldock, also said that in addition to the periodic check required by the quality assurance procedures she would, at least every five or ten minutes, flick through a bundle of bags to ensure that labels had been applied to all of them.
121 Sue Taylor, the quality inspector said:
Although the label itself (including its colour) was not a standard quality check, its placement on the bags would be a forming or a printing and registration quality check, and for Project Killer, if the label affixed to the bag was not a yellow label this would be understood to be a major non-compliance with specifications.
122 As I have noted, the packers called by the respondents generally understood this to be the case. Miss Taylor also said that during her inspections of sample bags from the 1999 production run, she did not see any labels which were not yellow and in particular, did not see any red or blue labels.
Warehousing and despatch of 1999 production
123 Mr Robert Wilson, Detmold's National Warehouse Manager, said that during the 1999 promotion he only ever saw pallets containing cartons fitting the specifications for the 1999 competition and that he did not see any 1998 cartons. He further stated in his affidavit that:
No Project Puzzle finished stock hash brown bags were despatched for Project Killer in 1999.
If Project Puzzle finished goods had existed and had been forwarded to the finished goods warehouse for despatch, or been despatched in 1999, they would have been queried by me or my staff... .
It is true that Mr Wilson said that he may not have seen all goods as they were despatched, but that hardly weakens his evidence concerning the contents of his warehouse.
Seeding of major prizes
124 As was the case in 1998, labels containing minor and major prizes were placed on promotional hash brown bags manually in accordance with instructions received from the respondent. This process was undertaken by Detmold's accounting manager Matthew Wilson and Jill Bussenschutt. Mr Wilson did not give any evidence as to this. Ms Bussenschutt said that in performing all of her duties as far as they related to the 1999 production run, she did not see any red 1998 labels during 1999.
Arthur Andersen audit
125 Mr Sullivan said that:
On Saturday 3 July 1999 during the Project Killer production run, Joseph Rossi and two other staff from Arthur Andersen attended Detmold's flat and satchel factory and, after I had unlocked one of the locked Doc-Shred bins used for Project Killer, examined the contents which included loose labels, labels on discarded portions of reels, labels at the end of a reel, and labels attached to rejected bags.I estimated that the contents of this Doc-Shred bin represented approximately 20,000 waste labels on the basis of my experience of weighing the daily Project Killer waste.
Joseph Rossi took the Doc-Shred bin away with him when he left on 3 July 1999, and it was subsequently returned to Detmold with the game tags "peeled" off the labels and removed. This bin and its remaining contents were removed by Doc-Shred for destruction at my request on 10 August 1999.
126 Mr Joseph Rossi, a senior accountant in the employ of Arthur Andersen, and two other employees of Arthur Andersen attended at the premises of Detmold where they examined the labels on damaged hash brown bags and on damaged rolls "to see whether the McDonald's golden arch logo was present". Mr Rossi was not instructed to look at the colour of the backing of the labels. Mr Rossi said that, "... no labels were found of street names or stations which did not have the golden arches logo on them." Neither Mr Rossi nor any of the other employees of Arthur Andersen who performed similar tasks was required for cross examination.
MANUFACTURING EVIDENCE - FRY BOXES; PIE BOXES
127 Anzpac produces the generic medium and large fry boxes and apple pie boxes used by McDonald's in its day-to-day operations. It also manufactured medium and large fry boxes and apple pie and cherry pie boxes for the 1999 promotion. For the 1998 promotion, Anzpac manufactured medium and large fry boxes. Pies were not promotional items in 1998. Some Anzpac employees referred in their evidence to fry boxes and pie boxes as "cartons". In what follows, I have described them as "boxes" because that approach is more consistent with the bulk of the evidence. The word "carton" is generally used to describe the container in which a fixed quantity of packaging is supplied (also known as an "outer").
Applicant's theories relating to Anzpac
128 The applicant asserts that it is possible that Anzpac applied 1998 labels to 1999 promotional packaging which was subsequently distributed via Walkers to restaurants during the 1999 competition. It is suggested that this may have happened in either of two ways. The first is that Pemara may have inadvertently supplied 1998 labels to Anzpac for the purposes of the 1999 competition, which labels were applied to 1999 packaging. The second is that Anzpac may have retained surplus 1998 labels which were used during the 1999 production run. Implicit within both theories is the proposition that Anzpac applied 1998 labels (however acquired) to 1999 promotional packaging. A third possibility is that 1998 packaging with 1998 labels was retained by Anzpac and sent to Walkers in 1999. The applicant did not expressly advance this theory in connection with Anzpac but did so in the case of Detmold. The respondent argues that the evidence shows that all of these theories are improbable.
Respondent's evidence
129 The following table lists those persons in the employ of Anzpac during the 1998 or 1999 competitions who gave evidence.
Presence of 1998 labels or packaging at Anzpac in 1999
1998 production run
130 Anzpac commenced production of medium and large fry boxes for the 1998 competition on or about 1 April 1998 and concluded it in the first half of August 1998. Production took place over two shifts per day.
Labelling process
131 The printing of the promotional fry boxes and their labelling were conducted by different departments within Anzpac. The "sheet fed" department was responsible for labelling. The labelling machine was programmed for the 1998 competition to accept the 9,000 label reels supplied by Pemara. Anzpac stored the labels in a label storeroom, access to which was limited to a number of senior staff who had keys. Labels were only distributed by such key holders to the operators of label machines.
Label wastage
132 In the process of manufacturing and labelling 1998 promotional fry boxes, labels might be wasted before or after being affixed to boxes. Waste labels which had not been so affixed were placed in an ice cream container attached to the side of the labelling machine. Once daily, the waste labels were removed by Mr Carlos Schwinidt, the sheet-fed manager. He weighed them and stored them in a locked drawer in his office. The door to his office was locked at all times when he was not there. Only Mr Schwinidt and Anzpac's general manager had keys to the office. Mr Schwinidt shredded these labels on a weekly basis. Waste boxes were removed from the labelling machine by the machine operators or packers and placed in a red security bin located near the labelling machine. Mr Schwinidt weighed this waste daily and destroyed it by shredding.
133 During the labelling process, the labelling machine would not always use all of the labels on a reel. The remaining labels could not always be easily utilised in a production run. These butt reels were removed from the labelling machine and placed by Mr Schwinidt with the label waste to which I have already referred in a locked drawer in his office. The butt reels for the 1998 competition were retained until the conclusion of the 1998 production run, at which time they were used on the labelling machine. This was a slow process.
Disposal of all 1998 labels
134 Mr Raciborski, the then manufacturing manager of Anzpac, gave evidence that upon the completion of the 1998 production run in August 1998, about six rolls (each containing a small number of labels) were returned to the respondent and that Anzpac then had no unused labels. He did not do this himself but understood it to have been done. During Mr Schwinidt's cross-examination, the following exchange occurred between him and counsel for the applicant:
Mr Couper: At the end of the 1998 production run for Project Puzzle, were there labels left?Mr Schwinidt: None
Mr Couper: None?
Mr Schwinidt: No labels at all. Everything was labelled, the waste destroyed. There was nothing left on our premises.
Mr Couper: But when you say the waste destroyed, when the machines finally stopped working, were there some labels left?
Mr Schwinidt: Some waste labels and some waste cartons with misplacement which were weighted (sic) and then shredded.
Mr Couper: Yes. And how about reels of labels? Are you saying that every reel of labels was used up by the end of the production run?
Mr Schwinidt: That's correct.
135 There is an apparent inconsistency between the evidence of Mr Raciborski and that of Mr Schwinidt as to the return of unused labels to the respondent in 1998. It is not difficult to understand such a difference in recollection. The important point is that both were sure that no labels or packaging remained with Anzpac after the end of the 1998 production run. The applicant submitted that the witness, Lowe had said that thirteen rolls remained, which would be inconsistent with Mr Raciborski's recollection that six rolls remained. However Mr Lowe said at TS 1787 that he did not recall how many rolls remained, but that there were no more than thirteen. (TS 1787.)
136 Mr Raciborski, in cross-examination, said that he did not see any 1998 labels or boxes during his inspection of Anzpac's manufacturing facilities after the conclusion of the 1998 production run. When asked where he had checked, he replied:
I, in fact, walked the whole factory. I checked the locked store where the labels were kept. I checked the finished goods area. I checked the area where the labelling had occurred and where the work in process was stored.
Records concerning 1998 production
137 In the present context, I should discuss Anzpac's security protocol for the 1998 competition, one aspect of which was that there be a regular reconciliation of labels received from Pemara with the number of labels applied to fry boxes and those wasted. During the first half of the 1998 production run (from about 1 April until approximately the end of June) such a reconciliation was undertaken every two weeks. From the end of June until the end of the promotion in mid August 1998, the reconciliations were conducted, on average, every two days. There were three aspects to the reconciliation procedure:
* an audit of all ordinary minor and major prize labels received by Anzpac;
* a reconciliation of the reels of labels remaining on hand with manufacturing records which showed total usage and wastage; and
* an audit of total finished goods on hand.
138 The following passage concerning the reconciliation process appears in the cross-examination of Mr Raciborski:
Mr Couper: And do we take it from Exhibit PR7 [to the affidavit of Paul Raciborski] that those three aspects - that is, delivery of the labels, waste and finished produced shipped out - neatly reconciled to within 400 ... labels for single tokens, and 100 labels for double tokens? Is that what PR7 indicates?Mr Raciborski: That's correct.
139 A rather extensive cross-examination of Mr Raciborski concerning the adequacy, thoroughness and accuracy of this process failed to undermine this evidence. Mr Carlos Schwinidt was intimately involved in the reconciliation process, while Mr Raciborski oversaw the whole operation. Mr Schwinidt said that he had produced a document entitled "Labels Reconciliation Sheet" which was exhibited to Mr Raciborski's affidavit. Mr Raciborski had claimed to be the author of this document. In my view, this and other minor discrepancies between Mr Raciborski and Mr Schwinidt's evidence are explicable for reasons not going to the credit of either witness, the effects of the passage of time being principal among them. I found both witnesses to be credible and reliable. In this context there is one further aspect of the evidence to which I should make brief reference. Mr Raciborski, in his affidavit, said:
Anzpac staff also undertook a stocktake of all packaging in the process of manufacture at the end of every month. The results are recorded on a spreadsheet. During November 1998 I verified, from Anzpac's stock records, that there was no Project Puzzle packaging recorded as being in production or waiting despatch.
140 Copies of the stocktake documents were appended to Mr Raciborski's affidavit. These records are consistent with the evidence given by Mr Raciborski and Mr Schwinidt that there was no 1998 promotional packaging remaining at Anzpac's premises following the conclusion of the 1998 production run. There is simply no evidence that 1998 promotional packaging or labels remained in the Anzpac premises following the conclusion of the 1998 production run. Although the possibility cannot be excluded, it seems unlikely.
Application of 1998 labels to 1999 promotional packaging in 1999
141 The applicant submits that, "there is evidence which would suggest that it was possible for a reel of 1998 stamps to be used during 1999". The evidence which, the applicant says, supports such a proposition is generally as follows:
* although the labelling machine used in 1999 was calibrated to accept only 1999 labels, the machinery may have been recalibrated by some person to accept 1998 labels;
* the "crew leaders" employed by Anzpac during the 1999 production run were not instructed not to use 1998 labels; and
* no machine operators were called from Anzpac to give evidence that 1998 labels were not applied to 1999 promotional packaging during the 1999 production run.
142 As I have said, there is no evidence that Anzpac retained 1998 labels following the conclusion of the 1998 production run. I have said that I consider it unlikely that Pemara distributed (and Anzpac received) 1998 labels for use in the 1999 production run. If these preliminary views are correct, there was no opportunity for Anzpac to apply 1998 labels to 1999 packaging. However other evidence also strongly suggests that even if Anzpac had access to 1998 labels, such an event could not have occurred. The reasons for this view appear below.
Receipt and storage of labels in 1999
143 In early February 1999, prior to the commencement of the 1999 production run, Anzpac received from Pemara two boxes containing reels of blank blue labels to be used for testing purposes. Testing was carried out over two days in early March 1999. All waste and finished test cartons were destroyed by shredding. Between February 1999 and June 1999, Anzpac received from Pemara the labels to be used in the 1999 production run. Mr Schwinidt, in his affidavit, stated that he was responsible for the security of the labels:
As was the case for the 1998 Project Puzzle, the labels were locked in the label storeroom. Only myself, Peter Lowe and Michael Hanson had a key to this storeroom.
144 Mr Hanson, a crew leader during the 1999 production run, said:
My role in relation to Project Killer (during the course of my shift) was as follows:(a) For the duration of my shift I was responsible for the security of all labels to be applied to cartons to be used in Project Killer. To the best of my knowledge and belief, labels for Project Killer were sent from Pemara to Anzpac every two weeks. Usually I was notified by Carlos Schwinidt that Project Killer labels had been received from Pemara. These labels came on pallets which had been shrink wrapped with plastic around the pallet. I personally took the labels to the label storeroom. To the best of my knowledge and belief, for the duration of Project Killer only Project Killer labels were stored in the label storeroom. Prior to the comment [sic] of Project Killer, I coordinated the changing of the locks in the label storeroom. Joe Rizzi, a maintenance worker, changed the locks under my supervision.
145 Mr Lowe said that he also collected labels from Mr Raciborski or Mr Schwinidt and took them to the label storeroom which he locked. This was presumably on shifts other than Mr Hanson's. As was the case in 1998, access to the label storeroom was strictly controlled. Although the evidence of the various Anzpac witnesses is a little unclear, it appears that only five people had access to it.
Labelling process
146 Mr Lowe and Mr Hanson said that at the beginning of their respective shifts, each would take sufficient labels from the label storeroom for the shift and distribute these to the label machine operators. After distributing the reels of labels, they then updated a spreadsheet which was located next to the label machines, recording the number of labels taken from the storeroom and issued to each of the operators. During their shifts they regularly checked whether the labels were being applied correctly to the boxes. Neither witness, in the course of his duties, saw a red label from the 1998 competition being applied to 1999 packaging.
Calibration of labelling machines
147 The reels of labels for the 1999 competition contained 10,000 labels per reel, this being 1,000 more than in 1998. Mr Lowe was responsible for reprogramming the two labelling machines used in 1999 to accommodate these reels. He said that the process of recalibration involved passing labels from a reel over an optical sensor that read the label length, the pitch (ie, the distance between each label) and, on one of the two machines, the colour of the label. After such recalibration, if anybody had attempted to operate a machine using a roll of 1998 labels, the effect would have been, in Mr Lowe's words, that "the machine would not receive the correct information when reading each label, [and] therefore would not be able to dispense the labels onto the carton accurately, and after dispensing three inaccurately, the machine would stop." Mr Lowe thought that he was the only person who had calibrated the two labelling machines used by Anzpac in 1999 and, to his knowledge, he was the only person at Anzpac capable of doing so. In order to re-calibrate a labelling machine, it was necessary to know how to feed a reel into the machine, together with the correct sequence of buttons to press in each step in the calibration.
148 The applicant submits that Mr Hanson also claimed to have the capacity to calibrate the machine (TS 1869). However it is not clear that he was referring to the same function as was Mr Lowe. It appeared from the Polarcup evidence that some minor recalibration was often necessary in that company's labelling operation, but it was not concerned with the spacing of labels on the rolls. Even if it be accepted that Mr Hanson could have re-calibrated the labelling machines to accommodate 1998 rolls of labels, there was no suggestion that he did so. Sub-paragraph 5(e) of his affidavit makes it clear that he did not.
Quality assurance
149 For both the 1998 and 1999 competitions, Anzpac implemented certain quality assurance protocols. Anzpac's quality assurance manager during both promotions was Ms Lynne Allister. It was her role to ensure that there was adequate quality assurance testing to detect any defects in the finished product, to oversee a sampling regime which ensured that adequate quantities of product were sampled and that the correct tests were carried out to ensure the production of quality product. She also maintained appropriate quality assurance records. The quality assurance testing procedures implemented by Anzpac during the 1999 production run were as follows (quoting from Ms Allister's affidavit):
(a) A quality assurance officer under my supervision conducted a physical inspection of one in every one hundred cartons prior to the cartons being labelled. This physical inspection was to ensure that the cartons were glued properly and were generally satisfactory in all respects; and(b) At least once every hour, the quality assurance inspectors conducted a visual inspection of the labelled cartons to check the positioning of the label. Once again, if labels were satisfactory, the cartons were placed back onto the labelling line and if there was any defect in the labels the carton was placed into a security waste bin located next to the labelling machine.
150 Ms Allister further said that to her knowledge:
... none of the cartons or labels designed for Project Puzzle could have been used or attached to cartons designed for and used in the Project Killer promotion because:(a) The cartons produced for Project Puzzle were printed with designs which had a pale blue background and the cartons manufactured for Project Killer were printed with a design which had a purple background, except for the promo pie cartons which had a red background. The quality assurance procedures designed by myself and implemented by the quality assurance inspectors would have detected such differences.
(b) The labels used for Project Killer were yellow, unlike the labels used for Project Puzzle, which were red. I was present at the manufacturing facility for the duration of the Project Killer promotion. At no stage did I see any red labels from the Project Puzzle promotion applied to cartons for use in Project Killer.
151 The references to "cartons" is to what I have described as "boxes". A number of the quality assurance inspectors who performed duties under the supervision of Ms Allister gave evidence that during the 1999 production run, they had not seen a red label from the 1998 competition either on a labelling machine or affixed to a box.
Seeding of major prizes
152 In April 1999 the respondent forwarded to Anzpac envelopes containing minor and major prize labels for the 1999 promotion together with instructions as to how these labels were to be "seeded". On the day that Anzpac received the major prize labels, Mr Raciborski took those labels home and personally affixed each label to a box. These were then stored in the accountant's safe at Anzpac until required. Similarly, the minor prize labels were affixed to unlabelled boxes by Mr Schwinidt and Mr Raciborski. These labelled boxes were also placed in the safe. Mr Schwinidt was responsible for seeding the minor prize labels each morning. He would remove the necessary number of boxes from the safe and insert them into cartons which were on pallets ready for despatch. The seeding itself is of no significance save that it gave both men further opportunities to observe the finished product prior to despatch. As I have already noted, both Mr Schwinidt and Mr Raciborski stated that in the performance of their duties, neither saw any 1998 labels in Anzpac's manufacturing area or being applied to 1999 boxes or on 1999 boxes.
Arthur Andersen audit
153 On 3 July 1999 Mr Timothy Carthy, a senior manager employed by Arthur Andersen, together with three of his staff attended at the Anzpac factory to inspect waste labels generated during the 1999 production run. Mr Carthy was given waste labels generated from a production run on that day and butt reels and waste labels from earlier runs. He later instructed a number of employees of Arthur Andersen to examine these labels to see if any could be found "which depicted a square on the monopoly board and did not have the golden arches logo depicted on it." Mr Carthy estimated that Arthur Andersen employees inspected approximately 20,000 labels in the inspection process. Each label "contained the McDonald's "golden arches" logo and a predominantly yellow base. Neither Mr Carthy nor any of the other Arthur Andersen employees who supplied affidavits for the purposes of this litigation was called for cross-examination.
Sub-Contractors
154 One final matter concerning Anzpac requires comment. It seems that in 1998, Anzpac used sub-contractors in connection with the manufacture of promotional packaging. This was not done in 1999. In cross-examination, Mr Schwinidt was asked about an apparent anomaly in the records concerning one sub-contractor which suggested that a pallet-load of packaging may have been missing (TS 1854-6). He said that the discrepancy had been resolved. In any event, there is no suggestion that the sub-contractor sent a pallet-load of 1998 packaging to Anzpac after the end of the 1998 production run.
CRITICISM OF PRINTING AND MANUFACTURING EVIDENCE
155 The first recurring criticism is that the respondent did not call, in effect, every employee involved in the printing and manufacturing process. It is said, for example, that some machine operators were not called. This criticism, along with some of the others, fails to take account of the case which the applicant has raised and which the respondent must answer. Given that the applicant has not sought to establish any particular pathway by which 1998 labels may have been distributed during the 1999 competition, the respondent has addressed every aspect of a lengthy and complex operation. It could never hope to exclude absolutely the possibility of 1998 labels being introduced into the 1999 competition. If one accepts that a claimant received a product bearing a 1998 label during the 1999 competition, then it is possible to formulate numerous theories as to how this may have happened. Some of them will be reasonably possible and others, barely so. The fact in issue on each claim is whether the claimant received the disputed label. That a claimant says that he or she did so does not prove that fact absolutely, any more than does the respondent's evidence prove absolutely that such an occurrence did not occur. It is a question of balance of probabilities.
156 The respondent has sought to demonstrate that numerous employees of these four companies, many of them in supervisory positions, had continuing opportunities to observe labels throughout the printing and manufacturing process and simply did not see any labels other than yellow labels. As to how many witnesses should be called to give such evidence, that is very much a matter of judgment. As far as I can recall, the applicant did not suggest to any of the witnesses who were cross-examined that they were dishonest in saying that they had not seen any 1998 labels. The applicant contented herself with asserting the bare possibility that 1998 labels may have been in one or other of the relevant factories at the appropriate time although the witnesses had not seen them or did not remember doing so. There is no direct evidence of 1998 labels in any of these factories at the relevant time, save for those retained by Pemara for archival purposes. The only evidence from which one could infer that such labels were in the factories during the 1999 production run is that of the claimants and a small number of supporting witnesses. That evidence, if accepted, would be a basis for an inference that prior to the receipt of the product in question by a particular claimant, the relevant label had been in the restaurant in question. However that inference would not, itself, definitively point to any of these four companies as being responsible for the introduction of the label into the distribution chain. In those circumstances, it would have been pointless to call every arguably relevant witness to disprove something which the applicant has not directly or necessarily alleged.
157 The second recurring criticism is closely associated with the first. It is that the evidence does not absolutely exclude the possibility of 1998 labels being in the factories. I have, to some extent, dealt with that submission already, but I should comment upon some specific aspects of it. It is said that a few minor irregularities have been detected in the company records concerning one or other promotion. As I pointed out in the course of the trial, these records were not kept for the purposes of litigation. They were kept to maintain the integrity and security of the competitions and as good business practice. The records in question were generally "tallies" of production and distribution rather than permanent accounting records. There is nothing surprising about the fact that in the course of operations in a busy factory, errors occur in the recording process.
158 Such an error, by itself, proves nothing about the transaction it purports to represent. The irregularity addressed in Ms Manning's cross-examination is a good example of this. I have dealt with it above. It concerned the use of a stock adjustment to "balance" stock records where the actual quantity of 1998 stock on hand did not coincide with the record. The record was plainly inaccurate because the cups were not there. The applicant suggests that the cups in question may have been in the factory, subsequently located and allowed to re-enter the distribution system in 1999, although there is no evidence of this. This argument and other arguments advanced by the applicant in the course of the trial are based upon the assumption that these companies are so badly run that stock can lie undetected in a factory for months and then be re-introduced into a customer's distribution system, deliberately or by accident. That is not the impression which I have formed of these companies, each of which appears to operate complex machinery and keep detailed records.
159 A third recurring theme in the criticism of this body of evidence is that the various employees of the four companies either had no reason to notice any difference in the colour of the labels being used in 1999 or perhaps didn't care. It is undoubtedly true that in most, if not all cases, no particular instruction was given to staff concerning the differences between the labels used in 1998 and those used in 1999. The differences were, however, very obvious. It would be impossible for there to be any extended use of the red labels in place of the yellow without those participating in the operation becoming aware of the fact. That may not exclude the possibility of the odd red label passing undetected, but it is difficult to see how such a "rogue" could have found its way into the system. It was not seriously suggested that this may have happened. As I have said, it was rather suggested that stamps from a 1998 roll or butt roll may have been used on 1999 packaging, or that 1998 packaging may have been retained and despatched in 1999.
160 Finally, there was much said about the calibration evidence. There can be no doubt that the labelling machines had to be recalibrated to take account of the differences between the 1998 and 1999 rolls of labels. The applicant suggested that some unidentified person or persons in one or more of the packaging factories may have changed the calibrations in 1999 to allow the use of 1998 labels. This assumes, contrary to most of the evidence, that persons who have generally not been identified were capable of doing so. Even if there were such people, there is simply no evidence that this unlikely event occurred, just as there is no evidence that there were any 1998 rolls available for use in any event.
161 All of this evidence must also be seen in light of the fact that there is no evidence from any restaurant employee (many of whom have given evidence) that any 1998 material (packaging or labels) was received from Walkers during 1999. Although final determination of the issue must await a detailed consideration of the rest of the evidence, I am very much inclined to the view that no such material was delivered to restaurants and that nothing of the kind was supplied by the packaging manufacturers to Walkers.
DISTRIBUTION EVIDENCE - WALKERS
162 Walkers distributes food and packaging supplies to the respondent's restaurants throughout Australia. It distributed all of the packaging material for the 1998 and 1999 competitions.
Applicant's theories
163 The applicant submits that "... none of the evidence of the FJ Walker witnesses is capable of ruling out the possibility that some 1998 packaging was retained and distributed in 1999. FJ Walker record-keeping anomalies support this possibility." There is also the possibility that Walkers received 1998 packaging or 1999 packaging with 1998 labels from one of the packaging manufacturers and passed it to a restaurant or restaurants. As I have said, no restaurant employee has suggested that any restaurant received such packaging. In the usual course of things, Walkers dealt only with sealed cartons of packaging. Each carton bore markings identifying its contents. Cartons were marked as containing generic or promotional packaging. In the 1998 promotion, cartons were marked with the word "Puzzle". In 1999, they bore the word "Game". The applicant suggests that the differences between the cartons for each year were such that they could be easily confused. It is said that one Walkers employee who gave evidence was not aware of the distinction. It may be that the cartons could be easily confused, but that does not prove that any such confusion actually occurred.
Respondent's Affidavit Evidence
164 The following table lists those persons in the employ of Walkers during the 1998 and/or 1999 competitions who swore affidavits for the purposes of the litigation. A number were cross-examined.
The Walkers operation
165 Walkers has seven distribution centres throughout Australia, namely:
* Blacktown, New South Wales;
* Raymond Terrace, New South Wales;
* Mulgrave, Victoria;
* Murarrie, Queensland;
* Gepps Cross, South Australia;
* Canning Vale, Western Australia; and
* Mariyong, New South Wales.
166 All restaurants are supplied from one or other of the distribution centres. Mariyong does not generally supply restaurants. It is mainly concerned with imported goods. However, during the 1998 and 1999 promotions it supplied cups to the Perth distribution centre. There was some perceived cost benefit in so doing.
Security Protocol
167 Mr Ian Walcott, Walkers national promotions manager, was involved in the drafting of a security protocol which offered guidelines for use at each distribution centre during the 1998 competition. Local variations were permitted. The protocol described the packaging to which it related and the procedures to be adopted in respect of its physical receipt, storage, sale and delivery as well as the record-keeping associated with these tasks. A similar protocol was adopted in 1999.
168 Mr Simon Lovell, supply and promotions manager for Walkers, described the security procedures and the manner in which they were implemented throughout the Walkers operation. The movement of promotional stock was monitored, using a computer inventory system maintained by Walkers at a national level. It was updated on a daily basis from data entered at each of the distribution centres. The inventory tracking system recorded the receipt of product from suppliers and its sale and despatch to restaurants. On the basis of this data it was possible to determine the amount of each type of product or packaging remaining on hand within the distribution centres at any one time.
169 In order to ensure the accuracy of the inventory system, Walkers also implemented, at each of the distribution centres, what was described internally as a "cycle count". A cycle count was essentially an audit of stock levels in a distribution centre at a given point in time. It was typically undertaken by staff not normally engaged in physical warehousing activities. Where a cycle count revealed a discrepancy between computer records and stock actually held within a distribution centre, adjustments were made within the inventory tracking system to correct the error.
Run-out of 1998 packaging
170 I will consider the evidence pertaining to the position at each of the distribution centres shortly. Before doing so, it is appropriate that I again refer to the evidence of Mr Lovell. He said:
All 1998 McMatch and Win packaging was used up during the course of the 1998 promotion. I am able to reach this conclusion because Exhibit "SL6" [exhibit 6 to the affidavit of Simon Lovell] shows the actual days the McMatch `n' Win packaging for 1998 ran out. As appears from the table, all promotional material from 1998 for each of the distribution centres was used up in full by the end of August 1998...This document shows the progressive runout of all 1998 McMatch and Win promotional product.
171 It is not necessary to make further reference to Exhibit SL6, save to note that it discloses that by the end of August 1998 no promotional product remained in any distribution centre.
Leftover promotional packaging
172 Mr Lovell said that he had been asked, when preparing his affidavit, to consider the possibility that the inventory files for one or more of the distribution centres were wrong and whether it was possible that any 1998 packaging at Walkers could have found its way into the packaging distributed for the purposes of the 1999 competition. His response was:
In my opinion there is no possibility of that occurrence for the following reasons:A) I believe that the 1998 inventory files for any distribution centre as adjusted by the cycle counts were correct.
B) The storage of promotional product in a `safe area' makes it more visible and exposed to observation than product would ordinarily be. I do not believe promotional packaging could have been left in a safe area without being observed for any extended period. Regular checks of promotional products disclosed no outstanding stocks of promotional product and therefore verified information contained on the inventory files for each distribution centre.
C) The practice in relation to disposal as recorded in the disposal status register was available to FJ Walker and there was no reason for that practice not to have been implemented in relation to any leftover stock had there been any.
D) The regular checks of promotional product...would have picked up any remaining product.
E) The formal cycle count process would have picked up the remaining product as outlined above.
F) The inventory (plus all products) of the distribution centres is turned over approximately 70 times a year. Accordingly the distribution centres do not warehouse product for any length of time.
173 Mr Lovell was extensively cross-examined by counsel for the applicant as to a number of "irregularities" in the documents contained within Exhibit SL6 and other records. This cross-examination failed to prove anything other than that it is inevitable, in a large organisation, that mistakes will occasionally be made. However the cross-examination also disclosed that the systems and procedures implemented by Walkers were such that it was highly improbable that any major error would remain undetected for any significant period of time.
Destruction of packaging
174 From time to time, Walkers seeks permission from the respondent to destroy surplus stock. A disposal status register provides a list of all such requests made by Walkers. Exhibit SL9 to Mr Lovell's affidavit is the disposal status register for the period from May 1998 to August 1999. The only item listed there is surplus folded tray mats. Authority for disposal of those items was requested on 27 August 1998 and obtained on 21 September 1998. Following the 1998 competition, there was no formal request for destruction of surplus promotional packaging.
Receipt of promotional packaging
175 Mr Lovell said that "Promotional product was only received into FJ Walker and distributed by FJ Walker in sealed cartons containing set numbers of a particular product." It was not the practice to open cartons or to inspect the contents. A carton would be opened only if it was damaged, in which case it would be unpacked and repacked into an undamaged carton. This occurred from time to time. In accordance with the security protocol for both the 1998 and 1999 promotions, upon receipt of a pallet of promotional stock at a distribution centre, a records clerk would write the pallet number or numbers on a record sheet. The cartons were then examined by both the records clerk and the tally clerk to check for damage. In smaller distribution centres one person may have been both records clerk and tally clerk. If damaged cartons were detected, either Mr Lovell or Mr Walcott was advised. Mr Mark Thompson of Peseco (McDonald's procurement company) was then advised. Where cartons were received undamaged, the tally clerk would enter the information from the record sheet into the computerised inventory counting system.
Storage
176 Most distribution centres stored promotional packaging in designated safe areas, separately from generic material. Regular physical checks of promotional product were undertaken to ensure that stock levels corresponded with the stock numbers on the inventory system. Each distribution centre would usually hold less than one week's stock. Mr Lovell said that from his own observations at Blacktown, promotional product was not held for longer than three to five days during either competition.
Orders
177 Prior to the commencement of both the 1998 and 1999 competitions, Walkers received an allocation list from the respondent, directing it to send specific quantities of the various promotional products to each restaurant across Australia. Approximately two to nine days prior to the start of each promotion, the orders were delivered. Walkers subsequently received orders for replenishment from individual restaurants. Most of these orders were received electronically, but some were received by telephone or facsimile. Upon receipt of an order, it was entered into the inventory system which generated the following:
(a) Picking labels:- A picking label was generated for each carton ordered, containing restaurant details, product description, product WRIN code, total number of cartons ordered (of each item) and the picking route for each order; and
(b) Control sheets:- These included, for each ordering restaurant, the name of the restaurant, the day of delivery, a list of the product ordered, and the WRIN code for each item of product ordered.
Picking
178 In general, at each distribution centre, there was a person on each shift designated to "pick" the promotional products which had been ordered. This person was usually not responsible for picking non-promotional products, although in some of the smaller distribution centres, the situation may have been otherwise. In those cases, promotional products were nonetheless picked separately from non-promotional products. The picker would take the labels generated from the computer system and attach them to appropriate cartons of promotional product. Thus, where a picker was required to send three cartons of promotional cups, three labels would be generated (each label indicating that it was one of three). In the event that a picker could not find a particular carton of product, he or she would return the label to the customer service centre at the relevant distribution centre. That item of product would be removed from the order. Upon allocating a particular carton to an order, the picker would record the relevant carton number on the control sheet previously mentioned. A copy or duplicate of this sheet was then provided to the truck driver who was delivering the order. The original was held within each distribution centre for matching with the signed control sheet when it was returned after delivery. The various cartons were assembled with any other material to be despatched to a particular restaurant and loaded on to a truck for despatch or placed in a designated staging area to await loading.
Restaurant deliveries
179 When delivering promotional product to a restaurant, the truck driver took a copy of the control sheet and an invoice. Upon delivery, the manager or other responsible restaurant employee would check the WRIN code and individual carton number on each of the cartons against the control sheet and the invoice. He or she would then sign to acknowledge receipt on both the invoice and the control sheet. Any discrepancies in product delivered to a restaurant were noted on the control sheet. The control sheet and the invoice were returned by the truck driver to the distribution centre. Most of these records have been destroyed by Walkers in the normal course of business.
Cycle Count
180 In addition to the tracking and recording systems which I have discussed above, Walkers also conducted a "cycle count" as a safety mechanism to ensure the accuracy of its inventory system. I have previously discussed the process. It essentially involved random counting and cross-checking of a group of products selected for the purpose by staff not normally engaged in distribution or picking activities. Any variances between the count and inventory records were investigated. Where necessary, adjustments were made and recorded in the inventory tracking system.
Distribution Centre Evidence
181 Given that the Walkers distribution operations are physically decentralised it is necessary that I consider separately the evidence concerning the possible presence in 1999 of 1998 promotional packaging within each distribution centre.
Blacktown
182 Mr Gregory Rich was the manager of the Blacktown distribution centre during the 1998 competition. He said that the 1998 promotional packaging ran out on or about 20 August 1998. When asked for the basis of his belief, he said:
Cycle counts have been done; that's been reported to me by...my inventory controller at the time,... that was confirmed by Mr Andrew Walcott..., and I also do a number of - when I was the Distribution Centre manager - I would regularly walk through the promotion warehouse storage area, and one of the things I would look for would be any...obsolete or slow moving materials and I'd never seen any of those products out there.
183 He also said:
The promotional store often gets fairly congested for space...so if it was fairly full I would often...look down there and say, `well, is there anything in here that perhaps is an obsolete item that we wait for a McDonald's authority to write off?' In which case we maybe go back to Andrew Walcott or Simon Lovell and say, you know, `can we write this off?' and then it can be disposed of and we can reuse that space. So my main intent would typically be...utilisation of that storage space.
184 He was asked whether it was "... quite likely that left over promotional stock from an old promotion would be shoved up the back out of the road somewhere?" Mr Rich answered "No, that is certainly not the case. No." Mr Rich's evidence that 1998 stock was exhausted on 20 August 1998 may, to some extent, have been based on reports of cycle counts, but he seems also to have had relevant personal knowledge based upon subsequent inspections.
Raymond Terrace
185 Mr Norman Hamm was appointed acting manager for Raymond Terrace in April 1998. He was familiar with all aspects of the distribution centre's involvement in the 1998 competition. The security protocol for the 1998 competition was followed during his period as acting manager. There was no designated secure area for the storage of promotional product. However it was stored separately from generic material in an area that was highly visible and isolated. Daily physical checks of the promotional area were conducted by Mr Christopher Van Ling under Mr Hamm's supervision. Mr Van Ling provided an affidavit and was not cross examined. He was responsible, during the 1998 promotion, for performing cycle counts for promotional products. He counted manually every carton of product and compared the resulting figures with those in the computer system. To Mr Van Ling's recollection no significant variance was found in any of the cycle counts. Mr Van Ling also said:
In September 1998 I conducted a physical inspection of the Raymond Terrace distribution centre. I did not see any leftover stock from the 1998 promotion.
186 Mr Hamm gave similar evidence concerning the cycle count process, namely that "To the best of my knowledge and belief there were no significant discrepancies in relation to stock for the 1998 promotion." He left Raymond Terrace prior to the end of the 1998 promotion and was replaced by Mr David Kelly. Mr Kelly said:
In September 1998, after the conclusion of the 1998 McMatch & Win promotion conducted by McDonald's...I, together with Christopher Van Ling, the inventory controller, conducted a physical audit to see whether there was any remaining promotional packaging from the 1998 promotion. We did this by walking around the whole distribution centre and examining cartons. No 1998 promotional product was located.
187 In his oral evidence Mr Kelly said that this final check was essentially a cycle count and that the computer indicated that the Raymond Terrace facility was holding no stocks of promotional product. The physical audit was conducted to ensure that this was correct.
Mulgrave
188 Mr Peter O'Shannessy was the manager of the Mulgrave distribution centre and was present at Mulgrave during the whole of the 1998 and 1999 competitions. From his observations the relevant security protocols were followed there during both promotions. In 1998 the promotional packaging was stored in a separate and discrete part of the Mulgrave centre. It was separated from the area where generic product was stored although it was not able to be locked. Promotional packaging was stored in such a way that it could only be moved using a forklift.
189 In accordance with the requirements of the security protocol there was a formal cycle count process. In addition to this, Mr O'Shannessy said that Mr Peter Dixon conducted, on his instruction, a physical inspection of all stock on a daily basis and that any variances or discrepancies were investigated. To the best of Mr O'Shannessy's memory, all 1998 packaging had been distributed by 20 August 1998. As far as he was aware no promotional product was returned to Mulgrave after the conclusion of the 1998 promotion. Had any product been returned or left over, it would have been picked up in the cycle count, and a request would have been made to McDonald's to write off that particular product. No such request was made. Mr O'Shannessy was not required for cross-examination. Mr Peter Dixon was the inventory officer at Mulgrave during the 1999 competition. Prior to the commencement of the competition he performed a physical inspection of the distribution centre and did not see any 1998 promotional material. During the course of the 1999 promotion he performed a daily physical check of the 1999 promotional stock and a fortnightly cycle count. Mr Dixon was not called for cross-examination. There appears to be some slight discrepancy in the evidence of Mr O'Shannessy and Mr Dixon. Either Mr O'Shannessy was mistaken as to the year in which he instructed Mr Dixon to perform daily counts, or Mr Dixon did not disclose in his affidavit that he performed similar duties in 1998. In any event the point is not of great significance.
Murrarie
190 Mr Phillip Carpenter is the manager of the Queensland distribution centre located at Murarrie. He was primarily responsible for the 1998 and 1999 promotions. He said that the security protocol for the 1998 competition was generally followed throughout 1998, although there were some variations to take account of local circumstances. Those variations are of no significance for present purposes.
191 Mr Carpenter said that at Murarrie there were:
... daily counts of promotional product and physical inspections of promotional product undertaken by staff under my supervision. Daily counts were conducted on each product by counting the stock on hand at the end of each day's pick and comparing that with the end of day computer balance.
192 He also said that a cycle count process, as required by the security protocol, was conducted on a regular basis in addition to the daily checks and that:
No packaging from the 1998 promotion was held in the Queensland distribution centre after the conclusion of the 1998 promotion. Every three to four months the Promotions Co-ordinator for the Queensland Distribution Centre...and one of the two leading hands go through all the stock and see if there is any surplus left in the inventory. If there is any surplus inventory McDonald's are then told so that a refund may then be obtained for that stock. No surplus promotional product was found.
193 The only promotional item returned to the Queensland distribution centre from a restaurant following the conclusion of the 1998 competition was tray mats. Approval was received from the respondent to dispose of this stock. Mr Carpenter also said that:
To the best of my knowledge and belief during the course of the 1999 promotion, FJ Walker did not distribute any cartons containing 1998 promotional product.
Mr Carpenter was not called for cross examination.
Gepps Cross
194 Mr Franklin Brown was the manager of the South Australian distribution centre at Gepps Cross for the 1998 and 1999 competitions. According to Mr Brown:
The security protocol was generally followed by the South Australian Distribution Centre although there were some variations because the South Australian Distribution Centre is somewhat different to those in Melbourne and Sydney".
To the extent that there were variations, they are not presently relevant.
195 Mr Brown said that promotional packaging was stored with generic packaging and that there were daily stock counts of every item of promotional packaging. A formal cycle count process was undertaken on a weekly basis in addition to the daily count. To Mr Brown's knowledge there were no significant discrepancies discovered during the cycle count process for the 1998 competition.
196 He also said that:
Around 14 August 1998 we ran out of all 1998 promotional stock. If there was any stock left over it would have been picked up in one of the formal stocktakes undertaken every fortnight by the inventory controller and it never was. The formal stocktakes consist of a physical inspection of all of the cartons of product held in the warehouse.
197 No 1998 promotional packaging was returned. Mr Brown did not see any 1998 packaging at Gepps Cross during the course of the 1999 promotion and to the best of his knowledge, no 1998 packaging was distributed to restaurants from Gepps Cross during 1999.
198 Mr Peter Mangelsdorf is the inventory controller at Gepps Cross. He was involved in both the 1998 and 1999 competitions. He said that:
During the course of the 1998 promotion I performed a daily physical check of the promotional product located in the South Australian Distribution Centre to check whether the amount of the promotional product located at the Distribution Centre was equal to the amount of stock recorded in the computer inventory system. Every day I walked around the distribution centre where the 1998 promotional product was stored and I manually counted the number of cartons present in the Distribution Centre in respect of each product. I identified each product by reference to the worldwide raw item number [`WRIN']. I then checked to see whether the number of cartons counted by me accorded with the number of cartons appearing in the computer inventory system for that particular product. To the best of my recollection and belief, there were no significant discrepancies during the course of the 1998 Promotion.
199 Mr Mangelsdorf conducted a similar inspection prior to the commencement of the 1999 competition and did not see any 1998 stock at that time. In cross-examination, Mr Mangelsdorf said that in performing his physical checks he took account of "the WRIN number, the colour of the box, what was written on it."
Canning Vale
200 Mr Norman Robertson was the manager at Canning Vale during both the 1998 and 1999 competitions. The security protocol was generally followed. He said that:
I personally counted all the Promotional Packaging in the Distribution Centre every day during the course of the 1998 promotion. I checked that the amount of promotional product counted was the same as the figure in the inventory records. To the best of my knowledge and belief there was no significant variance during the 1998 Promotion. Any discrepancies were investigated by myself.
201 A cycle count process was also conducted daily, although it is not clear from the evidence whether this coincided with the daily counting process to which Mr Robertson referred in his affidavit. According to Mr Robertson:
No 1998 promotional packaging [was] held in the Western Australia Distribution Centre after the 1998 promotion ended.After the conclusion of the 1998 promotion, no promotional packaging was returned by any of the McDonald shops in Western Australia.
I know this because during the stocktake which is undertaken every Thursday by myself, I checked the warehouse to see every item of stock physically held in there. I am able to state that at no time after the 1998 Promotion ended did I see any McDonald's 1998 promotional food and packaging items left in the Distribution Centre.
202 In cross-examination Mr Robertson said that he was confident that there were no variations between Walkers' inventory records for the Western Australian distribution centre and the physical stock count on the distribution floor. When asked whether "it could well have been the case that there was 1998 stock left at the end of the 1998 promotion", Mr Robertson answered "Impossible".
203 As far as I can see, there was no evidence from Mariyong. However as the only West Australian claimant (Mr Maynard) said that he received 1999 packaging, that is of no consequence.
Evidence concerning the 1999 promotion
204 There was also a considerable body of evidence from various employees concerning the 1999 competition, including evidence of internal accounting records and of the implementation, at each of the distribution centres, of the 1999 security protocol. It is not necessary that I address it.
APPLICANT'S CRITICISM OF DISTRIBUTION EVIDENCE
205 The applicant submitted that the Walkers evidence did not absolutely exclude the possibility that some 1998 packaging was retained and distributed in 1999. It was suggested that "record-keeping anomalies support this possibility." It may be that the evidence is not sufficient to exclude absolutely such a possibility, however the evidence suggests that it is unlikely to have occurred. Numerous aspects of the evidence are relevant to that conclusion. Firstly, the cartons used to contain the packaging were different in each year. Secondly there is no evidence of any 1998 "blue" packaging being received in a restaurant in 1999, nor of any stock being returned because it was 1998 stock. Of the claimants and their supporting witnesses, very few claim to have seen blue packaging. Some witnesses were a little equivocal about whether they had received 1999 packaging. As I have said, had a carton of 1998 stock been used in a restaurant, it would have lasted for a day or more. One might reasonably expect that one or other of the witnesses from that restaurant would have noticed it or heard about it.
206 The respondent points out that Walkers had a vested interest in disposing of excess stock as they would receive refunds from the respondent for it. (See affidavit of Phillip Carpenter.) There is also the very considerable lapse of time between the end of the 1998 competition and the beginning of the 1999 competition. It seems that at least in some distribution centres, there was a premium on space, particularly the space used for promotional items. It is therefore unlikely that superseded material would have been retained unnecessarily.
207 Walkers had an additional check in the case of Anzpac products. For cartons of Anzpac packaging, different code numbers were used in 1999 from those used in 1998. These numbers are different from the WRIN codes. The numbers used consisted of seven digits commencing with "1" for large fries, "2" for medium fries and "3" for apple pies. The code numbers of cartons identified for delivery to restaurants during the 1999 competition were recorded. All but five of the numbers so recorded were 1999 code numbers. Of those five, the numbers which were recorded were clearly erroneous, but none of them appears to have been a 1998 number. This suggests that the cartons supplied to restaurants by Walkers in 1999 were 1999 cartons.
208 As to the possibility of Walkers receiving a carton or cartons of 1998 stock from a manufacturer in 1999, such a possibility cannot be absolutely excluded. However the evidence from the packaging manufacturers suggests that is unlikely to have occurred. Again, there is no suggestion from restaurant staff that any restaurant received such a carton. There is a good chance that any such carton would have been detected in the course of handling by Walkers. Of course, Walkers witnesses cannot deal with the possibility that a 1999 carton was partly or entirely filled with 1998 packaging or 1999 packaging with 1998 labels. The respondent must rely on the packaging evidence and restaurant evidence to exclude those possibilities.
STATISTICAL EVIDENCE
209 The present controversy arose because properties used as control stamps in 1999 had been used as non-control stamps in 1998, the relevant 1998 stamps having been printed in millions. Thus, had a carton of packaging containing 1998 game stamps been distributed in 1999, a large number of customers at the restaurant in question would have received 1998 game stamps relating to control properties for the 1999 competition. One might reasonably expect that a considerable number of such customers would have presented those stamps, together with 1999 non-control stamps, to make prize claims. Obviously, not all persons receiving such stamps would participate. The respondent called statistical evidence from Professor Donald McNeil. It submits that this evidence demonstrates that it is improbable that cartons of 1998 packaging were distributed from restaurants in 1999. The respondent did not submit that this evidence was wholly determinative of any claim, but that it was further evidence consistent with, and supplementary to, the respondent's overall case.
210 Professor McNeil was asked by the respondent to prepare a report based upon certain assumptions, including:
* that a carton of 1998 packaging (containing either 1000, 2000 or 3000 game stamps) was distributed from a restaurant in 1999;
* that a carton of 1998 packaging contained a given proportion of 1998 non-control stamps and control stamps, reflecting the probable distribution of the various stamps printed in 1998;
* that the actual redemption rate (or participation rate) experienced in 1999 would apply to participants possessing 1998 stamps; and
* that a claimant would make his or her claim at the restaurant at which he or she received the game stamps in question.
211 The redemption rate was the ratio of valid claims made to total prizes capable of being won. In 1999, 109 prizes were claimed from 401 available prizes - a redemption rate of 27.2 per cent. Thus Professor McNeil was asked to assume that the percentage of persons who possessed, in 1999, `winning' 1998 game stamps (ie a 1998 game stamp for a property which was a control property in 1999) and made prize claims in 1999 would be the same as the percentage of persons who possessed 1999 control stamps (ie control stamps issued for the purposes of the 1999 competition) and made prize claims. The assumption that a claim would be made at the restaurant of purchase may be doubted, having regard to the evidence of the claimants. However I would otherwise have thought it to be a reasonable assumption based on knowledge of human nature and geography.
212 Professor McNeil concluded, using the redemption experience for prizes from the 1999 competition, that a carton of one thousand 1998 game stamps could be expected to generate eighty-three prize claims using a 1998 stamp. Similarly, a carton of 2000 stamps could be expected to generate 165 prize claims, whilst a carton of 3000 stamps would be expected to yield 248 prize claims. On this basis, Professor McNeil calculated, assuming a lower redemption rate than actually occurred in 1999 (ie 20 percent), that it was statistically improbable that a carton containing 1000 game stamps from 1998 would give rise to fewer than forty-five prize claims at the restaurant from which it had been distributed. There was a 0.19 per cent chance that this could occur. He performed similar calculations, assuming a carton containing 2000 or 3000 game stamps and higher redemption rates, all of which variations produced results less favourable from the applicant's point of view. The evidence discloses that of the seventy-four restaurants identified by the claimants as possible sources of 1998 game stamps, none issued more than thirty-nine redemption envelopes. Most issued significantly fewer than this number. Without criticising Professor McNeil's conclusions or his method, it may be a little dangerous to place too much weight upon such evidence. It is based upon certain assumptions upon which I have already commented.
CONDITION OF DISPUTED GAME STAMPS
213 Many of the disputed 1998 game stamps show signs of severe wear and tear, particularly when compared to 1999 game stamps used in the same claims. The respondent submits that whilst it is a matter of degree, "it is possible to identify many claims where there is a very strong and indicative difference between the condition of the [1998] stamp and the condition of the other stamps." The respondent led evidence from Mr Paul Westwood, a forensic document examiner, who was asked by the respondent to examine the physical deterioration of those game stamps submitted as part of disputed prize claims. Mr Westwood examined each of the disputed game stamps microscopically. He graded the stamps as being heavily soiled, moderately soiled, slightly soiled or not soiled. Many of the disputed 1998 game stamps were, on Mr Westwood's observation, heavily or moderately soiled. A considerably lower proportion of the accompanying 1999 stamps was so classified. The respondent submits that such significant physical deterioration is relevant when considering the evidence of the claimants as to provenance of the stamps.
214 The condition of some of the disputed 1998 stamps is of some relevance in these proceedings. Plainly, many of them are heavily soiled. Some claimants have offered explanations for this. I do not discount the possibility that stamps from a 1998 label which were not "peeled" until 1999 may show deterioration, but it is more likely that the deterioration has occurred since peeling. It would be unfair to place too much weight on this evidence in the absence of a detailed analysis of the cause of the deterioration in each case.
RESTAURANT EVIDENCE
215 I turn now to consider the evidence from people working in relevant restaurants. With a small number of exceptions, I will deal with each restaurant individually in alphabetical order. The exceptions include a small number of restaurants which are of, at best, marginal relevance. I will deal with them at the end of this part of the judgment. An employee described as having worked for "McDonald's" may have worked for the respondent or for a licensee or for both, but at different times. Where the applicant did not cross-examine a witness, the content of exhibit 368 should be kept in mind. There is a large amount of repetition in this evidence. I may not be consistent in dealing with such repetition. I have tried to ensure that summaries are not misleading and that important variations or omissions are included. Some witnesses used the terms "labels" and "game stamps" interchangeably. Other terms were sometimes used. I will try to strike a balance between facilitating ease of understanding by using the terminology adopted elsewhere in the judgment and maintaining accuracy in my summaries. Many of the witnesses described themselves as trainee managers, second assistant managers or first assistant managers. Each restaurant has a manager. Sometimes he or she is supervised by another person who supervises a group of restaurants. Each manager supervises a number of assistant managers, each of whom may supervise a shift in a restaurant and may also have other duties such as ordering or training. The arrangements vary from restaurant to restaurant.
216 Many of the witnesses gave evidence concerning their involvement in stocktaking, ordering or receiving stock deliveries. This was intended to demonstrate the bases of their evidence that no 1998 promotional packaging remained in the restaurant after the 1998 promotion or during the 1999 promotion. References to "promotional packaging" are to Monopoly promotional packaging save where the context indicates otherwise. On the subject of stocktaking, much time was spent in cross-examining witnesses concerning stock records which disclosed stocks of promotional packaging in particular restaurants after the end of August 1998. In some cases, this was inconsistent with evidence from witnesses to the effect that no promotional stock remained after the end of the 1998 competition or the run-out period following it. The witnesses generally considered that their recollections were likely to be more reliable than the stock records. Clearly, many restaurants do not distinguish between promotional packaging and generic packaging. There is no price difference, and Walkers routinely delivers whichever is appropriate. In some restaurants which notionally distinguish between generic and promotional packaging for stocktaking purposes, it is still quite common for staff to treat these items as being interchangeable. This can result in generic stock being counted as promotional stock and vice versa.
217 A further complication arises from the methods used for stocktaking in the various restaurants. In some restaurants, complete stocktakes are done by one person or group of persons. In others, stocktake figures may be generated by different persons checking different stock areas. Although most stock is held in stock rooms, substantial amounts may be held closer to points of service. Some restaurants have more than one storage area. Where two or more people are involved in stocktaking, it is possible that they will adopt different practices in the ways in which they treat promotional packaging. Thus one might treat promotional packaging separately from generic packaging whilst another might treat generic and promotional packaging as being the same item. Such variations may occur in the course of one stocktake.
218 The problem is accentuated by the use of hand-held computers for stocktaking in some restaurants. This equipment may be programmed so that items appear in a pre-determined order, reflecting the pathway which the stocktaker should follow in performing the stocktake. The computer is programmed to seek input as to stock of a particular type. The stocktaker may respond by entering the number of cartons of generic stock fitting that description or the number of cartons of promotional stock. Alternatively, he or she may simply total both items. Different approaches may be taken by different stocktakers or by the same stocktaker in different areas of the restaurant. It seems that some stocktakers did not concern themselves with WRIN codes. In the end I was left with the firm impression that stocktake figures were unlikely to distinguish reliably between stock levels of promotional and generic packaging. The most that can be said with any certainty is that the total of any particular type of packaging (eg large cups or large fry boxes) would probably represent the total of such items in the restaurant at the relevant time, but any apportionment of the figure as between promotional and generic packaging might well be incorrect. Unfortunately, much time was spent on this issue. This is another example of business records being designed for a purpose other than litigation. Lawyers do not readily accept this situation.
219 The question of inter-restaurant transfers of packaging stock was canvassed with many of the restaurant witnesses. The applicant, in effect, suggested that during the 1999 competition, 1998 stock could have been transferred into a relevant restaurant from another restaurant. Thus, even if the evidence demonstrates that there was no 1998 packaging at a relevant restaurant after the 1998 competition and that Walkers had not delivered any such packaging in 1999, it is still possible for such packaging to have been distributed from the restaurant in 1999. In theory, transfers should be recorded in the stock records of both the transferring and receiving restaurants. Not surprisingly, the evidence suggests occasional failures in this regard.
220 Nevertheless, many restaurants recorded transfers during the 1999 competition, a few of which were of relevant packaging, that is of packaging which, if issued for the 1998 competition, could have borne a disputed stamp. Most restaurant witnesses thought that any attempted transfer of 1998 stock would have been detected. This seems likely as such transfers were usually required because a restaurant was short of promotional material. The supply of something which was plainly different from that which had been sought would surely have attracted attention. However some witnesses accepted that they might miss an attempt to transfer old stock. Most, but not all transfers were of entire cartons. In the case of a transfer of sleeves of cups or of a part-used carton, the stock would be visible, and any irregularity would probably be discovered. As I have previously observed, a complete carton of 1998 stock could hardly have been distributed in a restaurant during the 1999 competition without it coming to the attention of those working there.
221 The cherry and apple pie boxes are in a different category. They were not promotional products in 1998. As there were no 1998 promotional pie boxes, they cannot have been retained in restaurants. If a claimant received a 1998 stamp with a pie box, it must have been wrongly affixed to a 1999 box by the manufacturer or supplied from a roll of spare labels.
222 A recurring theme in the cross-examination was the suggestion that restaurants may have deliberately retained 1998 promotional stock because it was expected that there would be a similar competition in 1999. The applicant's theory was that there would be some financial advantage in doing so. Every witness to whom the proposition was put denied it. Restaurants had adequate opportunity to run-out excess stock after the 1998 competition. The cost of a carton of packaging was, in any event, very small. There is a widely-held view that to carry surplus stock is uneconomical. Many restaurants lacked adequate storage space. Further, even if some owners or managers knew of the proposal to run a Monopoly competition in 1999 at a time when their restaurants still held 1998 stock, it seems unlikely that they would have inferred that they would have been able to use it in that competition. The possibility of changes in "get-up" and security provisions would have been obvious. The point is without merit.
223 A number of restaurants had full field inspections between the 1998 and 1999 competitions. Full field inspections are important to licensees because they are used as a basis for decisions by the respondent as to whether or not it will allow an operator to extend his/her operation. Further, an unsatisfactory report may imperil the relationship between the respondent and the licensee. The process involves at least two inspections. There is one announced inspection during which the inspector draws to the licensee's attention any shortcomings found in the restaurant. The licensee then has an opportunity to take remedial action before a second inspection, which is unannounced. In those restaurants which, according to the evidence, underwent full field inspections between the 1998 and 1999 competitions, no 1998 packaging was discovered. This re-inforces the evidence from restaurant employees that there was no such stock in the restaurants in question.
224 A great deal of time was taken up in suggesting to witnesses that they might not now be able to recall the colour of the packaging in 1998 or in 1999 or the colour of the stamps in each year. Most were able to describe the packaging and stamp colour in 1999. Fewer were able accurately to do so for 1998. That is hardly surprising. However all were aware that there had been a difference in packaging. Those who could not remember details of it were nonetheless sure that they had seen no variation from the norm in the course of the 1999 competition.
225 It would be surprising if a staff member who had worked with a particular product on a continuous basis over days or weeks did not notice a significant change in the colour or design of the product. I do not mean that if one cup, bearing a red, rather than yellow stamp had somehow found its way into a storage container, it would necessarily be detected by the staff member who provided it to a customer. However if the cup were light blue rather than purple, it would scream out for attention. If restaurant staff had become accustomed to purple packaging and then, for a day or more, were using only light-blue packaging, it would be extraordinary if they did not appreciate the change and discuss it amongst themselves.
226 I have previously referred to the fact that although the packaging in 1998 was distinctively different from that used in 1999, the cartons in which it was supplied to restaurants had the appearance of ordinary cardboard cartons, although the markings on them distinguished between generic stock and promotional stock and between 1998 promotional stock and 1999 promotional stock. Further, slips were attached to the cartons identifying their delivery dates. These slips were used, according to the evidence from many witnesses. for stock rotation. They would also presumably have been used during full field inspections. Few witnesses were able to describe the marks on the cartons which distinguished between 1998 and 1999 promotional stock. That does not mean that they would have been unable to distinguish between such cartons at the relevant time. Some of the witnesses said that they could have done so. The applicant's case was, in effect, that restaurant employees performed routine tasks with little interest in what they were doing. Thus they would not have noticed any changes in the product which they were using, particularly if the changes were minimal. However human experience suggests that where an operator is very familiar with particular aspects of his or her operation, even a minor change may be relatively easily identified simply because it offers such a stark departure from the routine. A number of senior staff said that they thought that any noticeable change in the product would have been brought to their attention by crew members. I have the impression that the average employee is generally quite young and enthusiastic.
227 Another point upon which some time was spent was crew training. As previously pointed out, the respondent had suggested to restaurants that there be crew meetings prior to the 1999 promotion. A proposed agenda was provided. Some restaurants followed this advice, and some did not. The applicant suggested that there ought to have been specific training designed to ensure that employees were aware of the difference between 1998 and 1999 packaging and game stamps. However the respondent had no reason to believe that there would be any 1998 packaging in the restaurants. It is only with the benefit of hindsight that it can be suggested that there should have been such training. In any event, it must quickly have been apparent to all that the promotion had a particular livery. The various posters appear to have been designed to reflect the same livery. As more than one witness pointed out, it would also be very curious if, for example, a cup did not match a fry box.
228 On or about 23 or 24 June, Ms Wallbridge drew to the attention of all restaurants the problems being experienced with the presentation of 1998 stamps. Whatever the position may have been prior to that date, it seems likely that thereafter there would have been increased and increasing awareness of the problem. It is difficult to believe that any stamp other than a yellow stamp would have passed without notice after that time. Following the commencement of media coverage of the problem at the end of June or in early July, it is even less likely that a red stamp would have escaped the attention of staff members.
229 Another recurring theme in the cross-examination of restaurant witnesses was the suggestion that as the "AFL/Coke" promotion followed the Monopoly competition in 1998, Monopoly drink cups could not have been used immediately following the Monopoly competition because other special promotional cups were to be used for the new promotion. However, as I have said, exhibit 245 demonstrates that although the AFL/Coke promotion started on 17 August, it involved only large cups of Coca-Cola, Monopoly cups could be used for serving milkshakes. Thus surplus promotional cups could have been used during the AFL/Coke competition. The exhibit also suggests that 1998 promotional packaging was in short supply by the end of the competition.
230 Cross-examination also addressed the practice of stock rotation. Many restaurants rotated stock on a "first in-first out" basis. Although this method of operation was common to virtually all restaurants, some did not apply it to non-perishable items, or did not apply it as rigorously to such items as to perishable items. Other restaurants applied it rigorously to all stock because it was good practice or to ensure that the practice was consistently applied to perishable stock.
231 I turn to the specific restaurants.
(A) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angle Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
(B) RELEVANT CLAIMANT: RODNEY GEORGETAYLOR
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Dates of Acquisition: Early in the competition
232 Janine Maree Daveta had worked for McDonald's for about eighteen years prior to the date of her affidavit, and at the Annerley restaurant for four-and-a-half years. She recalls both competitions. The packaging used in 1998 was blue and that in 1999, purple. The game stamps used in 1998 were red and those in 1999 yellow. At the end of the 1998 competition some promotional cups remained in the restaurant. These were all used up in the period following the competition. The game stamps were first removed. The witness could not recall what was done with them. She did not observe any 1998 competition packaging in the restaurant after the end of that competition. In particular, she did not see any of that packaging during the 1999 competition. The witness was not cross-examined.
233 Kellie Michelle Fewings had worked at Annerley for four-and-a-half years prior to the date of her affidavit. She is a crew chief. She recalls both competitions. The 1998 packaging was blue and the 1999 packaging, purple. The game stamps used in 1998 were red and those in 1999 were yellow. The witness has not seen any 1998 promotional packaging in the restaurant since the end of the 1998 competition. Since that time she has been into the stock room five to ten times each day. She was not cross-examined.
234 Janet Dianne Gough has been the restaurant manager at Annerley since March or April 1998. She recalls both competitions. The packaging for the 1998 competition was pale blue and that for 1999, deep purple. The backs of the 1998 game stamps were red and those of the 1999 stamps, yellow. The restaurant received one roll of spare labels in the 1998 competition. It was kept in the manager's office. At the end of the competition no labels remained on the roll. The restaurant had run out of hash brown promotional bags and large cups. The roll was used in place of them, presumably with generic packaging. The witness tried to obtain another roll, but none was available. Some 1998 packaging was transferred from the Kangaroo Point restaurant. Ms Gough recalled receiving one box of hash brown bags and possibly some large cups.
235 In 1998 and 1999 the witness performed the majority of end-of-month stocktakes. Following the 1998 competition, a small amount of promotional material remained in the restaurant. Her consultant instructed Ms Gough to remove the game stamps, which she did. The stock was then used up in the period immediately after the competition. Consultants are employed by the respondent to advise on restaurant management. Ms Gough said that no 1998 competition stock remained at the restaurant after the run-out period for the 1998 competition. She aims to keep paper stock at a low level. The stock turnover time at Annerley is ten to fourteen days. The restaurant ran low on stock during both competitions. She recalls that 1998 food redemption stamps were presented at the restaurant for redemption in 1999. She may have seen half a dozen or a dozen such stamps. She had heard from one or two other restaurants that they also were receiving red stamps.
236 Ms Gough maintained that there was no 1998 promotional stock in the restaurant at the beginning of the 1999 competition notwithstanding the fact that stock records as at 1 October 1998 suggested that promotional packaging was still held at that date. She thought that it was probably generic stock which had been wrongly counted as Monopoly stock.
237 Jennifer Margaret Parrish (see also Kippa-Ring) worked at Annerley between March 1998 and July 1999 as second assistant manager. She was therefore at Annerley during the 1998 competition and for part of the 1999 competitions. After the 1998 competition several boxes of promotional cups remained and possibly other promotional packaging. All such stock was used up in the period immediately following the competition. Game stamps were removed from the stock before it was used. Stamps were discarded. In the period between March 1998 and March or April 1999, she was responsible for ordering at Annerley and carried out weekly stocktakes in conjunction with such duties. No 1998 packaging remained in the premises following the 1998 promotion. The witness would observe stock deliveries once or twice a month and saw stock rotation being carried out at such times.
238 There was some possibility of stock transfers from Rocklea to Annerley. The evidence of Messrs Parkinson and Roche, who gave evidence concerning Rocklea, suggested that there was no 1998 stock at that restaurant during the 1999 promotion.
239 There are two claimants who may possibly have acquired their disputed stamps at this restaurant. One is Mr Leishman who identified fifteen possible restaurants, and the other is Mr Taylor who identified none. His fiancee, Ms Dobson, suggested that they may have acquired stamps at a restaurant near the Mater Hospital. Annerley may fit that description. Springwood was another possibility. In the circumstances, neither claim can be seen as supporting the other.
(A) RELEVANT CLAIMANT: GEOFFREY OWEN FAULKS
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 5 July 1999
(B) RELEVANT CLAIMANT: MICHELLE MAREE HAYWARD
Disputed Game Stamps:
(1) Double (Northumberland Avenue)
(2) Double (The Angel Islington)
Alleged Dates of Acquisition:
(1) 18-19 June 1999
(C) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999;
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
240 Matthew David Brearley was not required for cross-examination. He has been the restaurant manager at Aspley since 20 July 1999. He did all of the stocktakes at the restaurant following his arrival and did not see any 1998 competition packaging or game stamps in the course of his duties. His evidence is of limited value in view of his late arrival at the restaurant.
241 Megan Faith Connell worked for McDonald's from November 1996 until recently but no longer does so. She was employed at the Aspley restaurant from 1 March 1999. Her duties included ordering stock and supervising stock deliveries. Prior to ordering stock she counted all unopened boxes in the stock room and entered these amounts into the computer. The computer then calculated appropriate orders. She might adjust those figures to take account of expected high or low demand. The restaurant had a high turnover of stock. When she carried out her inspections prior to ordering, the stock room was generally quite bare. Prior to a Walkers delivery, staff would move the existing stock to the front of the shelves. Newly delivered stock was usually placed to the rear as the restaurant operated on a "first in-first out" stock rotation basis. Ms Connell did not see any 1998 Monopoly promotional packaging at the Aspley restaurant. The purple 1999 packaging was the only promotional material which she saw whilst she was at the restaurant, other than the cherry pie packaging which was red. She thought that the game stamps in 1999 were purple.
242 Stephen Andrew Wigan is currently first assistant manager at Deception Bay. From about the last week in September 1998 until the end of April 1999, he was employed as second assistant manager at Aspley. He was responsible for placing weekly orders with Walkers. It was necessary that he be fully aware of all stock held at the restaurant. To that end he would regularly check stock levels, including packaging stock. In the course of his stocktaking he did not observe any 1998 Monopoly promotion packaging at the restaurant, save that during an inspection on Sunday, 4 October 1998 he observed three unopened cartons of 1998 Monopoly promotional medium cups and one opened, and partly used carton of 1998 Monopoly promotional medium fry boxes. They were in the downstairs store room. As a result of this he reduced his orders and arranged for the promotional stock to be used up before non-promotional packaging of the same types. Thereafter he regularly directed staff members to move batches of the promotional stock to one of the drive-through booths on the ground floor, to remove the game stamps from the packaging and to put them in a cup. He observed the unused stamps being thrown into a bin. The promotional packaging was then used without game stamps attached to it. By the end of the first week in October, all of the 1998 promotional packaging had been used. He did not observe any other 1998 promotional packaging at the restaurant. He had conducted at least one inspection prior to 4 October and not seen the material in question. In cross-examination he said that after discovering the 1998 cups, he "double-checked" the rest of the stock room and found the medium fry boxes.
243 Samantha Louise Lynch had worked for McDonald's for about nine years prior to October 1999. She was manager at Aspley from the end of 1997 until 26 July 1999 when she transferred to Deception Bay. She recalls both competitions and that the colour of the packaging differed in the two years. There was at least one roll of labels in the restaurant during the 1998 competition. It was kept in the safe. She did not see the roll in the restaurant after the end of the 1998 competition. She regularly carried out month-end stocktakes, counting every item of stock. Promotional stock was counted separately from generic stock. At the end of the 1998 competition, some promotional packaging remained. This was run out gradually in the period following the end of the promotion. Labels were detached from the stock prior to its being so used. They were placed in a waste bin. She did not subsequently see any 1998 promotional stock at the restaurant.
244 Emma Clare Chapman had been employed by McDonald's for about eight years prior to October 1999. She is now a restaurant manager. She was first assistant manager at Aspley from May 1998 to March 1999 when she transferred to Roma Street. She recalls both competitions. In the 1998 competition, the Aspley restaurant had at least one roll of spare labels which was kept in the manager's office. She did not see any spare labels after the end of the competition. Since the end of the 1998 competition, she has supervised Walkers deliveries to Aspley on at least six occasions. She does not recall how much competition stock was left at the restaurant at the end of the 1998 competition, if any. She assisted the manager with month-end stocktakes from late 1998 until March 1999. This involved counting every item in the restaurant. She did not see any 1998 competition stock during these stocktakes.
245 Although there are three claimants who may have received stamps at this restaurant, only Mr Faulks actually claims to have done so. Mr Leishman named this restaurant as one of fifteen possible restaurants at which he may have obtained a stamp. Mr Hayward named it as one of three possible restaurants, but the thrust of that case is that the stamps were obtained at Virginia. Each claimant can add little to the strength of the case of each of the others.
(A) RELEVANT CLAIMANTS: MARY AND WILLIAM CAMPBELL
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Single (King's Cross)
Alleged Date of Acquisition: 7 July 1999
(B) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999;
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
246 Geoffrey Norman Bell is the operations manager of four restaurants owned by Don Stalker, including Australia Fair. During the 1998 competition, that restaurant exhausted its roll of spare labels in the course of the competition, or shortly thereafter. In par 12 of his affidavit, Mr Bell explained that in ordering promotional stock, he took into account the number of spare labels on hand, anticipating that he would use them with generic packaging towards the end of the competition. He distributed promotional packaging and spare labels amongst the four restaurants so that all four ran out of packaging either during the competition or within a short time thereafter. He said that on no occasion during the 1999 competition did he see 1998 promotional packaging in any of the restaurants.
247 Aneta Ruhs has worked at the Australia Fair restaurant since July 1997. Her surname is now Roberts. Her cross-examination appears under that name. In June 1998 she was appointed as restaurant manager. The roll of spare labels was fully used during the 1998 competition. At the end of the competition, a few sleeves of medium cups and a small number of medium fry boxes remained, as did some tray liners. These were exhausted during the run-out period. The packaging was used within a day, but the tray liners lasted for a couple of days. Before use of the packaging material during the run-out period, the labels were removed. Under Mr Bell's supervision, she took great care to avoid having large amounts of promotional material remaining after the competition. She said that on no occasion since the 1998 competition has she seen any 1998 packaging anywhere in the restaurant.
248 Donald Thomas Stalker is the owner of the Australia Fair restaurant, together with the other restaurants to which Mr Bell referred. He has been involved with these restaurants for many years. At the end of the 1998 competition his restaurants retained a small amount of promotional packaging. He said that it was exhausted during the fourteen day run-out period following the promotion. He thought that it was used up within about a week. In his restaurants, all stock is turned over within fourteen days. He visited his restaurants on or about 1 July 1999 when he returned from holiday and inspected the stock rooms. There was no 1998 promotional material in them at that time. He has not seen any such material in his restaurants since the end of the 1998 competition.
249 Although there are potentially two claims involving this restaurant, one is by Mr Leishman who has named fifteen possible restaurants. For this reason, the claims are not mutually supportive.
RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999;
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
250 Karen Michelle Dickson commenced employment at the restaurant in February 1998, initially as trainee manager and then as second assistant manager. She recalls both competitions. The packaging in 1999 was purple and the backing on the stamps, yellow. In 1998 the restaurant had one or two rolls of spare labels. They were kept in the safe. After the 1998 competition, she went to the safe from time to time in the course of her duties and did not see the labels.
251 Monopoly stock was stored in the roof, away from generic stock. The witness regularly checked both the store room and the roof in the course of her duties. She did not see any 1998 competition stock after the end of that competition. In cross-examination she said that she thought the 1998 packaging had been pale blue. She was unsure of the colour of the backing on the stamps. She was confident that promotional material was kept in the roof in 1999. She was not sure about 1998. Her recollection was that the restaurant ran out of all 1998 promotional stock prior to the end of the competition.
252 Gary Neil Byrne commenced employment at the restaurant in September 1997 as a trainee manager and became a second assistant manager in January 1998. He recalls both competitions and that the colour of the competition stock was different in each year. There was no 1998 promotional packaging left in the restaurant after the end of the 1998 competition. During 1998 he had responsibility for ordering stock. He regularly checked the amount of stock held. During both competitions, competition stock and generic stock were kept separately. Competition stock was kept in the roof until the competition started. During the competition, only promotional stock was on the floor. He regularly inspected the restaurant, including the roof, to ensure that it was kept tidy and that stock was rotated. He has not seen any 1998 competition stock since the end of the 1998 competition. He was confident that all packaging and game stamps for that competition had been used up, either in the course of the competition or shortly thereafter. He recalled one occasion on which a young man sat on the verandah of the restaurant with about a dozen red stamps. He left, apparently without presenting them.
253 Michael Mark Howie commenced employment at the Beaudesert restaurant in July 1997 and had been second assistant manager for about two years prior to September 1999. He had previously worked as a casual crew member. For about four months prior to September 1999, his responsibilities included ordering stock. He recalled both competitions and that the colour of the packaging was different in each competition. Monopoly packaging was stored in the roof during both competition. He has participated in month-end stocktakes since just before the commencement of the 1999 competition and has not seen any 1998 competition packaging during such stocktakes. He would go into the roof at least once each day. He thought that the 1998 roll of labels had been exhausted before the end of the 1998 competition, but this may have been an assumption on his part. He has not seen it since the end of the competition.
254 Justin William Lemberg has been the owner-manager of the Beaudesert restaurant since August 1997. He recalls both competitions and that the promotional packaging in 1999 was purple with yellow-backed stamps. The 1998 competition packaging was a different colour. During the 1998 promotion the restaurant had one roll of spare labels which was locked in the manager's office. Before the end of the competition some of the promotional packaging ran out, and the spare labels were used with generic packaging. He has not seen the roll since the 1998 competition. He thought that it had probably been used up when they ran out of stock. He said, "We were searching our store head and tail to find them", meaning apparently the spare roll, although it may be that he was referring to packaging. He had inquired at managers' meetings as to whether there were any remaining rolls and been told that there were not.
255 Some packaging remained on hand at the end of the 1998 competition. It was used up during the run-out period, with the labels attached. For the first few weeks of the 1998 competition, packaging and generic stock were stored together. Subsequently, the promotional stock was stored in the roof as it was during the 1999 competition. In his oral evidence-in-chief he explained that the reason for storing the stock in the roof was that during the early part of the 1998 competition, staff had been stealing the stamps. The roof was thought to be a more secure storage place. Stock in the roof was regularly counted during 1998 and 1999. Since the end of the 1998 competition run-out period he has not seen any 1998 stock in any of the storage or service areas of the restaurant.
RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999;
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
256 Bryce Alan Altmann had worked at Beenleigh for two years prior to September 1999. He is now the restaurant manager. He recalls both competitions. In 1998 there were two rolls of spare labels at the Beenleigh restaurant. They were kept in the safe and used in the last week or two of the competition when the restaurant ran out of some promotional stock. At the end of the competition, approximately one-and-a-half rolls remained. They were sent to the restaurant owner's administration office. Mr Altmann said that a small quantity of competition stock remained at the end of the competition. This was used up within a couple of days. Labels were removed as the stock was sold. He carried out two month-end stocktakes in 1999 prior to the commencement of the 1999 competition, counting all stock in the restaurant. He did not see any 1998 competition stock. Prior to each stocktake, "month-end prep" (presumably "month-end preparation") takes place, involving a check of all stock. Since the end of the 1998 competition he has not seen any 1998 stock when he has done the month-end prep, nor did he see any during the 1999 competition.
257 Sarah Jane Carter has worked as a crew person at Beenleigh since October 1994. She recalls both competitions. The 1999 game stamps had yellow backing whereas the 1998 stamps had red backing. There were also differences in the packaging. The 1999 packaging was purple. She neither saw nor used any 1998 competition packaging during the 1999 competition. She was not cross-examined.
258 Michael James Fegelson is the owner-operator of the Beenleigh restaurant and other restaurants, including Loganlea and the Hyperdome. He has been the owner-operator at Beenleigh since 1992. He recalls both competitions. At the end of the 1998 competition some promotional packaging remained at both Beenleigh and Loganlea. It was used within a week. The labels were removed by staff or management before the stock was used. He performs random checks of stock holdings at each restaurant at least four times per year. During such checks at Beenleigh he did not see any 1998 promotional stock after the end of the 1998 competition. He thought that some stock remaining at the Hyperdome was also used during the run-out period. He saw no 1998 Monopoly stock there in the course of 1999. He said in cross-examination that in 1998 at each restaurant, rolls of spare labels were kept in the safe. At the end of the promotion they were returned to his central administration office or disposed of at the restaurants.
259 Amanda Kay Naumann was the restaurant manager at Beenleigh from 1996 until recently, including the periods of both competitions. She is now the supervisor of all Mr Fegelson's restaurants. She recalls both competitions. In 1998 the backing of the game stamps was red. In 1999 it was yellow. There were two rolls of spare labels for the 1998 competition. They were kept in a safe in the manager's office. She does not recall what happened to them after the competition. She regularly goes to the safe and has not seen them since the 1998 competition. She recalls removing game stamps from stock as soon as the 1998 promotion ended. The stock was then used. This took two to three days. At the end of each month there is a stocktake of all stock in the restaurant. She performed the stocktakes for ten of the twelve months prior to October 1999. She did not see any 1998 competition stock.
RELEVANT CLAIMANT: LINDA CAIN
Disputed Game Stamp: Double (King's Cross)
Alleged Date of Acquisition: 23-25 July 1999
260 Christopher Brooks Horn has been owner-operator of the Boronia restaurant since November 1996. He frequently conducts spot-checks to ensure that stock is "being used efficiently and it (is) being rotated". He did not see any 1998 promotional material during such spot-checks after the completion of the 1998 competition. He said that the roll of spare labels was used up in the course of the 1998 competition. All packaging was used up before the end of the run-out period. In cross-examination he said that he recalled game stamps being removed from the 1998 stock which was to be used during that period. There was some evidence of transfers into the restaurant in 1999 of large and medium fry boxes and cups. There is no evidence as to whether these items were generic or promotional stock.
261 Mario Robert Latina has been employed at the Boronia restaurant since about May 1997. He is responsible for stock rotation and receiving new deliveries. He has regularly performed spot-checks and usually performed monthly stocktakes during the 1998 and 1999 competitions. Following the end of the 1998 competition he did not see any 1998 promotional stock in the restaurant. He recalled placing two rolls of spare 1999 labels in the restaurant safe. The only occasion during the 1999 competition on which he saw a 1998 stamp was when a customer presented it in support of a claim for a prize.
262 Emma Jane McDougall is a swing manager at the Boronia restaurant. She has worked there on a casual basis since 1997. She was a swing manager during the 1999 competition and a crew person during the 1998 competition. Following the end of the 1998 competition she did not see any promotional material in the restaurant other than when customers presented 1998 stamps to claim prizes. During the 1999 competition, she did not see any packaging which differed in colour from the promotional packaging for that competition. She did not see any red game stamps distributed to customers. She thought that she might have received ten or twenty red food redemption stamps.
263 Jacqui Anne Cisek has been a crew member at Boronia since 1996. She recalls both competitions. During the 1999 competition, she did not see or use any packaging other than the purple 1999 packaging with yellow stamps. She did not see any red-backed stamps. She was not cross-examined.
264 Elizabeth Clare Glatz was a shift assistant at the restaurant, having worked there since January 1997. She recalls both promotions. Her evidence was similar to that of Ms Cisek.
RELEVANT CLAIMANT: L J BRENNAN
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 6 June 1999
265 Peter Luigi Gaiero has worked at the restaurant since mid 1998 and became restaurant manager in November 1998. Because of the direction taken in cross-examination, it is necessary to be specific about his employment record. Although the respondent's records demonstrate that Mr Gaiero commenced work at the restaurant prior to 31 May 1998, his own recollection goes back no farther than his appointment as manager in late 1998. He recalls performing duties in a restaurant prior to that date but cannot say from his own recollection that he did so at the Bribie Interchange restaurant. However the respondent's employment records demonstrate that he was at Bribie Interchange.
266 He was in the restaurant daily during the working week and was involved in all aspects of its operation. He has not seen any 1998 Monopoly promotional material at the restaurant since late in 1998. During the 1998 competition, the roll of spare labels was kept in the safe in the manager's office. No labels remained at the end of the competition. Customers complained because they had received hash browns without labels, indicating that no extra labels were then available. During the 1999 competition, the roll of spare labels was kept in the manager's office and used to replace labels which had fallen from packaging material. He recalled labels from the roll being used with generic hash brown bags when the restaurant ran out of promotional bags. The labels had yellow backing. He saw no light blue 1998 Monopoly promotional material at the restaurant during the 1999 competition.
267 In the course of cross-examination it was suggested that there was some inconsistency between his affidavit sworn on 3 February 2000 and an earlier affidavit sworn on 30 September 1999 (which is now exhibit 336). In the affidavit of 30 September 1999, the witness said that upon arriving at the Bribie Interchange restaurant, he had completed an inspection and not observed any 1998 stamps. He also said that he had opened the safe on numerous occasions and had not seen any roll of 1998 labels. This evidence was given when he was unaware of the date upon which he commenced at the Bribie Interchange restaurant. When he swore his second affidavit on 3 February 2000, he knew that he had started there in May. In that context he referred to his recollection that at the end of the 1998 competition, there had been no spare labels available and that customers had complained about this. This recollection would have been apparently irrelevant to him when swearing his first affidavit because he then believed that he was not at the Bribie Interchange restaurant during the 1998 competition. Its relevance emerged when the respondent's employment records demonstrated that he had in fact been there. Thus, far from undermining his credit, this difference in approach demonstrates that at the time of swearing his first affidavit, he was trying conscientiously to distinguish between events which may have occurred in the 1998 competition (when, as he then understood, he was not at Bribie Interchange) and those which occurred in connection with the 1999 competition (when he was certainly at that restaurant).
268 As with a number of other restaurants, there was some suggestion made in cross-examination that promotional material may have been stored in a roof space and overlooked during routine stock rotation and stocktaking. The witness denied that this was possible because the roof space was regularly checked and because only "Happy Meal" toys and certain stainless steel material are stored there. He agreed that he had not inspected the roof space for the specific purpose of ensuring that there was no 1998 Monopoly packaging there. He saw no red stamps during the course of the 1999 competition.
269 Renee Leigh Garrad had been employed by the respondent for about three years and eight months prior to September 1999. She commenced work at the Bribie Interchange restaurant in about September 1997 and is now a first assistant manager. She recalls the 1998 competition and the 1999 competition. During the 1998 competition, the restaurant had one roll of spare labels to which only managers had access. It was kept in the safe. She does not recall whether there were any labels left at the end of the competition. She has cleared out the cupboards in the restaurant, including the office, on numerous occasions since 1998 and not seen the roll. At the conclusion of the 1998 competition the restaurant had very little Monopoly promotional material remaining. A small amount was "run-out" after the end of the competition. She has not seen any such stock since that time. When promotional stock was received at the restaurant, it was identified separately on invoices. Cartons were also marked separately. Cartons of promotional packaging had different WRIN codes from those containing generic packaging. Stock was routinely rotated to ensure that old stock was used first. Promotional material was not stored separately but during promotions, generic packaging was placed to the rear of the storage area so that crew members would have access to, and would use promotional stock. Cups were stored above the production bins as well as in the store room.
270 The witness took part in stocktaking on a regular basis, using a hand-held inventory recorder. Promotional packaging was counted separately from generic packaging. She does not recall seeing any 1998 packaging during these stocktakes. The restaurant would use a carton of large cups in two days, a carton of hash brown bags in five days, and a carton of fry boxes in two days.
271 In the course of cross-examination Ms Garrad said that she was not involved in stocktaking or ordering during the 1998 competition. She commenced such duties towards the end of 1998. Thereafter she did not see any 1998 stock whatsoever in the course of her stocktakes. Promotional material was not normally kept in the roof. The roof was checked at every stocktake. This was because Happy Meal boxes and Happy Meal toys were sometimes kept there. She could not recall whether all of the spare labels were used during the 1998 competition, but she has not seen any since the end of that competition. She saw no red game stamps during the 1999 competition.
272 Damien Robert Hames had been employed by McDonald's for about fifteen months prior to 30 September 1999. He commenced employment at the Bribie Interchange restaurant on 22 March 1999 as promotions manager and second assistant manager. He recalls the 1998 competition from his previous employment at another restaurant. His evidence was generally supportive of other evidence from witnesses employed at the restaurant. He was not cross-examined.
273 Keshena Bridget Poll is a second assistant manager at the Morayfield restaurant. She worked at the Bribie Interchange restaurant from November 1995 until November 1998 and was second assistant manager from 1 February 1998. During the 1998 competition the roll of spare labels was kept in the manager's office, which was usually locked, only managers having access. She recalled using the labels when promotional packaging had been exhausted and also when labels were missing from such packaging. The roll was used up prior to the end of the 1998 competition. She received an inquiry from a manager at another restaurant as to whether she had any spare labels. She informed the inquirer that she had none. There was not much Monopoly promotional packaging left at the end of the 1998 competition. She removed game stamps from such material, and it was used in the usual way. She also saw others removing stamps. She did not see any Monopoly promotional packaging at the restaurant from that time until she left in November 1998. She said that stock was not stored in the roof at the Bribie Interchange restaurant because it was a fire hazard. Maintenance personnel would go to the roof regularly to clean exhaust fans.
274 Trevor John Bemrose is a maintenance employee at the Bribie Interchange restaurant and also assists with the delivery of stock. He commenced there in August 1998. When new stock is delivered, new cartons of packaging are placed behind open boxes. He ensures that promotional stock is kept separate from generic stock and that it is used first. Since he commenced assisting with the receipt of deliveries in early 1999, he has not seen any 1998 promotional material at the restaurant. Mr Bemrose was working on 6 June 1999, the day when the Brennans patronized the restaurant.
275 Christopher Ian Evans was employed as a manager at the Bribie Interchange restaurant from April until July 1999. He has worked in McDonald's restaurants since 1992. When he started at Bribie Interchange he familiarised himself with the restaurant. This included an inspection of the stock room. He was in charge of ordering during the 1999 promotion. As part of this process he would perform weekly stocktakes. At no time did he see any 1998 Monopoly promotional material in the restaurant. He recalled the roll of spare labels for the 1999 competition. He used it on occasions with hash brown bags after the restaurant had run out of promotional material. The labels were yellow. He recalled children presenting red-backed stamps during the 1999 competition but did not otherwise see any such stamps at the restaurant during that competition. He was not aware of stock being stored in the roof. He said that he would have served in the drive-through area at some time on 6 June 1999.
276 Juleann Maree Cunningham commenced work at the Bribie Interchange restaurant in December 1996. She was a crew person during the 1998 and 1999 competitions. During the 1999 competition she saw only one colour of packaging used at the restaurant. She worked on 6 June 1999, between 4.00 pm and 8.00 pm. She was not cross-examined.
277 Rachel Katie Paris has worked at the Bribie Interchange restaurant since mid 1998. She recalls the 1999 competition. She saw only purple packaging during that competition. During the 1999 competition there was a roll of spare labels which she occasionally used with generic hash brown bags. The labels were yellow. She also worked on 6 June 1999, between midday and 7.00 pm, on the front counter. She said in cross-examination that she did not see any red stamps on cups or fry boxes during the 1999 competition. She recalled receiving one red stamp presented by a customer seeking to redeem it. She told the customer that it was a 1998 stamp and referred the matter to the manager.
BROWNS PLAINS RESTAURANT
RELEVANT CLAIMANT: GARY ARTHUR STEVENS
Disputed Game Stamp: Double (King's Cross)
Alleged Date of Acquisition: 16 July 1999
278 Robert Charles Grady is the owner-operator of both the Marsden and Browns Plains restaurants. He has owned and operated Marsden since 1995 and Browns Plains since 1992. He recalls both competitions. Each restaurant had one roll of spare labels in 1998. They were stored in a drawer in his desk. He threw them away after the competition. He personally observed month-end stocktakes at both restaurants on a couple of occasions over the twelve months prior to October 1999 and did not see any 1998 competition stock. He recalls that Marsden ran out of some competition stock before the end of the 1998 competition and that none was left at the restaurant after the competition finished. A small amount of stock was left at the Browns Plains restaurant, but this was used in its entirety immediately following the competition. He says that both restaurants were thoroughly cleaned out four times a year. He has seen this process being undertaken and says that no 1998 stock was discovered. He did not see any in either restaurant during the 1999 competition. He is in each restaurant daily. He swore a supplementary affidavit concerning stock records. He said in the course of cross-examination that in both restaurants, particularly Browns Plains, they ran very short of stock during the 1998 competition. They used labels off the roll, presumably with generic packaging, in order to keep trading.
279 Christian John Johnstone became acting manager at Browns Plains in February 1999 and restaurant manager in June 1999. He was a manager at Marsden between October 1994 and the end of 1997. He recalls both competitions. Although he was not working during the 1998 competition, he participated as a customer. Since joining the Browns Plains restaurant in February 1999 he has undertaken thorough stock checks each week for the purposes of ordering. He has not seen any cartons other than generic cartons or those for current promotions. During the 1999 promotion he saw only purple-coloured packaging and did not see any red-backed game stamps.
280 Kyra-Lea Lake has been employed at Browns Plains since May 1998. She recalls both competitions. She was working at the Browns Plains restaurant around lunch time on Friday, 16 July 1999. During the 1999 promotion she saw only purple Monopoly promotional packaging. She did not see any of the light blue packaging used in the previous year. She was not cross-examined.
281 Jackie Amanda Jones was employed at Browns Plains between 1997 and November 1999. She currently works at another McDonald's restaurant. She recalls both competitions. She was working around lunch time on Friday 16 July 1999. The 1999 packaging was different from that used in 1998, which was blue. The 1999 game stamps were yellow whilst those in 1998 were a different colour. During the 1999 promotion, whilst working at Browns Plains, she did not see any packaging of a different colour from that being used for the 1999 promotion. She did not see any of the blue coloured packaging, nor did she see any game stamps other than yellow-backed game stamps.
282 Brian Lennard Davidson was employed by Mr Grady as supervisor of both Marsden and Browns Plains. He recalls both competitions. Over the "last year" (ie prior to 30 September 1999) he had performed the month-end stock at Browns Plains about "eighty per cent of the time". This involved his counting every item of stock in the restaurant. In the course of so doing he had not seen or counted any 1998 promotional packaging. He was primarily responsible for ordering at Browns Plains prior to March 1999. This involved his carrying out regular stocktakes. Towards the end of the 1998 promotion, stock was run down so that it ran out as soon as possible after the end of the competition. A small amount of packaging remained. It was used up in the restaurant during the run-out period. The stamps were removed before use. He also rearranges the stock room every three months to ensure cleanliness and better operation. In the course of so doing, he moves all boxes of stock, both food and paper. He has not seen any 1998 promotional packaging since the end of the competition. Stock, including paper stock, was occasionally stored in the roof, but old promotional stock was not retained.
283 Matthew Karl Laurentsch has worked at both Marsden and Browns Plains. For about six and a half years prior to 30 September 1999 he worked at Browns Plains, save for a period of four months between March and mid-August 1999. He recalls both competitions. He did not see any promotional stock used during the 1999 competition other than the 1999 stock with yellow backing. He was not cross-examined. Obviously, he spent most, if not all of the 1999 competition at Marsden rather than Browns Plains.
BURLEIGH HEADS AND BURLEIGH WATERS RESTAURANTS
RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
284 Both restaurants are owned by Donald Elwin Kissell. The Burleigh Heads restaurant was described by Mr Leishman as "Miami". The two restaurants have been dealt with together in all relevant affidavits.
285 Karen Maree Bond has worked for McDonald's since 1989. She is now restaurant manager at Burleigh Waters. She went there as second assistant manager in January 1996. She had been first assistant manager at Burleigh Waters for about a year prior to October 1999. She recalls both competitions. In the course of her duties she would visit the stock room every day to check that stock had been rotated. She was responsible for placing orders and performed stock counts before doing so. She has also been responsible for month-end stocktakes since the beginning of 1998 but did not perform the last three or four prior to October 1999. In the course of a stocktake she counts all stock in the restaurant. She has not seen any 1998 competition packaging since the end of that competition. She worked only at Burleigh Waters during the 1998 and 1999 competitions.
286 Janine Michele Heath commenced employment with McDonald's in 1990 and has worked at Mermaid Beach, Burleigh Waters and Burleigh Heads. She transferred from Burleigh Waters to Burleigh Heads in December 1998. She is currently second assistant manager. She recalls both competitions and that the colour of the packaging was different in each year. In the 1998 competition at Burleigh Waters, there were two rolls of spare labels. No spare labels remained at the end of the 1998 competition. One week after the 1998 competition finished, she went on leave for a week. After she returned, she did not see any 1998 promotional packaging anywhere in the restaurant.
287 At the Burleigh Heads restaurant, she did the month-end stocktake for December 1998 and did not see any 1998 packaging. Since December 1998 she has had daily involvement in cleaning the restaurant, including the stock room. She enters the stock room approximately four or five times per day and has not seen any 1998 competition in the restaurant at any time. In cross-examination she said that the 1998 packaging was light blue and the 1999, purple.
288 Donald Elwin Kissell is the owner-operator of both restaurants and is involved in their day-to-day operation. He recalls both competitions. The backs of the game stamps in each competition differed. He does not recall there being any promotional packaging left in either restaurant after the 1998 competition. He has regularly inspected the restaurant since the end of that promotion and has not seen any. He thought that there had probably been full field inspections of both restaurants at some stage between the 1998 and 1999 promotions. During the 1999 competition, people had tried to redeem 1998 stamps. He denied that there had been any 1998 game stamps or packaging in either restaurant in June 1999.
289 Kelda Ann Quinn is currently the restaurant manager at Burleigh Heads. She has been there since Christmas 1997. She remembers both competitions. She recalls that there were differences in the packaging used in each. In the 1998 competition the restaurant received at least one roll of spare labels. These were used up during the competition. At the end of the competition a small amount of promotional packaging remained. The restaurant used this material until it ran out. She has not seen any 1998 packaging in the restaurant since then. She has performed month-end stocktake for the restaurant since February 1999. She has not counted any 1998 packaging in that time. She has not seen or used any such packaging since the 1998 stock was exhausted, nor did she see any used during the 1999 competition. As the person responsible for ordering, she would have known if there were any 1998 packaging left at the end of the 1998 competition.
RELEVANT CLAIMANT: DANIEL MARK JONES
Disputed Game Stamp: Double (Coventry Street)
Alleged Date of Acquisition: Late June 1999
290 Raimgaudas Bagdonas has owned the Caboolture restaurant for over nine years. He recalls both competitions. In 1998 the roll of spare labels was kept in the safe. It was stolen at some time during the competition and not replaced. Not much 1998 stock remained at the end of the competition. It was used within a few days. He did not recall seeing any 1998 stock in the restaurant after the end of the competition. In particular, he did not see any 1998 stock during the 1999 competition. In cross-examination he said that he recalled discussing the question of stock levels with his ordering manager, Luke Goffey, during the 1998 competition. Some days before the end of the competition, he asked whether there would be much stock left over and was told that there would not be much. Mr Goffey was told to get rid of it. At a later stage, he asked again and was told that a couple of days' worth of stock remained. He asked if they would be able to get rid of it and was told that they would. He again asked Mr Goffey to make sure that this occurred. Some days later he was told that all stock had been used.
291 Luke James Goffey has worked at the Caboolture restaurant since July 1992 and is now the second assistant manager. He has also been the ordering manager on numerous occasions since 1996. He was responsible for ordering during the 1998 competition and for part of the 1999 competition. He recalls that packaging and game stamps were different colours in each year. The 1999 game stamps had yellow backing. In the course of ordering, he carries out stocktakes each week, entering stock numbers and projected sales to generate orders. He has not seen any 1998 packaging at the restaurant since the run-out period after that competition. At the end of the competition some fry boxes and possibly some cups remained. The stamps were removed from this packaging, and it was used. He said that during 1999, prior to the 1999 competition, he conducted month-end stocktakes of packaging on two occasions. On neither occasion did he see any 1998 material. He did not see any during the competition or at any other time after the run-out period in 1998.
292 Two other witnesses from this restaurant gave evidence but were not cross-examined. Rory James Ferguson had worked there for five years prior to September 1999. Since July 1998, he has been shift assistant manager. He recalls both competitions. The 1998 packaging was blue and the 1999, purple. For five weeks before the 1999 competition he was responsible for ordering stock. During this time he saw no 1998 competition stock and saw none during the 1999 competition. Paul Daniel Clapp had worked at the Caboolture restaurant for three-and-a-half years prior to swearing his affidavit in October 1999 and as a second assistant manager for about twelve months. He recalls both competitions. The colour of the packaging in the 1999 competition was purple. He occasionally supervised deliveries of stock. He did not see any 1998 competition packaging during the 1999 competition. He has performed four monthly stocktakes since the 1998 competition in which he has counted all stock in the restaurant. At no stage did he see any 1998 competition stock. He did not say when those stocktakes had occurred.
Relevant Claimant: Norman Wayne Leishman
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
293 Kerry Gaye Collins had worked at the Caloundra restaurant for five-and-a-half years prior to 28 September 1999. She recalls both competitions. She is responsible for promotions. The packaging in 1999 was purple and a different colour in 1998. She recalls that there was a roll of spare labels in 1998. It was kept in the safe. The restaurant ran out of labels early in the 1998 competition. She tried to get more from head office but could not do so. Some promotional cups remained in the restaurant at the end of the competition. She spent half an hour removing stamps. They were thrown into the bin. The cups were then used. This took, at most, two weeks after the end of the competition. She did not see any 1998 competition stock during the 1999 competition or at any other time after the end of the 1998 competition. The witness was not cross-examined.
294 Michael Robert Hinds has worked for McDonald's for twelve years. He is currently restaurant manager at Caloundra. He recalls both competitions. He was working at Caloundra during both of them. At the end of the 1998 competition a small amount of stock remained. This was used during the run-out period after the stamps were removed. He regularly performed month-end stocktakes for the two years prior to September 1999. He did not see or count any 1998 competition packaging after the end of that competition. Approximately three months prior to 25 September 1999 he assisted in a major clean-out of the stock room so that shelves could be painted. He saw no 1998 stock, nor did he see any during the 1999 competition. He has not seen the 1998 roll of spare labels since the end of the 1998 competition.
295 Riley Matthew Hinds has worked at Caloundra since February 1990. Since the start of 1994 he has been a manager. He is currently first assistant manager. He recalls both competitions. During the 1998 competition, the roll of spare labels was kept in the safe. At the end of the 1998 competition no spare labels remained. A small amount of promotional packaging remained. It was used during the run-out period, the game stamps having been removed. Prior to September 1999, and in the course of that year, Mr Hinds performed four or five month-end stocktakes. At no time during those stocktakes did he see or count any 1998 competition packaging. He would have entered the stock room at least once every second day. At least two managers enter it each day. He did not see any 1998 competition packaging during the 1999 competition or at any other time after the end of the 1998 competition. A small percentage (perhaps one per cent) of the food redemption stamps presented in 1999 were red.
296 Jayne Margaret Kincade has worked at the Caloundra restaurant since 1994. She has been second assistant manager since December 1996 or January 1997. She recalls both competitions and that the packaging used in each was different. The roll of spare labels received for use in the 1998 competition was kept in the safe. She cannot recall what happened to it or whether there were any labels left at the end of 1998. She has not seen it in the safe since the competition ended. She goes to the safe every time she works. She is regularly in the stock room and is familiar with stock on hand. Had there been any promotional packaging at the restaurant after the end of 1998, she would have observed it during the discharge of her duties. She does not actually say that she has not seen any such packaging, but as much is implicit in her evidence.
297 Allen Douglas Morgan had been the owner-operator of the Caloundra restaurant for twelve years prior to July 1999. He was usually in the restaurant six out of seven days and regularly went into the stock room. He was present during both competitions. His evidence was based upon his understanding of practices in the restaurant and did not take the matter any further.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double ( Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
298 Timothy John Parker has been the manager at Canning Vale since 1 January 1999. He previously worked at another restaurant. He was present in the Canning Vale restaurant during the 1999 promotion, other than for the four days from 29 July to 1 August when he was on leave. When Monopoly stock arrived for the 1999 competition it was stored in the manager's office and moved to service areas as required. Cups were taken by the carton. Other packaging was taken in quantities necessary to fill the various dispensers. He only ever saw purple packaging with yellow stamps during the 1999 promotion. There was a roll of spare labels used in the 1999 competition. They were yellow. He has carried out the month-end stocktakes since January 1999 and has not seen any 1998 promotional packaging in that time. He was told by other members of the management team that two or three red food stamps had been presented in the course of the 1999 competition.
299 Matthew John Sanders was the first assistant manager at Canning Vale from October 1998 until September 1999. Prior to that time he was second assistant manager. He remembers both competitions. He was acting manager from August 1998 until January 1999. As second assistant manager his responsibilities included ordering and statistics. He was on leave between 6 June and 5 July 1999. In the 1998 competition, the promotional packaging was used up by the end of the run-out period. In the months following that competition, there was no Monopoly packaging in the restaurant. Mr Sanders did the month-end stocktakes from the second half of 1998 until September 1999, with the exception of December 1998 and January 1999, and did not see any 1998 promotional packaging. The restaurant had a roll of spare labels for the 1998 competition. It was fully used when the restaurant ran out of promotional cups. He saw only purple packaging with yellow labels during the 1999 competition. A roll of spare labels was used in the 1999 competition. It was used up when the restaurant ran out of various types of promotional packaging.
RELEVANT CLAIMANT: JAMES JOHN MILLER
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Single (Marlborough Street)
Alleged Dates of Acquisition:
(1) Between 11 June and 1 July 1999
(2) Between 11 June and 1 July 1999
300 Tolly Kotsopoulos was restaurant manager at Clifton Hill during the 1998 and 1999 promotions. He supervised the delivery of promotional packaging for both competitions and performed month-end stocktakes. He did not see any 1998 competition packaging in the restaurant after the 1998 competition. That material was all used up during the run-out period. There were two rolls of spare labels during the 1999 competition. They were stored in the safe. The labels were yellow. The witness did not see any 1998 competition stamps or promotional packaging during the 1999 competition, save for one occasion when somebody requested a redemption envelope and showed him a tray mat which bore a 1998 stamp.
301 Frank Sinfatt Liew has been licensee at the Clifton Hill since 1989. He is constantly in the restaurant, assisting whenever required and performing managerial and administrative functions. At the commencement of the 1998 competition he saw the roll of spare labels in the safe. He recalls that the restaurant ran out of some promotional packaging and used the labels from the roll. At the end of the competition he removed the roll from the safe and threw it into the dumpster. Some promotional packaging remained at the end of the 1998 competition. It was used up during the run-out period. He regularly performed random spot-checks of stock during the year and did not see any 1998 promotional packaging. He observed two rolls of spare labels in the safe during the 1999 competition. After the 1998 competition he did not see any 1998 competition stamps, promotional packaging, stock or promotional cartons in the restaurant. In his cross-examination he said that there may have been two rolls of spare labels in 1998, but he was confident that he had disposed of all of the remaining stamps. His best recollection, according to his affidavit, appears to have been that there was only one.
302 George Ziogas is employed as a crew person on a casual basis at Clifton Hill. He has worked there for approximately five years. During the 1999 competition he supervised Walkers deliveries. Since the completion of the 1998 competition he has not seen any 1998 stamps, packaging or cartons in the restaurant.
RELEVANT CLAIMANT: PETER ANTHONY MCGAHEY
Disputed Game Stamp: Single (Coventry Street)
Alleged Date of Acquisition: One or two weeks prior to 17 June 1999
303 Darren Milton Stevens is area supervisor for the Tuggeranong, Erindale, Conder and Queanbeyan restaurants, which position he had held for three years prior to September 1999. He was previously restaurant manager at Tuggeranong and Queanbeyan. He visits each restaurant at least three times per week. He remembers both competitions. He was on leave between 19 July and 8 August 1999. He closely monitored packaging levels in the restaurants during the 1998 competition. To the best of his recollection the maximum amount of packaging at any restaurant at the end of the promotion was of the order of one carton of cups or half a carton of apple pie boxes. As apple pies were not promotional items in 1998, I take this evidence as merely indicative of quantity. This material was used up immediately following the competition. Although he cannot remember the exact date, he is of the opinion that this was only a matter of weeks after the promotion finished. He did not see any 1998 Monopoly packaging used at any of the three relevant restaurants (Tuggeranong, Erindale or Conder) during the 1999 promotion. When it was suggested that people were using 1998 stamps in the 1999 promotion, he specifically checked that there was no 1998 packaging at any of the three restaurants. In cross-examination the witness agreed that stock records suggested that some promotional french fry boxes remained in the restaurant at the end of the 1998 competition. Mr Stevens was confident that they were used up shortly thereafter.
304 Michelle Louise Edward has been the restaurant manager at Conder since April 1998. She was in the restaurant during the 1998 and 1999 promotions, except for a period of leave from 21 June 1999 to 5 July 1999. She does not recall any 1998 Monopoly packaging in the restaurant after the end of the 1998 promotion. During the 1999 promotion she saw only 1999 promotional packaging. She recalls the 1998 roll of spare labels. Some labels remained at the end of the promotion. She threw them in the bin. During the competition the roll had been kept in the safe.
305 Emma Jayne Keen was second assistant manager at Conder from January 1999. She was previously a trainee manager. She no longer works for McDonald's. She saw only 1999 Monopoly packaging during that competition. She worked full-time at the restaurant during both the 1998 and 1999 competitions, other than for one week spent in Sydney in August 1998. From September 1998 until February 1999 she was responsible for purchasing and so did weekly stocktakes. She also performed one month-end stocktake in November 1998. The colour of the backing of the stamps was different in 1998 from 1999. She recalls that a roll of spare 1998 labels was kept in the safe. She does not know what happened to it. She does not recall seeing it after the 1998 promotion.
306 Paul Lawrence Azzopardi became the second assistant manager at Conder in November 1997. However he was not working there between August 1998 and March 1999. He no longer works for McDonald's. He was responsible for ordering stock from late April or early May 1999. In 1999, Monopoly packaging stock was placed in the roof prior to commencement of the competition. It remained there for some time. Opened cartons were kept in the manager's office. Cups were removed directly from the roof to the shelf above the production bin. Towards the end of the promotion, the stock was transferred to the stock room. After returning to work at the restaurant in March 1999, he did not see any 1998 Monopoly promotional packaging. During the 1999 promotion he saw only 1999 promotional packaging. In cross-examination he said that the 1998 Monopoly stock was aqua-coloured with red stamps which had "a red top on them". Although there was some confusion, it seems that he was not working at the restaurant during the 1998 competition. He recalls that the 1998 game stamps were red and the 1999, yellow.
307 Scott Dilley exhibited certain stock records and was not cross-examined. It is not necessary to address those records for present purposes.
RELEVANT CLAIMANT: VALERIE ESTHER LAUGHLIN
Disputed Game Stamp: Double (Coventry Street)
Alleged Date of Acquisition: 14 June 1999
308 Leanne Joy Allman has been the manager at Cranbourne since April 1999. Prior to that she was manager of the Packenham restaurant. She was not at Cranbourne during the 1998 competition. However, upon commencing her employment in April 1999, she completed an extensive and exhaustive review of all material stored in the restaurant. This took one-and-a-half days. She found no 1998 packaging. She says that no 1998 packaging was held by the restaurant at the beginning of the 1999 competition and none was used during that competition. The restaurant underwent a full field assessment on 29 April 1999. In the course of that activity, no promotional packaging was found. The colour of the promotional material in 1998 was blue and that in 1999, purple.
309 Denise Margaret Nabb is the owner-operator of the Cranbourne restaurant. In 1998 the roll of spare labels was kept in the manager's office and used with generic packaging when promotional stock was in short supply. She said that had any of the spare labels remained in the restaurant after the end of the competition they would have been disposed of prior to September. She did not see any 1998 stamps presented during 1999. There was no 1998 Monopoly promotional packaging in the restaurant after the end of the run-out period for that competition. There was none present during the 1999 competition. To some extent this appears to be a statement of opinion, partly based on what other people have told her.
310 In the course of cross-examination Ms Nabb said that either she or Ms Allman would have escorted the McDonald's inspector during the full field inspection. As I have explained elsewhere, the full field inspection is in two parts. Ms Nabb was referring to the second part. On the first inspection the previous manager or Ms Nabb would have escorted the inspector. Ms Nabb said that had there been Monopoly stock from the 1998 competition in the restaurant at the time of the inspection, it would have been brought to her attention. She said that 1998 promotional stock was predominantly blue. She thought that the 1999 stock was predominantly purple.
311 Exhibit 200 is an extract from the manager's diary at Cranbourne. For 15 August 1998 there is an entry as follows:
All Mgrs,We have run out of large "Monopoly" fry boxes. We are now using normal large fry boxes and you need to give each customer when ordering large fries two empty medium fry boxes to compensate for their Monopoly tickets.
Any problems, see Nic.
312 Nic was a second assistant manager. There is another note on the same page as follows:
All Mgrs,Do not under any circumstances lend any Monopoly stock to any stores.
Thanks
Nic.
313 It seems that as at the middle of August 1998, there was a significant shortage of Monopoly stock, particularly large fry boxes.
RELEVANT CLAIMANT: JOANNE ROBYN ROBINSON
Disputed Game Stamp: Double (Marlborough Street)
Alleged Date of Acquisition: 1 July 1999
314 David Eldridge has been the owner-operator of the Dapto restaurant since 1993. He recalls the 1998 promotion. No 1998 promotional packaging was left at the restaurant at the end of the promotion. He has not observed any since. It was not necessary to take advantage of the run-out period to use up remaining stock. No 1998 promotional packaging was used in the 1999 promotion. He recalls that in 1998 and 1999, rolls of spare labels were provided. They were locked in his office. Only a few labels were used during the 1998 promotion. He threw out the remainder of the roll.
315 It appears that notwithstanding the witness's affidavit, the stock records show that in August 1998 a small amount of promotional stock (100 large cups) remained. They were gone by the end of September. Mr Eldridge swore a supplementary affidavit in February 2000 in which he said that although most of the stock was used up prior to the run-out period, some remained at the restaurant following the commencement of that period. It was used during that period, save for a small quantity which he discarded immediately thereafter. He said that the only promotional material used in 1999 was the 1999 promotional material with yellow-backed stamps.
316 The discrepancy between Mr Eldridge's two affidavits demonstrates the relative ease with which a witness can erroneously assert that all stock was used by a particular time. Nonetheless, the contemporaneous records which reveal his error also confirm his evidence that the stock in question was disposed of before the end of September. It was only a very small quantity. Counsel suggested to him that he may have retained this stock to use in the restaurant in a future promotion. He denied this.
317 Sharyn Ann Duguid was the manager at Dapto. She started work there on 5 September 1993. She remembers the 1998 promotion. She initially said that she thought that all stock had been used during the competition and not during the run-out period. In a supplementary affidavit she said that she had been shown the stock reports for the months of July to September 1998 which suggest that promotional material may have been used during the days immediately after the end of the 1998 promotion. She did not observe any 1998 promotional packaging at the restaurant following the end of the promotion. No 1998 packaging was used during the 1999 competition. She did not recall what had happened to the roll of spare labels in 1998 but believed that Mr Eldridge had disposed of it. She handed it to him after the competition finished in 1998. He said that he was going to dispose of it. She does not know what happened to it. She no longer works at McDonald's.
318 Kellie Williams is the first assistant manager at Dapto. She was previously a shift manager. She recalls both competitions. She has carried out numerous month-end stocktakes at Dapto since she has been employed there and in doing so, has counted all packaging. In particular she carried out the month-end stocktake for the month ended 30 June 1999. During the 1999 promotion, she saw only the purple promotional packaging used in the competition. She did not see any blue 1998 promotional packaging.
(A) RELEVANT CLAIMANT: TRACEY ELIZABETH HOOPER
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 16 June 1999
(B) RELEVANT CLAIMANT: NICHOLAS PATRICK NOLAN
Disputed Game Stamp: Double (Marlborough Street)
Alleged Date of Acquisition: 26 June 1999
319 The witness, Mark Robinson also gave evidence concerning this restaurant in the course of the applicant's case. His evidence is summarized following that of the claimant, Hooper.
320 Anita Maria Hansen is the first assistant manager at the Bribie Island Interchange restaurant, but during the 1998 and 1999 competitions, she was the acting manager at Deception Bay. She recalls both competitions and in particular, that the 1998 game stamps had red backing and the 1999, yellow. The 1999 packaging was purple. The 1998 packaging was a different colour. At Deception Bay, Ms Hansen supervised the ordering and delivery of stock on a number of occasions. Ordering involved a physical check of stock levels. Before stock was delivered, store rooms were cleared out, dates on cartons checked and those with the oldest dates placed at the front. This rotation of stock ensured that stock was used in accordance with the "first in-first out" stock rotation procedure. She said that during a promotion, generic stock was placed behind promotional stock. She regularly checked that promotional stock was being used before generic stock. She would, on occasions, place signs on stock, saying "Use promotional material first" or "Do not use".
321 She regularly participated in month-end stocktakes. During such stocktakes she did not see any 1998 competition packaging after the end of that competition. At that time approximately three quarters of a carton of cups and about 200 fry boxes remained. These were used during the run-out period with the stamps removed. All of the stamps were removed in one session and placed in a rubbish bag. She has not seen any 1998 packaging since the end of the run-out period.
322 During the 1998 competition the restaurant had at least one roll of spare labels. She has not seen it since the end of the 1998 competition. She recalls using spare labels during the 1999 competition. They had yellow backing. Contrary to Mr Robinson's evidence, Ms Hansen said that she had never permitted old promotional stock to be stored in the roof. She permitted only Happy Meal boxes and toys to be stored there. Ms Hansen said that the crew was specifically told of the differences between the 1998 and 1999 competition packaging. This appears to have been relatively unusual. At most restaurants it was thought to be obvious.
323 Ellen Elizabeth Houghton commenced work at the Deception Bay restaurant in 1995. During 1998 and 1999 she was acting first assistant manager. She is now a second assistant manager. She recalls both the 1998 and 1999 competitions. The packaging and game stamps differed in colour for each year. At the end of the 1998 competition a couple of sleeves of cups remained. She peeled labels off the cups and tore them up. The cups were then used until they ran out. Within a few days of the end of the 1998 competition, the restaurant had no remaining competition packaging. She has not seen any such packaging since that time. She saw a roll of spare labels in 1998. It was kept under the front counter during the day but secured in the office safe at the end of the day. Those labels were mostly used for hash browns. A couple of weeks before the end of the 1998 competition the roll was fully used. The witness has not seen it since that time. She saw the 1999 roll. She was not cross-examined.
324 Samantha Louise Lynch had worked for McDonald's for nine years as at October 1999. She was manager at Deception Bay from 26 July 1999. She did not see any 1998 promotional packaging at that restaurant after arriving there. She did all of the month-end stocktakes at the restaurant and did not see or count any 1998 competition stock in that time. She did a complete stocktake at midnight on 25 July 1999 in the presence of Jane Williams, a McDonald's consultant, and Mr Robinson. She said that as far as she knew, only tray mats were stored in the roof.
325 There are two claims from this restaurant, that of Ms Hooper and that of Mr Nolan. Ms Hooper's is rather weak in view of her admission that she is not sure that she obtained her ticket in 1999. Mr Nolan's claim also has its difficulties.
RELEVANT CLAIMANT: JAMES JOHN MILLER
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Single (Marlborough Street)
Alleged Dates of Acquisition:
(1) Between 11 June and 1 July 1999
(2) Between 11 June and 1 July 1999
326 This restaurant is that referred to by Mr Miller as "Doncaster". David Sutton Bayes has been the owner-operator of numerous restaurants, including Doncaster East, since January 1994. During the 1998 and 1999 competitions, he also owned and operated Lower Templestowe and Doncaster Food Court. He regularly visited the restaurants. During his visits after the 1998 promotion, he did not see any 1998 promotional packaging.
327 Christopher Allan Denmead was the operations manager for Mr Bayes' three restaurants from November 1994 until August 1999. He mainly worked in the Doncaster East restaurant as it was open for twenty-four hours each day. He recalls the 1998 competition. Some cartons of promotional packaging remained at the end of the competition. He peeled the stamps from at least two cartons of stock and sealed them in a box which he stored in the roof of the restaurant. He also took fry boxes to his home to perform this function. About two weeks later he removed the sealed box and threw it into the dumpster. The promotional packaging (with the stamps removed) was used up in the course of the run-out period. He is certain that there was no promotional stock left in the restaurant after the 1998 competition. He performed most of the monthly stock counts between the 1998 and 1999 competitions and did not see any 1998 promotional stock while so doing. He recalls the rolls of spare labels used in the 1998 and 1999 promotions. They were stored in the safe. He did not see the 1998 labels following an occasion on one weekend during the competition when they were taken out for use. He did not see any 1998 promotional stock or cartons in the restaurant after the completion of the 1998 competition. A full field audit was performed at Doncaster Food Court and Lower Templestowe between the two competitions. In preparing for these audits, no 1998 promotional stock was located in either restaurant. This may be relevant to the question of transfers. The witness is no longer involved in McDonald's operations.
328 Christine Bernadette Green is currently employed as second assistant manager at Doncaster East. She started working with McDonald's in about July 1996. She was a crew member during the 1998 competition and second assistant manager during the 1999 competition. She transferred from the McDonald's Food Court restaurant at Doncaster to the Doncaster East restaurant in late August 1998. During the 1999 competition the restaurant ran out of some promotional packaging and had to use the roll of spare labels. She saw that the labels were yellow. Since the 1998 competition she has not seen any 1998 promotional stamps, stock or cartons in the Doncaster East restaurant. During the 1998 promotion she was at the Doncaster Food Court restaurant. She was not sure whether she arrived at Doncaster East during or after the 1998 competition.
329 Stuart Thomas Lafranchi started work at Doncaster East. on or about 1 June 1998. He was the first assistant manager at that restaurant during both competitions. He has regularly conducted spot-checks of stock. Since the end of the 1998 competition he has not seen any 1998 stamps, stock or cartons. He is presently employed at Doncaster Food Court.
330 Catherine Margaret Schurmann is currently second assistant manager at Doncaster East. She commenced work there in mid-February 1997 and was a second assistant manager during both competitions. She was absent for the last part of the 1998 competition. She did not see any 1998 promotional packaging or stamps in the restaurant after the end of that competition, other than on one occasion. On that occasion a customer requested a redemption envelope and showed her a tray mat which bore a 1998 stamp.
RELEVANT CLAIMANT: SOPHIE DOWLING
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: Between 4 June and 12 July 1999
331 Christopher Stephen Cogger was second assistant manager at Doveton during the 1998 and 1999 competitions. At the end of the 1998 promotion there was some remaining promotional packaging. He and other staff removed the stamps so that it could be used. The stamps were discarded. He recalls the roll of spare labels provided for the 1998 competition. He does not recall whether any labels were left at the end of the promotion. He did not observe any 1998 packaging or game stamps being used in the restaurant during the 1999 promotion. There was no 1998 promotional packaging at the restaurant during the 1999 promotion.
332 Gregory Dean Old was the restaurant manager at Doveton during the 1998 and 1999 Monopoly promotions. The restaurant works on a "first in-first out" stock rotation basis. The restaurant owner ordered the removal of stamps from promotional packaging at the end of the 1998 promotion. This was done. The stamps were discarded. The witness performed stock counts at the Doveton restaurant during both the 1998 and 1999 promotions. He recalls the roll of spare labels provided for the 1998 competition. It was kept in the manager's office. He recalls that the roll was used up before the end of the 1998 promotion. He did not observe any 1998 promotional packaging in the restaurant during the 1999 promotion.
333 Ian Peter Vicars is the general manager of the Doveton restaurant which is owned and operated by his brother. Mr Old reports to him. Mr Vicars commenced working for McDonald's in 1993 and was at Doveton for the 1998 and 1999 competitions. There was some 1998 promotional material left at the end of the 1998 promotion. He and his brother instructed the management team and staff to remove the stamps and use it. It took three to four days to dispose of it. He did not observe any 1998 packaging being used or distributed during the 1999 promotion. He visits Doveton on six or seven days each week. The roll of spare labels provided in 1998 was completely used up. He recalls asking Walkers for another roll and being told that they were out of stock. In the course of his oral evidence Mr Vicars said that the Doveton restaurant was unique in that it had no dining room. It sells only to "take-away" customers. It is behind a service station.
334 Stock storage space is very tight at Doveton. A container at the rear of the restaurant is used for some storage. On occasions, stock has been returned to Walkers because it was oversupplied and there was no room to store it. Early in the 1999 competition the restaurant received a voice mail message from their McDonald's consultant asking them to make sure that there was no old stock in the restaurant. Mr Vicars was present when this check was conducted. A number of cartons were opened to ensure that the cups contained in them were the correct colour.
335 The claimant relevant to the Doveton restaurant is Ms Dowling, who presented a double Trafalgar Square stamp. Nonetheless, there was extensive cross-examination concerning exhibits 366 and 367 relating to the number of hash brown bags held in stock at particular times. It was apparently thought that the records demonstrated some irregularity. However hash brown bags bore single stamps. Ms Dowling's double stamp could not have been obtained from a hash brown bag. She does not claim that it was. In any event, it is likely that any irregularity in the stock reports is explained by the affidavit of Ms Neve, a Walkers employee. She is the computer operator who entered the WRIN codes. Ms Neve swore that she had initially been given the incorrect WRIN code for hash brown bags. She was subsequently given the corrected WRIN code and entered it accordingly. However some orders had already been dispatched under the incorrect WRIN code.
RELEVANT CLAIMANT: DARREN ALAN IRWIN
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: Between 4 and 16 June 1999
336 John Gordon Leckie has owned and operated the Dural restaurant since it first opened in October 1993. He spends about five days each week at the restaurant, providing assistance to the management team. He inspects all areas of the operation, including storage areas, on a daily basis. Prior to a promotion, the promotional packaging is stored in the roof and brought down when the promotion commences. He recalls that in August 1998 the restaurant had used up all remaining Monopoly promotional packaging within about a week of the end of the competition. He has not seen any such material since that time. In particular he did not see any of it during the 1999 competition. During the 1998 promotion rolls of spare labels were kept in the safe in the manager's office. One roll was used and another obtained. It was half-used. The balance was discarded.
337 In the course of cross-examination Mr Leckie said that the restaurant had initially received two rolls of spare labels for the 1998 competition and possibly two or three rolls at a later stage. He said that in the 1999 competition it received two rolls. He said that either he or his manager had disposed of the remaining spare labels after the 1998 competition. He did not see them again. In view of the evidence of other witnesses, it seems unlikely that Mr Leckie is correct in his recollection that the restaurant had numerous rolls of spare labels in 1998. Other witnesses have suggested that they had been unable to obtain even one extra roll. In any event he and the next witness, Mr Davidson both understood that all spare labels had been discarded. I will make further comments concerning Mr Leckie's evidence after my discussion of the next witness.
338 James Robert Davidson is the manager of the Dural restaurant. In August 1998 all remaining promotional packaging from the 1998 Monopoly competition was used up within about a week. He has not seen any of that stock since. He recalled the roll of spare labels used in the 1998 competition. He said that following the competition the roll was thrown away. He did not see it in the safe after the end of the 1998 competition. He did not see any 1998 Monopoly packaging during the 1999 competition. In the course of cross-examination he said that he recalled asking somebody to dispose of the partly-used roll of spare labels after the end of the 1998 competition. He was also told that it had been thrown away. He has not seen it since.
339 Much of the cross-examination of both Messrs Leckie and Davidson focussed upon restaurant records said to demonstrate irregularities with respect to the supply of promotional material. I had great difficulty in understanding this line of questioning. The applicant submits that it demonstrates that there was promotional packaging remaining in the restaurant at the end of August 1998. Both Mr Leckie and Mr Davidson say otherwise. They say that all remaining material was used within about a week of the end of the competition, that is by about 23 August. The applicant's submissions appear to be based upon WRIN codes, although the witnesses suggested that generic stock and promotional packaging had probably been counted together. No attempt was made in written submissions to develop this argument, the only submission being the assertion that stock remained at the end of August. I am unable to deal further with this submission.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
340 David Cranston Evans had owned this restaurant for thirteen years prior to October 1999. He spends five days each week there. Only a small quantity of promotional material was left at the end of the 1998 promotion. The restaurant had run out of some items of promotional packaging by that time. The rest was used up within a week of the end of the competition. He has not seen any 1998 promotional packaging at the restaurant since that time. There was a roll of spare labels for use in the 1998 competition. It was kept in the manager's office. The restaurant ran out of spare labels prior to the end of the 1998 competition. During the 1999 promotion Mr Evans did not see any 1998 promotional packaging or labels being used at the restaurant. He specifically checked at the end of the 1998 competition to ensure that there was no promotional packaging remaining in the restaurant. He performed a stocktake in November 1998.
341 Carolyn Ruby Kuhnert is the second assistant manager at East Victoria Park. She began as a crew member there and became a manager in late 1997 or early 1998. At the end of the 1998 promotion, not much promotional packaging remained. It was used up after the end of the promotion. She recalls the roll of spare labels for the 1998 competition. No labels were left on the roll at the end of the competition. She was responsible for ordering from January 1999 until May 1999. This involved her in counting cartons of stock in the storage area. She was also involved in month-end stocktakes from February 1998 to December 1998. Since the end of the 1998 promotion she has not seen any 1998 promotional packaging at the restaurant, nor did she see any used during the 1999 promotion. She recalls using the roll of spare labels during the 1999 competition. The labels were yellow.
342 Daniel Joel Sloan was a swing manager at East Victoria Park during 1998 and 1999. From early 1998 until August 1999 he was responsible for Walkers deliveries. He would prepare the stock room prior to delivery and store the stock when it arrived. In the course of preparing for deliveries he would make sure that all cartons of similar packaging were stored together. He would move loose packaging material to the front counter area and make sure that new stock was put behind old stock. During a promotion, generic packaging would be put behind promotional packaging. He performed these duties from the end of the 1998 competition until August 1999. During that period he did not see any 1998 packaging at the restaurant. He is now at a different restaurant.
RELEVANT CLAIMANT: JAMES JOHN MILLER
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Single (Marlborough Street)
Alleged Dates of Acquisition:
(1) Between 11 June and 1 July 1999
(2) Between 11 June and 1 July 1999
343 Adam Paul Kelly worked at McDonald's for many years but resigned in late 1998 to undertake study. He was the restaurant manager at Elsternwick during the 1998 competition. He presently works there on a casual basis. During the 1998 competition he observed the roll of spare labels which was kept in the manager's cash drawer. At the end of the competition he observed the following stock remaining in the restaurant:
* one carton of large cups,
* half a carton of medium cups,
* half a carton of large fry boxes, and
* one carton of medium fry boxes.
344 He, with other employees, removed the competition stamps from the packaging and discarded them. The packaging was then used in the restaurant during the run-out period. Since the end of the competition he has not seen any 1998 tokens, stock or cartons anywhere in the restaurant. He could not recall seeing the roll of spare labels after the end of the 1998 competition although he regularly went to the cash drawer where it had been kept.
345 Gary Rubinstein is presently the restaurant manager at Elsternwick. He has worked there for more than nine years and became manager in early October 1998. He was the first assistant manager during the 1998 competition and manager during the 1999 competition. He performed most of the month-end stocktakes between November 1998 and March 1999 and has assisted in stock counts since March 1999. He has not observed any 1998 promotional packaging in the restaurant since the end of the 1998 competition. He said that the restaurant ran out of some promotional packaging during the 1998 competition. He instructed crew members to use the roll of spare labels. He recalls that only a few labels remained on the roll when the competition finished. Only a small amount of promotional packaging remained. He and other employees peeled off the stamps. They were placed in a large cup which was thrown into the bin. There was a full field audit in February 1999. I assume that this is the same as a full field inspection. He participated in it and observed no 1998 material in the restaurant. He has not observed any such material there since the end of the 1998 competition, except on a few occasions when customers seeking redemption envelopes have shown him 1998 stamps. During both competitions the roll of spare labels was kept in a drawer in the manager's office to which he would have regular access.
346 He said in cross-examination that he had not personally removed all stamps from the surplus 1998 packaging. He noticed that the roll of spare 1998 labels disappeared shortly after the end of the promotion. Mr Rubinstein's evidence can best be summarized by this passage at TS 2585 in his cross-examination:
In so far as promotional packaging is concerned, you had some of that left over from the 1998 competition? That's correct.And what happened with that promotional packaging; what did you do with it? We tried to use it as quickly as possible so that way it wouldn't be sitting in the store collecting dust.
That's what you understood was happening, was it? No, that's what we did.
How do you know that you did that? At the time I was running a lot of shifts, and I was, during some of my shifts, using that stock, and I remember peeling off the tickets before we used the cups and boxes for the customer.
You peeled off some of the tickets, did you? Yes.
Not all of the tickets? No.
So on occasions on your shift, the 1998 excess stock was used, and you peeled off some of the tickets? That's correct.
And you didn't actually see when you weren't there other staff doing that? The instruction was for all staff to peel off the ticket.
That's not what I asked you. I said when you weren't there ... ? When I wasn't there ...
...
You obviously couldn't see other staff? ... No I couldn't see it. No.
So you're simply in that context relying on the instruction that you gave? ... That's correct.
It wouldn't be the first time instructions that you've given at the store haven't been carried out would it? ... No, that's probably correct.
347 Peter Charles Knight is currently the first assistant manager at Elsternwick. He commenced work there in October 1995 and was second assistant manager during both the 1998 and 1999 competitions. During the 1998 competition he was responsible for receiving deliveries and would check the store room to ensure that new promotional packaging was placed in its correct position for stock rotation. At the end of the competition some promotional packaging remained. He and other employees peeled stamps from the packaging before it was used during the run-out period. The stamps were discarded. All of this packaging was disposed of during the run-out period. He recalls seeing the roll of spare labels in the manager's office during the 1998 competition and using it during that competition. In the course of his oral examination he said that he had thrown it out after the competition. He performed stocktakes until October 1998 and did not find any 1998 promotional packaging or cartons after the run-out period. He did not see any such material in the restaurant after the end of the competition. He had heard at some stage that 1998 food redemption stamps had been presented during the 1999 competition.
RELEVANT CLAIMANT: JOHN WILLIAM BUCHTMANN
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: On or Before 29 July 1999
348 This restaurant is operated by Anthony John Bridges as licensee. He was previously employed by Walkers as national field service manager. He is "heavily involved" in the day-to-day operation of the restaurant, generally spending eight hours per day, seven days per week there. He employs his son, Scott Bridges, as restaurant manager. Usually, stock is consumed on a "first in-first out" basis. A stock check is conducted twice weekly. Total turnover of stock occurs approximately every ten days. There is an audit at the end of each month which is conducted by the first assistant manager. This includes all packaging. Following the end of the competition in 1998, game stamps were removed from promotional packaging which was then used in the restaurant until it had been exhausted. The witness removed the stamps and disposed of them. No 1998 promotional packaging was left in the restaurant after the end of the prescribed run-out period, nor has he observed any since. He was not aware of the proposal to run the 1999 Monopoly competition until late in 1998. Mr Bridges recalls the rolls of spare labels used in 1998 and 1999. In each year, the roll was secured in his office on the restaurant premises. Only a small number of labels were used in 1998. He took the remainder of the roll home with him at the end of the promotion and disposed of it with his waste paper. In the course of cross-examination it emerged that some 1500 large fry boxes had been transferred to the Emu Plains restaurant in the course of the 1999 competition.
349 Scott Anthony Bridges is the manager of the Emu Plains restaurant. He is assisted by a team of five assistant managers and a staff of over sixty. Stock is rotated on a "first in-first out" basis. He said that only a small quantity of 1998 packaging remained at the end of the competition and was used up quickly thereafter. The stamps were removed prior to the material being used. He saw no 1998 material in the restaurant other than during a short period after the end of the 1998 competition. The roll of spare labels was stored in Mr Tony Bridges' office which was kept locked when not in use. Mr Bridges took it away after the 1998 competition. The witness could not identify the source of the 1500 fry boxes which were received by way of transfer.
350 Adam Wilson has been second assistant manager since July 1997. His evidence was generally confirmatory of aspects of that of the other witnesses from Emu Plains. He also saw no 1998 promotional material after the end of the run-out period for the 1998 competition. He was not cross-examined.
RELEVANT CLAIMANT: PETER ANTHONY MCGAHEY
Disputed Game Stamp: Single (Coventry Street)
Alleged Date of Acquisition: One or two weeks before 17 June 1999
351 Stuart John Hylton-Cummins had been restaurant manager at Erindale for two-and-a-half years prior to September 1999. During the 1998 promotion the restaurant ran out of promotional cups. The crew was directed to use generic cups with labels from the roll of spare labels. The roll was completely used up at this time. At the end of the promotion labels were removed from all remaining promotional packaging and the packaging then used in the restaurant. Only 1999 packaging was used during the 1999 promotion. Two rolls of spare labels were used for fry boxes when Walkers failed to deliver an order.
352 Aaron John Fogg has been the second assistant manager at Erindale since August 1999. He became a trainee manager in July 1998. Since January 1999 his responsibilities have included ordering stock. When he commenced ordering in January 1999, he saw no 1998 Monopoly packaging at the restaurant, nor did he see any roll of spare labels from the 1998 competition. During the 1999 promotion he saw only purple packaging with yellow labels. He recalls that labels from a roll were used in 1999. In cross-examination he said that there was a roll of spare labels in 1998. It was kept in the safe. He noticed at one stage that it seemed to have been reduced in size. The 1998 stamps were red and the 1999 stamps, yellow.
353 See also the evidence of Mr Stevens (Conder).
FAIRY MEADOW RESTAURANT
RELEVANT CLAIMANT: JOANNE ROBYN ROBINSON
Disputed Game Stamp: Double (King's Cross)
Alleged Date of Acquisition: 19 June 1999
354 Angela Lee Forbes is the restaurant manager at Fairy Meadow, having commenced there in October 1998. She conducts a month-end audit of all stock. Twice each week she also performs stock checks. She performs similar checks after each delivery. Since arriving at the restaurant she has not seen any 1998 promotional packaging.
355 Doris Donna Testa is an operations consultant with responsibility for the Fairy Meadow restaurant, amongst others. She had held this position for three years prior to 13 September 1999. The Fairy Meadow restaurant was moved to its current location at the end of July 1998 during the course of the 1998 competition. The restaurant was closed for two days for this purpose and re-opened on or about 29 July. She specifically recalls checking the storage area of the restaurant following the end of the 1998 promotional run-out period. There was no 1998 Monopoly promotional stock there. She has not seen any at the restaurant since.
356 Luke Raymond McPhail was the first assistant manager at Fairy Meadow until 10 September 1999. The restaurant was relocated to its present site at the end of July 1998 during the course of the promotion. He was overseas for about eight weeks from the end of July until mid-September 1998. About a week after returning to work, towards the end of September, the witness undertook a routine stocktake and observed no 1998 promotional packaging there. He has not seen any since.
357 Dimitra Frances Tsolakis has been employed at the Fairy Meadow restaurant since May 1997. Ms Tsolakis recalls both competitions and that the Fairy Meadow restaurant was relocated during the 1998 competition. She recalls that some promotional material was left over after the 1998 promotion, but it was used up during the run-out period, with the stamps removed. During the 1999 competition she was approached by a number of people who claimed prizes with coupons which bore at least one 1998 stamp. She has not otherwise observed any 1998 promotional packaging or game stamps at the restaurant since the end of the 1998 promotion.
RELEVANT CLAIMANT: INGRID MARIJKE CARLA PURTLE
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 16 June 1999
358 Darrell Edgar Smith has been owner and operator of the Forster restaurant since 1996. He is also the restaurant manager. He is usually at the restaurant seven days a week and is involved in all areas of the operation. He conducts month-end stocktakes of all stock in the restaurant. He has not seen any cartons of 1998 Monopoly promotional packaging since the end of August 1998. He recalls that the promotional material was used during the run-out period. He and his wife first removed all game stamps. A roll of spare labels was kept in the manager's office during the 1998 competition. Some labels remained at the end of the competition. They were thrown out. He did not see any 1998 Monopoly packaging or game stamps during the 1999 competition. There is some evidence of transfers with respect to this restaurant, but not of apple pie boxes.
359 Suzanne Smith is Darrell Smith's wife. She spends about five days each week in the restaurant. She is involved in a number of different aspects of the operation, including the receipt of stock deliveries, month-end stocktakes, stock rotation and paper work. She also spends some time serving customers. The restaurant received a roll of spare labels for the 1998 competition. It was kept in the manager's office. One or two weeks after the end of the competition, she threw it out. She recalls that at the end of that promotion, there was some stock remaining. She and her husband removed the stamps from it, and it was used in the restaurant. No Monopoly promotional packaging then remained. During the 1999 competition she saw only the current Monopoly promotional packaging delivered by Walkers for the 1999 promotion.
360 Brian William Wilcox is the first assistant manager at Forster. He has been employed there since 1996. He has not seen any 1998 Monopoly promotional packaging since the end of that promotion and in particular, did not see any during the 1999 promotion. He recalls that during 1999 there were two rolls of spare labels kept in the manager's office. He checked each roll following a telephone call from McDonald's and found them to be 1999 labels.
361 Ms Purtle claims to have received her disputed stamp on an apple pie box. In view of the improbability of there being 1998 stamps on apple pie promotional boxes in 1999 and the unchallenged evidence from Mrs Smith that she discarded the 1998 spare roll, it seems unlikely that Ms Purtle obtained her stamp in the course of the 1999 competition at this restaurant. She does not suggest that she could have obtained it anywhere else.
RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
362 Mark Alan Bavister has been the restaurant manager at Gatton since October 1997. He recalls both competitions. The packaging in 1998 was blue with red-backed game stamps. During 1999, it was purple with yellow-backed stamps. During the 1998 competition the restaurant received at least one roll of spare labels which was kept in a safe in the manager's office. Towards the end of the 1998 competition the restaurant ran out of large fry boxes. Generic fry boxes were substituted with labels from the roll. The whole of the roll was used up. At the end of the competition, stock levels were low. All promotional stock was used up within a day or so. The witness has been involved in month-end stocktakes since he arrived at the restaurant. He counts every item and enters them into a computer. At no time since the end of the 1998 competition has he seen any 1998 stock in the restaurant. This includes the period of the 1999 competition. In the course of cross-examination he said that he was confident that there had only been one roll of spare labels in the 1998 competition. He said that a mixture of red and yellow food redemption stamps was presented at the Gatton restaurant during the 1999 competition. The red stamps appeared only after media reports concerning problems with the competition.
363 Kirsty Leigh Platz was employed at the Gatton restaurant for four years prior to September 1999. She recalls both competitions. The colour of the packaging differed from year to year. She did not see any 1998 competition packaging during the 1999 competition.
364 George Ross Potter had been the owner-operator of the Gatton restaurant for about two years prior to September 1999. He would visit the restaurant about five times a week. He recalls both competitions and that the colour of the packaging was different in each competition. The game stamps were red in 1998 and yellow in 1999. The restaurant received one roll of spare labels in 1998. It was kept in a safe. Approximately one week prior to the end of the competition, the restaurant ran out of fry boxes. The labels were used on generic stock so that the roll was exhausted. There was very little promotional material left at the end of the competition. Stamps were removed from the packaging, and it was used. It had all gone within a few days. He has not seen any 1998 competition stock in the restaurant since the end of the 1998 competition and did not see any during the 1999 competition. He owned only one restaurant during the 1998 and 1999 competitions. He spends about eight hours a day in the restaurant when he is there. He recalls that the 1999 packaging was very deep purple. The 1998 packaging was a light blue or turquoise colour. He periodically performs stocktakes at Gatton. He said in cross-examination that he could not recall with certainty whether spare labels from the 1998 roll were utilized during the competition or in the first few days of the run-out period.
RELEVANT CLAIMANT: SOPHIE DOWLING
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: Between 4 June and 12 July 1999
365 Debra Anne Williams is currently the restaurant manager at Glen Waverley, having commenced there on 1 July 1999. She is responsible for all aspects of administration and management. She did not observe any 1998 Monopoly promotional material in the restaurant after her arrival there. In the course of cross-examination she said that she was able to identify 1999 stock from the dates printed on the stock labels attached to the various cartons.
366 Vicky Ann Simcox was a full-time second assistant manager at Glen Waverley until November 1999. She commenced with McDonald's in 1992 and moved to Glen Waverley in 1994. She was there for the 1998 and 1999 competitions. She would enter the stock room approximately ten times a day and was thoroughly familiar with the packaging stock held there. She did not observe any 1998 Monopoly promotional material in the restaurant prior to the commencement of, or during the 1999 competition. The printing on the sides of the 1998 and 1999 cartons differed. She said that in both competitions the restaurant had rolls of spare labels which were kept in the safe in the manager's office. During both competitions non-promotional and promotional material were stored separately within the stock room. She did not observe any 1998 promotional material in the restaurant after September 1998.
367 Madeleine Jane Elisabeth Kleinman has been employed at Glen Waverley for approximately four years. Since August 1998 she has been a second assistant manager. She was at Glen Waverley during both the 1998 and 1999 competitions. She does not recall seeing any 1998 Monopoly promotional packaging in the restaurant between the end of the 1998 competition and the beginning of the 1999 competition. The 1999 promotional packaging was purple with yellow labels. Different colours were used in the 1998 competition. She did not observe any 1998 promotional packaging in the restaurant during the 1999 competition, nor did she see any red game stamps. She received no reports from other staff members of any 1998 packaging or red stamps being in the restaurant.
368 Following a telephone call from McDonald's head office on 20 June 1999 she checked the restaurant and found no 1998 promotional material. She became consultant for Glen Waverley in mid-July 1999 and personally checked the stock rooms, kitchen and service areas at that time. She did not see any 1998 packaging material. She has not subsequently seen any 1998 Monopoly packaging at that restaurant.
RELEVANT CLAIMANT: KATIE JANE CARR
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 16 June 1999
369 Tony James Aichinger had been the owner-operator of the Gundagai restaurant for about two and a half years prior to September 1999. He was at the restaurant during the 1998 and 1999 competitions. He usually holds in stock about a dozen cartons of packaging material, including french fry boxes, cups, pie boxes and hash brown bags. During school holiday periods stock levels may be higher. Each type of packaging has a special location. He does not normally rotate packaging material, but during a promotion, he rotates to the extent of ensuring that promotional stock is placed at the front of the shelves and generic stock, towards the rear. Ordinarily, only one carton of a particular type of packaging is open at any one time. All 1998 Monopoly packaging was used up by the end of the promotion. He makes a point of trying to "run-out" promotional material during the promotion. He said that in 1998 he let the material run out and then used labels from the roll of spare labels with generic packaging. He said that by the month-end stocktake following the end of the promotion, there was no 1998 packaging material left in the restaurant. During the 1999 promotion he saw only purple packaging with yellow stamps. He had a conversation with the relevant claimant, Katie Carr. She told him that she had Mayfair and Park Lane stamps at home and that, "My boyfriend's got one and I've got one. He got it from Wagga, and I got it from here." He told her to bring them to the restaurant. A day or two later she did so. He then identified one as being "old" and one as being "new". She said, "I got them here the other week". He said, "I thought you said your boyfriend got one from Wagga?" She said that he had obtained it at Gundagai.
370 Gavin Paul Duncan became first assistant manager at Gundagai in mid-August 1999. For the previous two and a half years he had been employed as second assistant manager. He presently works there on a part-time basis. His change in status apparently occurred after he swore his affidavit (September 1999) and before he was cross-examined. From December 1998, he was responsible for ordering stock. As a result of this he acquired a close familiarity with the contents of the stock room. Since assuming those responsibilities he has not seen any 1998 Monopoly promotional material in the restaurant.
371 Matthew Duffin is employed as a field consultant for the respondent. He is located at Gundagai. He was present at the Gundagai restaurant with Mr Aichinger when a woman, presumably, Ms Carr, came to the restaurant claiming to have won a car. He recalled participating in a conversation with her and Mr Aichinger. He cannot remember what was said other than that there was some reference to submitting the stamps immediately. He noticed that only one of the stamps had golden arches. He was not cross-examined.
RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
372 Mark James Hodgson had worked at the Helensvale restaurant for six years prior to October 1999. He has been restaurant manager since December 1998. He recalls both competitions. The game stamps in 1998 were red and in 1999, yellow. The 1999 packaging was purple. This was different from the 1998 packaging. The restaurant received two rolls of spare labels in 1998. They were kept in a safe. He did not see those rolls at any time after the end of the 1998 competition. There was also a roll received for the 1999 competition. As at October 1999 he had been involved in ten of the preceding twelve month-end stocktakes in which he counted all stock in the restaurant. At the end of the 1998 competition some promotional stock remained in the restaurant. At the end of the run-out period 600 medium fry boxes still remained. They were used after the run-out period. That would have taken about three to four days. In cross-examination he said that he thought that they had used up one of the rolls of spare labels in 1998 and started on the second. He recalls two or three customers seeking to redeem red food redemption stamps in 1999.
373 Stephen Craig Petroff has been employed by McDonald's since September 1992 and has been second assistant manager at Helensvale since December 1998. He recalls both the 1998 and 1999 competitions, during both of which he was employed at Helensvale. The colours of the packaging differed in the two competitions. He did not see any 1998 promotional packaging during the 1999 competition. He was not cross-examined.
374 Michael Peter Power has been the owner-operator of the Helensvale restaurant since September 1992. He recalls both competitions. During the 1998 competition the restaurant received one roll of spare game stamps which was kept in the safe. He observed that there were stamps left at the end of the 1998 competition and that they were destroyed. There was also packaging remaining after the 1998 competition, but it was all used up within about three weeks. It was used with the game stamps still attached. He did not see or use any 1998 stock during the 1999 competition. In the course of cross-examination he said that some red stamps were presented in the early part of the 1999 competition. He also said that he thought that there was an unusually high demand for redemption envelopes in the early part of the competition. Red food redemption stamps continued to turn up throughout the competition. Mr Power thought that he had asked Mark Hodgson to destroy the roll of stamps, although Mr Hodgson had no recollection of this.
RELEVANT CLAIMANT: JUDITH MARIE COLE
Disputed Game Stamps:
(1) Double (Trafalgar Square)
Alleged Date of Acquisition: 6 June 1999
375 Cameron Toomey has been second assistant manager at the restaurant since early 1998. He was responsible for ordering stock during the 1998 and 1999 competitions. He does not recall seeing the roll of spare labels after the completion of the 1998 competition. Following the 1998 competition the restaurant retained one carton of large promotional cups. It had been opened but was largely unused. It was kept on a high shelf at the rear of a large stock room. In March 1999 Mr Toomey reorganised the stock room and noted that the carton was no longer there. He has not seen it or any other 1998 Monopoly packaging since then. In cross-examination he said that he understood that the roll of spare 1998 labels had been used. He recalled an occasion on which only a small number remained.
376 Nathan Paul Richards was also a second assistant manager at Hoyts Regent, having held that position since April 1999. Since being at the restaurant he has not seen any promotional packaging which was not currently in use or proposed for use. The only Monopoly packaging he has seen since he arrived there has been that relating to the 1999 competition.
377 Stacey Lorraine Hawes has been a crew member at Hoyts Regent since about November or December 1998. She was there during the 1999 Monopoly promotion. She worked from 8.00 am until 3.00 pm on 6 June 1999. She only ever saw purple promotional packaging used during the 1999 Monopoly promotion.
378 Deborah Louise Rowe has been a crew member at Hoyts Regent since November 1997. She also worked at the restaurant on 6 June 1999 from 10.00 am until 4.00 pm. She recalled seeing only purple packaging during the 1999 promotion.
379 Danielle Faye Hove has worked at the restaurant since December 1998. She was also working on 6 June, from 11.00 am until 4.00 pm. She saw only purple Monopoly promotional material during the 1999 promotion.
RELEVANT CLAIMANT: PAMELA ELIZABETH MCINNES
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 22 June 1999
380 Sean Samuel Bower was restaurant manager at The Gap from October 1996 to May 1999 and then transferred to the Indooroopilly restaurant. He recalls both competitions and that the packaging for each was different. There were two rolls of spare labels at the Indooroopilly restaurant for the 1999 competition. About three-quarters of a roll remained at the end of the competition. When he first went to the restaurant in May 1999 he completed his own stocktake and also did month-end stocktakes thereafter. He has not seen any 1998 competition packaging in the restaurant since arriving there. A small number of red food redemption stamps were presented each day during that competition.
381 Christine Ann Wallace has worked at the Indooroopilly restaurant since 1993, except for eleven months during 1997 when she was at Toowong. She has been second assistant manager since December 1997. She initially thought that the restaurant had closed after approximately two weeks of the 1998 Monopoly competition. However, in a supplementary affidavit, she said that it had actually closed at the end of May 1998, prior to the promotion. During the period of the closure, from the end of May until 17 August, she worked at other restaurants. She did not recall the restaurant receiving any 1998 competition packaging before it relocated. Her recollections in the earlier affidavit concerning the 1998 competition appear to have been based upon her experience at other restaurants. The packaging in 1998 was blue and in 1999, purple. The 1998 game stamps were red and the 1999 stamps, yellow. The Indooroopilly restaurant re-opened on 17 August 1998, at which stage the 1998 competition had finished.
382 Prior to the restaurant closing in 1998, stock was run down. On occasions they transferred in stock from other restaurants so that they could keep trading. After the restaurant closed, employees from other restaurants collected the remaining stock which was transferred to those other restaurants. All stock was used up or transferred by the time of closure. There is some minor inconsistency in this evidence. Ms Wallace was in the restaurant on the day following closure. Only concrete floors and half the front counter remained. She was in the new restaurant for approximately one or two days before it opened. An "opening package" of stock was received from Walkers. This was the first delivery of stock to the new restaurant. There was no stock in the restaurant prior to this delivery. The delivery did not contain any 1998 promotional material. Whilst moving material into the new restaurant, she did not see a roll of spare 1998 labels. She has not seen any 1998 stock or game stamps at the restaurant.
383 Carrin Frances Allan is presently the restaurant manager at Sunnybank. She was the manager at Indooroopilly from January 1998 until May 1999 when she transferred to Oxley as acting manager. She recalls the Indooroopilly restaurant being relocated in mid-1998. The restaurant closed on 30 May. She completed the final month-end stocktake up to that date. The restaurant had not received any 1998 Monopoly packaging or other related material such as spare labels. The restaurant reopened on 17 August 1998 after the competition had finished. The witness was on leave until just before the opening. She did not recall any 1998 Monopoly packaging being received at the restaurant. She was regularly involved in stocktaking. During the 1998 Christmas period, the restaurant was very busy and frequently ran low on packaging. Before most deliveries during this period, the only stock remaining was the packaging on the floor of the restaurant as all cartons of stock had been exhausted. She said in cross-examination that there was some paper stock at the Indooroopilly restaurant when it closed but she was confident that no promotional material had been received.
384 The Walkers' records suggest that on 14 August 1998 promotional medium cups and medium fry boxes were delivered to the restaurant. This is curious in view of the fact that it was the last day of the competition. Neither Ms Wallace nor Ms Allan appears to have seen this stock. In any event, it seems that these were the only medium cups and medium fry boxes delivered until a further delivery on 25 August. Ms Allan said that some paper stock remained when the old restaurant closed and that the delivery on 14 August was to supplement those stocks prior to opening. If so, then it seems likely that stock received on 14 August, together with any stock remaining in the old restaurant, was expected to be used between 14 and 25 August. Thus it is unlikely that much, if any, would have remained in the restaurant after 25 August. Further, the 1998 Christmas rush referred to by Ms Allan would probably have ensured that any old stock was used. The evidence of Mr Bower, Ms Allan and Ms Wallace suggests strongly that there was no 1998 stock in the restaurant during the 1999 competition. Ms Allan And Ms Wallace have different recollections as to stock remaining in the old restaurant after closure. Ms Wallace's evidence is more direct and precise. If I had to choose, I would prefer her evidence. However the above explanation probably obviates any need to do so.
RELEVANT CLAIMANT: MICHELLE MAREE HAYWARD
Disputed Game Stamps:
(1) Double (Northumberland Avenue)
(2) Double (The Angel Islington)
Alleged Dates of Acquisition:
(1) 18-19 June 1999
(2) 21 June 1999
385 Kristy Jane Hodgetts is the second assistant manager at Strathpine. From early 1998 until late 1999 she was second assistant manager at Kallangur. She would regularly go into the stock storage areas to collect stock. The restaurant operated on a "first in-first out" stock rotation basis. The game stamps in 1998 had red backs and those in 1999 had yellow backs. By the end of the 1998 competition most of the Monopoly promotional stock had been used. She did not see any 1998 stock following the end of the competition. She did not use or see any 1998 promotional packaging during the 1999 competition. All of the Monopoly packaging which she saw in the 1999 competition had yellow game stamps attached to it. In cross-examination she said that the 1999 packaging was purple. She could not remember the colour of the packaging in 1998. There was no 1998 Monopoly promotional packaging or stamps in the restaurant during 1999. To her knowledge, there were no transfers of stock from other restaurants during the 1999 competition.
386 Joseph Douglas Slater has been supervisor of the Kallangur, Redcliffe and Strathpine restaurants since early 1997. The 1999 competition packaging was dark purple whereas that used in 1998 was light blue. He usually visits the Kallangur restaurant once or twice a week for about a half day at a time. He inspects the storage areas. The 1998 Monopoly promotional material was used until it ran out. This occurred during September 1998. He has not seen any 1998 promotional packaging at Kallangur since September 1998. Since that time he has done one or two month-end stocktakes at Kallangur and has not seen any 1998 packaging. During the 1999 competition he did not use or see any such packaging. In the course of his oral evidence, he said that a carton of medium cups would be consumed in about three to four days and a carton of large cups, in about the same time. A carton of large fry boxes would take about five to six days and one of medium fry boxes, about the same. A carton of hash brown bags would last for seven or eight days.
RELEVANT CLAIMANT: DONNA MAREE CLARKE
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Prior to the week immediately prior to 25 June 1999
387 Timothy James O'Shea was restaurant manager from July 1998 to July 1999. He had previously been second assistant manager. He is presently manager at Bowen Hills. He performed month-end stocktakes at Kippa-Ring from July 1998 until July 1999. This involved counting all opened and unopened cartons and packaging in the restaurant, stock rooms and shelving behind the counter. All 1998 promotional stock was used prior to the end of the run-out period following the competition. He did not see any 1998 stock in the restaurant after that time. The restaurant received a small roll of red labels during the 1998 competition. He stored it in the manager's safe. The labels were used with generic stock when promotional stock had been exhausted towards the end of the competition. He has not seen any red labels in the manager's safe or elsewhere since the end of the 1998 competition.
388 Donna Susan Fiechtner has worked at the Kippa-Ring restaurant for about three years as a trainer. She recalls the 1998 and 1999 competitions. In 1998 the restaurant received two rolls of spare labels which were kept in the manager's office. She has not seen the rolls since the conclusion of the 1998 competition. At the end of the 1998 competition a small number of large cups remained. The stamps were removed and the cups used. Since the end of the 1998 competition she has not seen any 1998 promotional material in the restaurant. In a supplementary affidavit she swore that the rolls of spare 1998 labels contained red stamps and that the spare 1999 labels were yellow.
389 Jennifer Margaret Parrish has worked for the respondent since April 1995. Between March 1998 and July 1999 she worked at the Annerley restaurant. She has been the second assistant manager at Kippa-Ring since July 1999. She had nothing relevant to say about the Kippa-Ring operation.
(A) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
(B) RELEVANT CLAIMANTS: MARY AND WILLIAM CAMPBELL
Disputed Game Stamps:
(1) Single (Park Lane)
Alleged Date of Acquisition: 7 July 1999
390 Katrina McEwan worked at Labrador for about five years until November 1999, save for a period of six months when she was at another restaurant. She was senior second assistant manager during the 1998 competition and first assistant manager during the 1999 competition. The packaging in 1999 was purple and in 1998, blue. Rolls of spare labels were kept in the safe during both competitions. As at September 1999 she had performed every monthly stocktake for the preceding twelve to eighteen months. Since the end of the 1998 competition she has not seen any 1998 promotional material at the restaurant. All of the 1998 stock was used up during the run-out period. The average period for stock turnover is ten to fourteen days. She saw no 1998 stock, stamps or packaging material in the stock room or elsewhere in the restaurant following the conclusion of the 1998 competition. She agreed in cross-examination that she may have missed the occasional stocktake if she was on leave. She had no recollection of what had happened to the roll of spare labels in 1998. She said, however, that the roll was not in the restaurant during the 1999 competition. The colour of the 1998 game stamps was red and that of the 1999 stamps, yellow.
391 Although I have treated Labrador as a possible source of the Campbell's stamps, their case was that they came from Australia Fair. Mr Leishman nominated this restaurant as one of fifteen from which he may have obtained a stamp or stamps. Neither claim adds anything to the other.
LAKEMBA (SOMETIMES CALLED BELFIELD) RESTAURANT
RELEVANT CLAIMANT: DARREN ALAN IRWIN
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: Between 4 and 16 June 1999
392 George Sleiman was manager at Lakemba from January 1999 until December 1999. He was employed in other restaurants prior to that time. He did not see any 1998 Monopoly packaging or game stamps in the restaurant during the course of the 1999 competition. During that competition he kept the roll of spare labels in the manager's office. He resigned from McDonald's in early December 1999. In cross-examination he said that he had performed his first stocktake in February 1999. The 1999 Monopoly competition packaging was purple and brown. In 1998 the packaging was blue. He did not see the roll of spare 1998 labels whilst he was at the restaurant.
393 Linda Zreika has been the first assistant manager at Lakemba since August 1999. She was previously a part-time manager at the same restaurant. Since early 1998 she has been responsible for the delivery of stock. This involves her in organising the storage area to receive new stock. Since about September 1998, she has not seen any 1998 Monopoly promotional packaging in the stock cage, nor did she see such packaging in the restaurant during the 1999 promotion. She recalled that the 1998 packaging ran out during the competition. The 1999 packaging was purple. She was not sure of the colour of the 1998 packaging. She recalls the roll of spare labels in 1998, but cannot remember the colour of the labels. That roll was not present in the restaurant during the 1999 competition. She based this conclusion upon the fact that she had not seen it in the safe which she opened every day.
394 Nick Moran is an operations consultant employed by the respondent. He is responsible for four restaurants, including Lakemba. He was the restaurant manager there between January 1998 and the end of January 1999. He recalls both competitions and that the colour of the packaging material differed from competition to competition. Some promotional material was left at Lakemba at the end of the 1998 competition. He instructed staff to use the remaining material after first removing the game stamps. He saw the bag of peeled stamps in the safe shortly after the end of the competition. In late August or early September, the bag disappeared. He has not seen it since. As for the roll of spare 1998 labels, relatively few were used. The roll was stored in the safe. He cannot remember exactly what happened to it, but he remembers that it was there during the 1998 promotion and not there after late August or early September. He next saw a roll of labels at the beginning of the 1999 competition when he saw the roll delivered to the restaurant for the purposes of that promotion. He has not observed any 1998 promotional packaging or game stamps at the restaurant at any time since the conclusion of that promotion, including the run-out period. In particular, he did not see any during the 1999 promotion. In cross-examination he said that he participated in stocktakes in the period following September 1998. Despite detailed cross-examination about stock records at this restaurant, no specific submission has been made concerning them.
LOGANHOLME RESTAURANT
RELEVANT CLAIMANT: KIRSTIE SHEREE TROUTMAN
Disputed Game Stamp: Double (Marlborough Street)
Alleged Date of Acquisition: The first two or three weeks of the promotion, but before 25 June 1999
395 Sharyn Angela Davey has worked at Loganholme since 1990, save for a period between December 1996 and May 1997. She has been manager since June 1997. She recalls both competitions. The roll of spare 1998 labels was discarded. The witness recalls throwing it into a bin. She has not seen it since the end of the competition. Ms Davey was responsible for ordering packaging stock during 1998 and 1999. This involved her in stocktaking for the purposes of ordering. She did not see or count any 1998 competition stock during 1999. She was also present for deliveries and was involved in approximately six month-end stocktakes over the year prior to September 1999. She neither saw nor counted any 1998 competition stock in that time.
396 At the end of the 1998 competition some game cups, fry boxes and hash brown bags remained. The hash brown bags were disposed of at the beginning of the run-out period. She threw them out. The cups and fry boxes were used in the period immediately following the end of the competition. Jenny Wong first removed the stamps. There was a full field follow-up inspection in September 1998. Before this occurred, the stockroom was thoroughly cleaned. The witness was involved in this process and did not see any 1998 competition stock. She would visit the stock room about ten times per shift. She neither saw nor used any 1998 competition stock during the 1999 competition.
397 Sarah Renee Doblo has worked at Loganholme since September 1997. She recalls both competitions. She did not see or use any packaging other than purple packaging during the 1999 competition. She was not cross-examined.
398 Janice Olive Pijacun has worked at the restaurant since July 1997. She recalls both competitions. She did not see or use any packaging during the 1999 competition other than the purple packaging. She was not cross-examined.
399 Caroline Ting had been owner-operator of the Loganholme restaurant for twenty months prior to September 1999. She recalls both competitions. In each competition the restaurant received at least one roll of spare labels which was kept in the manager's office. She believes that the 1998 roll was thrown out but cannot recall if she attended to that personally. She performed the month-end stocktake on 1 January 1999 and did not see or count any 1998 packaging. Some stock remained at the end of the 1998 competition, but it was used up in the period following the promotion. At her instruction the game stamps were first removed by her sister, Jenny Wong, who is a second assistant manager. She neither saw nor used any 1998 competition stock during the 1999 competition.
400 Jenny Ming Wong is the second assistant manager at Loganholme. She had worked at Loganholme for twenty-two months prior to October 1999. She recalls both competitions. At the end of the 1998 competition she took the remaining stock home. Over the course of about two days, she removed the game stamps. The competition stock was then taken back to the restaurant and used until it was exhausted.
RELEVANT CLAIMANT: TRACEY ANN HODGES
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Double (Coventry Street)
Alleged Dates of Acquisition:
(1) Late June or early July 1999
(2) One or two weeks after obtaining Park Lane Stamp, and one or two days before 18 July 1999
401 Tracey Lee Attrill has been the first assistant manager since July 1999 and had been working at the restaurant for three years prior to September 1999, save for the period from September 1998 to June 1999 when she was at Beenleigh. She recalls both the 1998 and 1999 competitions. The backs of the 1998 stamps were red and those of the 1999 stamps, yellow. She recalls one roll of spare labels being delivered to the restaurant for the 1998 competition. It was kept in the manager's office. She did not see it again after the end of the 1998 competition. She recalls that rolls of spare labels were kept in the office during the 1999 competition. During the 1998 competition promotional material and generic stock were stored together, but the generic stock was put to the back. In some cases it was stored in the first drive-through booth. She recalls that at the end of the 1998 competition a small quantity of promotional packaging remained. She peeled the stamps off it and it was used within a week. She did not see any 1998 competition stock during the 1999 competition. In the course of cross-examination she said that during the 1999 competition she ensured that the "first in-first out" stock rotation procedure was followed. She did not see any red stamps in the course of the 1999 competition.
402 Nyree Jessie Colledge has been the restaurant manager at Loganlea since it opened in August 1997. She recalls both competitions. The colour of the backing of the stamps in 1998 was red and in 1999, yellow. The packaging was also different in each year. Ms Colledge received one roll of spare labels in 1998. It was kept in the manager's office and used when stamps were missing from promotional packaging. Following the 1998 competition approximately three quarters of the roll remained. She put this in the kitchen bin, tied off the garbage bag and disposed of it in the industrial container at the rear of the restaurant. At the end of the 1998 competition a small quantity of fry boxes and large cups remained. The game stamps were removed and the stock used in the restaurant. The witness has carried out month-end stocktakes since the 1998 competition and has not seen any 1998 promotional material.
403 The witness was cross-examined concerning the apparent transfer into the restaurant during the 1999 competition of a substantial quantity of promotional material. This is said to raise the possibility that a transferring restaurant may have sent 1998 stock rather than 1999 stock. She said that at Loganlea, transfers are double-checked because they have to be taken into the stocktake and entered into the computer.
404 Two other witnesses gave evidence and were not required for cross-examination. Belinda Glindemann worked as a swing manager at Loganholme, Beenleigh, the Hyperdome and Loganlea. Her evidence related to a conversation which the claimant alleges that she had at this restaurant. I have not treated that conversation as being of any significance and so it is not necessary that I deal with it. Melissa June Meeds has worked at Beenleigh, the Hyperdome and Loganlea since 20 September 1995. She recalls both competitions. During the 1998 competition she was a crew person, regularly working at the front counter and drive-through. During the 1999 competition she was a trainee manager. In that latter capacity she was frequently in the stock room. She recalls that in the 1998 competition the stamps were red and in 1999, yellow. The packaging material was a different colour in each year. In 1999 it was purple. She neither saw nor used any 1998 competition stock during the 1999 competition. The only packaging which she saw during that competition was the purple packaging.
RELEVANT CLAIMANT: DARREN ALAN IRWIN
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: Between 4 and 16 June 1999
405 On the M4 Motorway (near Sydney) there are two restaurants, one on the eastbound, (or city-bound) side and one on the westbound side. The respondent, in its written submissions, urges that the applicant has particularised only the Westbound restaurant as relevant, but the applicant's submissions proceed upon the basis that both restaurants are relevant. I will treat both restaurants as relevant for present purposes.
M4 Motorway Westbound
406 David Ciantar is an operations consultant with the respondent. He is responsible for both M4 Motorway restaurants and Minchinbury. As a part of his responsibilities he regularly checks stock and inspects stock rooms. He has been performing this function since September 1998. He has not seen any 1998 Monopoly promotional packaging at any of the restaurants under his control. He did not see any 1998 promotional packaging during the 1999 competition at any of these restaurants. He also did not see any red game stamps being used at any of the restaurants during the 1999 competition.
407 Lesley Ann Knight has been the manager since 1 December 1998. From 1 October 1997 to December 1998 she was manager at Penrith High Street. Since the end of the 1998 promotion she has not seen any 1998 promotional stock. She has conducted monthly stocktakes during that period. During the 1999 promotion, the roll of spare labels was kept in the safe. She did not see any 1998 Monopoly packaging being used during the 1999 promotion, nor did she see any 1998 game stamps at the restaurant during the 1999 promotion.
408 Amanda Ann Torbi has been the ordering manager since October 1999. She did not see any 1998 Monopoly promotional stock at the restaurant in the course of the 1999 competition.
409 Brendan James Suckling is the restaurant manager at Minchinbury. He worked at M4 Motorway Westbound from May 1997 until August 1999. He was acting restaurant manager between December 1997 and December 1998. During the 1998 promotion a roll of spare labels was kept in the manager's office. By the end of the 1998 competition the restaurant had used all of the labels on the roll. On some occasions thereafter, when promotional stock was exhausted, he removed labels from Monopoly cups and gave them to customers with generic fry boxes. From the end of the 1998 competition until he left the restaurant, he did not see any 1998 Monopoly labels in the safe in the manager's office or elsewhere. After the end of the 1998 promotion, game stamps were removed from Monopoly promotional packaging. These stamps were discarded. The packaging was then used. This was done for a couple of days after the end of the promotion. He has not seen any 1998 Monopoly promotional packaging at the restaurant since that time. He agreed that red food redemption stamps were presented in 1999.
M4 Motorway Eastbound (or City-bound)
410 Sean Lester Heathcoate has been the manager since mid-1997. He reports to Mr Ciantar whose evidence is summarised with the evidence relating to M4 Motorway Westbound. It is also relevant to this restaurant. Mr Heathcoate has done month-end stocktakes since the end of the 1998 Monopoly promotional competition and has not seen any 1998 stock. Stock records show that there was one carton of medium fry boxes left at the end of August 1998. It was gone by the end of September. It was either thrown away or used after the end of August. The records also show that at the end of September 1998 the restaurant held 750 large fry boxes, but none at the end of August. Mr Heathcote considered that this must have been an error, probably as a result of his entering incorrect data into a computer. He has not seen any 1998 stock at the restaurant since mid-September. He saw none during the 1999 promotion. He does not recall what happened to the 1998 roll of spare labels, but he has not seen it since the end of the 1998 promotion. During the 1999 promotion a roll of spare labels was kept in the safe. It contained 1999 stamps, not 1998 stamps.
411 He said in cross-examination that a carton of medium fry boxes would be used in three to four days; a carton of 2000 hash brown bags in a few days; a carton of 800 large cups in two days; a carton of 1000 medium cups in about two days; a carton of large fry boxes in about two days; a carton of 2000 medium fry boxes in between two and four days; a carton of 1200 apple pie boxes in about a week; and a carton of 1200 cherry pie boxes in about a week. In support of his assertion that the 750 large fry boxes were not in the cage, he said that he entered the stock cages each day that he worked. He did not recall the difference between 1998 and 1999 stamps and did not know the difference "at the time", presumably at the time of the 1999 competition. He said that no stamps remained in the safe during the last few months of 1998 and that the stamps used in 1999 were those received for that year's competition.
412 Jo-Anne May Barty is a swing manager. From before the 1998 Monopoly competition until about April 1999, she was the manager rostered to supervise delivery of stock. It was her responsibility to ensure that all packaging stock was rotated before each new delivery, using the "first in-first out" procedure. Promotional stock was clearly marked and was put at the front of the shelves in the stock cage. From September 1998 until April 1999 she inspected the stock cage regularly and saw no 1998 Monopoly promotional packaging. She occasionally worked at the Westbound and Minchinbury restaurants. She saw no 1998 stock at either restaurant during the 1999 promotion. It seems, however, that her time at these other restaurants was minimal. The 1998 cups were blue and the 1999, purple. The fry boxes were similar. She could not recall whether there were differences in the colours of the cartons in which the packaging stock was delivered. She said that as far as she knew, no rolls of spare 1998 labels were in the restaurant after the end of the 1998 promotion.
MACKAY RESTAURANT (ALSO KNOWN AS CITY EXPRESS)
RELEVANT CLAIMANT: JAMIE ALEXANDER SILK
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 10 June 1999
413 Brent Stuart Gilmour has been the supervisor of the North Mackay, East Mackay and City Express restaurants since 1997. The last-mentioned is the restaurant relevant to Mr Silk's claim. At the end of the 1998 competition only a small amount of promotional packaging remained at the restaurant. Mr Gilmour moved it to East Mackay. It was used there without labels. Each restaurant had one roll of spare labels for use in the 1998 competition. At City Express this was kept in the safe. He cannot recall what happened to it, but he has not seen it since the 1998 competition. He saw no 1998 competition stock during the 1999 competition.
414 Fiona Jayne Miller has worked at the restaurant since October 1998 and been restaurant manager since January 1999. She recalls both competitions although she was not at the City Express restaurant during the 1998 competition. She was involved in four or five month-end stocktakes at that restaurant from January 1999. She did not see or count any 1998 monopoly stock. She recalls a male customer who regularly patronized the restaurant. He worked at Electric Dreams nearby. He came into the restaurant on one occasion, saying something like, "I've won. I've won a car.". He showed her Mayfair and Park Lane stamps, drawing her attention to the fact that one of the stamps was quite faded. She asked him how it had become faded. He said that he had found it at the bottom of his car. It may reasonably be inferred that the man was Mr Silk. The witness knew him as Jamie. I am inclined to accept Ms Miller's evidence as to the conversation, particularly given the condition of the stamp.
415 Ronald Leonard Reseck is the owner-operator of the City Express restaurant and also of the North Mackay and East Mackay restaurants. He visits the City Express restaurant two to five times per week, checking the stock room amongst other things. He recalls both competitions. At the end of the 1998 competition, any remaining stock was used during the run-out period. He cannot recall if game stamps were removed. He has not seen any 1998 competition stock since the end of the competition.
416 Kelly Louise Thompson had been a swing manager at the City Express restaurant for about eighteen months prior to September 1999. She recalls both competitions. The restaurant received a roll of spare labels for use in 1998. It was kept in the manager's office. She cannot recall what happened to it at the end of the competition but she has not seen it since then. She was the manager on duty at the end of trading on the night before the 1999 competition started. She took the generic stock from the dispensers, boxed it up and replaced it with 1999 Monopoly stock. She saw no 1998 competition stock during this process. She has not seen any 1998 competition stock in the restaurant since the end of the run-out period for that competition. Whenever she opens the restaurant in the morning, she stocks up every item on the floor. She regularly did so over the twelve months prior to September 1999.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
417 Mikhaila Chalmers is supervisor of the Maddington, Kelmscott and Armadale restaurants in Western Australia and had been for two years prior to 1 October 1999. She aims to maintain stock levels at a minimum and pays particular attention to such levels during promotions to ensure that all stock is run down before they end. She regularly visits the stock room at Maddington. The restaurant ran out of some promotional material during the 1998 promotion and used the roll of spare labels. By the end of the promotion the roll had been exhausted. It had been kept in the safe in the manager's office. During the 1999 promotion she did not see any 1998 promotional stock at Maddington or at either of the other restaurants which she supervises. There were transfers in and out of the restaurant in the course of the 1999 competition, but the witness was adamant that she had not seen any 1998 packaging. Transfers would normally have come from Kelmscott or Armadale. The witness said that there was no 1998 stock left at either of those restaurants at the end of the 1998 competition.
418 Nicola Agostino has been manager at Maddington since April 1995. Maddington underwent a full field inspection in January 1999. The witness prepared the restaurant for it and did not see any 1998 promotional material whilst doing so. During the 1998 promotion, the restaurant ran out of promotional packaging in some lines. Labels from the roll were used. The roll was exhausted. Hash brown bags were then handed out with other purchases. At the end of the Monopoly promotion, only a few hash brown bags remained. They were used within a few days. In 1999 the labels on the roll of spare labels were yellow. She did not see any 1998 packaging or stamps at the restaurant during the 1999 promotion. Any transfers to Maddington would probably have come from one of the other restaurants in common ownership, which are those mentioned above.
(A) RELEVANT CLAIMANT: BRONWYN DOONG
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 14 June 1999
(B) RELEVANT CLAIMANT: SCOTT KENNETH HARRIS
Disputed Game Stamp: Single (Marlborough Street)
Alleged Date of Acquisition: 11 June 1999
419 Brian Lennard Davidson has been supervisor of both the Marsden and Browns Plains restaurants for between four and five years. He is fully familiar with the operation of both restaurants. He recalls both the 1998 and 1999 Monopoly competitions. The backing on the stamps in the 1998 competition was red and in 1999, yellow. He cannot recall whether a roll of spare labels was received at either restaurant for use in the 1998 competition. However both restaurants received spare labels for use in the 1999 competitions. The rolls were kept in the safe. Over the year prior to 30 September 1999, the witness performed almost 80 per cent of the monthly stocktakes at Browns Plains. He does not do stocktakes at Marsden. He has not seen or counted any 1998 Monopoly stock since the end of the 1998 competition. Stocks of promotional packaging were run down at the end of the 1998 competition so that all remaining packaging was used up in the run-out period following the end of the competition. There was no 1998 competition packaging in either the Marsden or Browns Plains restaurant during the 1999 competition. He regularly visits the stock storage areas in both restaurants and is aware of the stock held at each.
420 In 1998 a small amount of stock was left over. Staff removed the stamps and used the stock. It is not immediately clear whether the witness was talking about Marsden or Browns Plain, but I assume that it was Browns Plains as he seems to have had a closer association with that restaurant. He denies that there was any 1998 material in either restaurant during the 1999 competition.
421 Kylie Nicole Seipel was the restaurant manager at Marsden from November 1995 until November 1999. She is now at Browns Plains. She recalls both competitions. The colour of the packaging used in the 1999 promotion was purple. Stock was rotated and used on a "first in-first out" basis, the date of delivery of each carton being identified from a delivery docket attached to it. She said that before fresh stock was received, existing stock was brought to the front of the shelves. The fresh stock was then put to the rear. Each opened carton was used before another was opened. She performed stocktaking duties at Marsden on various occasions throughout 1998 and 1999. Stock levels were kept at a minimum to maintain positive cash flow. Total turnover of packaging stock occurred about every ten days. At the end of each month she would conduct a comprehensive month-end audit of all stock. As part of this process, she counted and checked all packaging material held in the stock room and at the service counters. She did not see any 1998 Monopoly promotional packaging after the end of that competition. In particular she saw no such packaging during the 1999 competition.
422 At the end of the 1998 competition, a small amount of promotional material remained. The witness instructed staff to use that material during the run-out period. The promotional packaging was used up in that way. At some stage during the run-out period, Ms Seipel addressed the question of whether or not she would be able to use all of the remaining packaging during that period or whether she should transfer some to another restaurant. She decided that it was not necessary to do so and recalls that all was used within the first week of the run-out period.
423 The Marsden restaurant received one roll of spare labels during the 1998 competition. It was kept in the safe. Relatively few of the labels were used. She cannot now remember what happened to the roll at the end of the promotion. She had access to the safe on a daily basis and says that at some time around the end of the 1998 promotion, in late August or early September, she "stopped seeing the spare roll of stamps". She has not seen it since. She saw no such roll in the restaurant again until the 1999 promotion. A roll was delivered for the purposes of that promotion. In her oral evidence she said that since swearing her affidavit she had been presented with one 1998 food redemption stamp. This was at Browns Plains. She said that she received it a week or two after swearing her affidavit on 3 February 2000. She said in cross-examination that she would have transferred hash brown bags into the Marsden restaurant during the 1999 competition.
424 The other witnesses from Marsden were not cross-examined. Matthew Karl Laurentsch has worked for McDonald's since about 1993. He worked at Marsden between March and mid-August 1999 but otherwise has worked at Browns Plains. He recalls both competitions. The game stamps in 1998 had a red backing and in 1999, a yellow backing. During the course of the 1999 Monopoly competition he did not see any promotional packaging other than the 1999 competition packaging.
425 Nicole Lee-Anne Chirn has been employed at Marsden since February 1997. She recalls both competitions. The 1998 promotional material was a different colour from that used in 1999, which was purple. She recalls that the stamps used in 1998 had red backs and those in 1999, yellow. A small amount of packaging was left over after the 1998 promotion. It was used up during the run-out period. She recalls the roll of spare labels provided in 1998. She thought that very few had been used. The roll had been kept in the manager's safe throughout the competition. Since January 1999 she has been responsible for comprehensive stock checks each week for ordering purposes. In this process she checks and counts every item of packaging stock held in the store room. At no time between January 1999 and the commencement of the 1999 Monopoly promotion did she see any 1998 Monopoly promotional stock or game stamps. The only Monopoly promotional packaging she has seen since the end of the 1998 competition is the purple packaging with yellow backed stamps used in the 1999 competition.
426 Hayley Amber McVicar presently works at Browns Plains, but between December 1996 and the end of 1999, was employed at Marsden. Her duties included serving at the main counter and at the drive-through facilities. She recalls both competitions. On 14 June 1999 she worked between 10.00 am and 3.30 pm. She recalls that the predominant colour of the packaging used for the 1998 competition was light green or turquoise. That used in the 1999 promotion was of a different colour. She did not see any of the 1998 promotional material during the 1999 competition.
427 Rebecca Susan Bone has worked at the Marsden restaurant since March 1997. She recalls both competitions. She was working at the restaurant on 14 June 1999, from 4.00 pm until 7.00 pm. The predominant colour of the packaging used in the 1998 competition was different from that used for the 1999 competition. The latter was purple. The game stamps for the 1999 promotion had yellow backing. During the 1999 promotion she saw only the purple packaging and yellow-backed stamps.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
428 Terence William Creasey has owned and operated the Melville restaurant since December 1997. He is at the restaurant almost every day and spends time on the floor, serving and assisting his employees. He also inspects all areas of the restaurant, including the stock room. It is his aim to avoid carrying excess stock. All of the Monopoly promotional packaging in the 1998 competition was used during the promotion and the run-out period. He has not seen any in the restaurant since that time. Until December 1998 he performed each month-end stocktake in conjunction with his restaurant manager, Bradley Stannard. He did not see any 1998 promotional material after the end of the competition. During the 1999 promotion he did not see any 1998 packaging or game stamps.
429 In his oral evidence he said that the restaurant underwent a full field inspection in December 1998. One month prior to the inspection, the consultant walked through the restaurant, pointing out matters which required attention. Some work was required in the store room. As a result, in November 1998 all stock was removed. The shelving was taken out of the restaurant, cleaned and then replaced. There was very little stock in the restaurant at that time.
430 Bradley James Stannard has been the restaurant manager at Melville since February 1999. During the 1998 promotion the restaurant ran out of all promotional packaging by the end of the run-out period. He has not seen any 1998 Monopoly promotional packaging since that time. During the 1998 competition the restaurant received two rolls of labels which were kept in the manager's office. All labels were used during the promotion. The witness attempted to obtain a third roll but was unable to do so. He has undertaken all month-end stocktakes since he has been at Melville. Since the end of the 1998 promotion he has not seen any 1998 Monopoly stock. He recalls the full field inspection in November 1998 and that in preparation for it, the stock room was emptied of all stock and the shelving removed. He did not see any 1998 packaging in the course of this process, nor did he see any 1998 Monopoly packaging or game stamps supplied to customers during the 1999 promotion. He was cross-examined concerning transfers of stock. Although there is evidence of transfers from the restaurant, there is no evidence that it received stock transfers. Mr Stannard thought that managerial staff would have detected any attempted transfer of old stock to the restaurant.
RELEVANT CLAIMANT: DARREN ALAN IRWIN
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: Between 4 and 16 June 1999
431 Naomi Gwendoline Harrison is a training consultant with the respondent. For three years she was the restaurant manager at Minchinbury. She was present in the restaurant during both competitions, working about fifty hours per week. Some packaging remained at the end of the 1998 competition. She removed the stamps and it was then used in the restaurant. That took about a week. She cleaned out the stock room at least twice between the two competitions, pulling out all shelves and re-packing them. She did not see any 1998 Monopoly packaging. With three exceptions, she carried out each month-end stocktake, counting every box. When she did not do so, David Ciantar (M4 Motorway) would have carried out the stocktake. Although the stock records show that as at 31 August there was one carton of Monopoly promotional medium fry boxes in stock and 1500 such boxes as at 30 September, she thought that these entries were erroneous. She based this view upon her own observations. She said that because the cost of promotional and generic material was the same, she would not necessarily have discriminated between them in her stocktakes.
432 She recalls the roll of spare labels used in the 1998 competition. It was kept in the safe in the manager's office. She does not know what happened to it. However she cleaned out the office about once a month. She did not see the roll after the end of the competition. She only ever saw purple packaging with yellow labels during the 1999 competition. She also saw a roll of spare yellow labels.
433 In a supplementary affidavit Ms Harrison referred to the receipt from Walkers on 15 August of two cartons of cups and one carton of fry boxes. She cannot remember these deliveries but considered that within a week or perhaps a few more days, all such stock would have been used.
434 Rita Di Maria has been first assistant manager at Minchinbury since May 1999. During the 1999 competition she saw only purple Monopoly packaging distributed at the restaurant. She did not see any rolls of 1998 Monopoly labels used during the 1999 promotion. The 1999 packaging was purple. The 1998 packaging was red and blue. She performed the stocktakes in May and June of 1999. There was no 1998 stock in the restaurant at that time. She was aware of differences in the cartons in which the packaging was supplied and differences in the WRIN codes.
435 Michael James Koller is a swing manager at Minchinbury. He worked full time during both promotions. During the 1998 promotion he was the "Walkers boy". He placed the orders. This involved stocktaking prior to each order. The stocktake figures were fed into a computer which then calculated quantities to be ordered. The order was again checked against a stocktake. During the latter weeks of the 1998 promotion, ordering levels were reduced to avoid the restaurant being left with substantial amounts of unused packaging. At the end of the promotion the packaging was run down as far as possible. Naomi Harrison then removed labels from the remaining packaging, and it was used. To the best of his knowledge all packaging from the 1998 promotion was exhausted. He also recalls the restaurant using all of its roll of spare labels. I understand par 12 of his affidavit to assert that fry boxes were in short supply and so the spare labels were used with generic packaging. During the 1999 promotion the witness saw only purple packaging at Minchinbury. He recalls a roll of spare labels being used in 1999. The labels were yellow. He particularly remembers their being used when the restaurant ran out of apple pie and cherry pie boxes.
436 Fiona de St Germaine was employed as second assistant manager at Minchinbury for two years until approximately mid-August 1999, including both promotions. From the beginning of 1999, she worked as stock control manager. She conducted a stocktake each week. There were also nightly stocktakes. Her weekly stocktakes disclosed no 1998 Monopoly stock in the Minchinbury restaurant from the time she took over the role of stock control manager. She would rotate stock on a weekly basis when doing the Walkers orders. Stock was also rotated on Wednesdays and Saturdays when orders were delivered. Older cartons were brought to the front. She was also responsible for ensuring that promotional packaging was at the front of the shelves so that it would be used rather than generic packaging. During the 1999 promotion she saw only the deep purple 1999 Monopoly promotional packaging being used in the restaurant.
437 In the course of cross-examination she said that she had, on one occasion, been aware of fry boxes from previous promotions being kept in the store room. She was quite confident that they were not Monopoly stock, but were from a "burger promotion" with matching fry boxes. She did not see the 1998 roll of spare labels after the end of the promotion. She recalls receiving a few red food stamps for redemption in the course of the 1999 competition. She said variously that they amounted to "not more than 15 per cent", "only a few", "not a lot", or "just a few" on a clip. (See TS 3798 lines 18-20.)
438 Mr Ciantar was the consultant for Minchinbury. He did not see any 1998 promotional packaging in the Minchinbury restaurant during the 1999 promotion. He was cross-examined extensively about the Minchinbury restaurant, mostly concerning stock records as at the end of August 1998. He considered that the two thousand medium fry boxes shown as present in the restaurant at the end of August were probably generic stock which had been wrongly recorded. His recollection was that the Minchinbury restaurant was doing such a high volume of business at that time that it would have exhausted its promotional material at the end of the competition and immediately received generic stock. The 1500 boxes held at the end of September were probably also generic stock.
(A) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
(B) RELEVANT CLAIMANT: JOSEPH TERENCE WAYNE WHITTAKER
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Between 10 - 25 June 1999
439 Cameron James Brown had worked at the Mt Gravatt restaurant for two and a half years prior to September 1999. He recalls both the 1998 and 1999 competitions. The stamps used in 1998 were red and those in 1999, yellow. He recalls the roll of spare labels in 1998. It was kept in the manager's office . The labels were used with non-promotional hash brown bags. He recalls that in 1998, the restaurant used up almost all of its 1998 competition packaging and then used up the remaining stock shortly after the end of the promotion. He has been involved with Walkers deliveries since about March 1999. During the 1999 competition he took only 1999 promotional stock from the stock room for use on the restaurant floor. He has not seen or used any 1998 promotional packaging at the restaurant since the end of the 1998 promotion.
440 Bradley Harold Mourilyan had been first assistant manager at Mt Gravatt for about a year-and-a-half prior to September 1999. His responsibilities included ordering, hiring, month-end stocktakes, stock transfers and floor control. He recalls both competitions. In 1999 the packaging was purple and the game stamps, yellow. In the previous year the packaging was a different colour, The game stamps were red. He recalls there being at least one roll of spare labels at the restaurant in the 1998 competition. It was kept in a safe in the manager's office. The labels were used when the restaurant was running low on promotional stock. He recalls affixing them to generic fry boxes. There were labels left on the roll at the end of the 1998 competition. The restaurant ran out of promotional stock about one week after the end of the competition. He did not see any 1998 spare labels or promotional packaging after that time.
441 He was responsible for ordering stock during the 1998 competition and is still so responsible. Before placing an order he determines the level of stock in the restaurant, doing a stocktake of the full boxes in the stock room. He is also responsible for stock rotation. He did not see or use any 1998 competition during the 1999 competition. He considers that he would have seen it if it were there. He spends at least five hours per week in the stock room and is thoroughly familiar with its contents. In cross-examination he said that the remaining labels on the 1998 roll were to be disposed of by the manager. He was not actually present when the restaurant manager did so, but "I did see him take it away." The witness apparently saw the manager walk towards the owner-operator's office with the roll.
442 Mr Mourilyan saw two or three red food redemption stamps in the restaurant during the 1999 competition. They were quite old and tattered. Although he was not absolutely sure, he thought the 1998 packaging was aqua-green. The cartons in which the packaging were supplied were the same colour in each year, but they bore a different coloured stamp in each year. He also knew that the WRIN codes were different. Although he was unable to say certainly that there were no 1998 stamps in the restaurant in 1999, he was certain that they were not used. I take this to mean that he knew of no stamps being in the restaurant in 1999. He said that when the cartons of new stock were opened in 1999, he checked to make sure that the stamps were yellow because, in 1998, some of the packaging was delivered without stamps.
443 Graham Slennett-Roberts has been the owner-operator of the Mt Gravatt restaurant for seventeen years. He recalls both competitions and that the backing of the stamps in 1998 was red and in 1999, yellow. He recalls making sure, at the end of the 1998 competition, that the promotional stock had been used. It was used up within about three weeks after the competition had finished. He did not see the 1998 roll of labels after the end of the competition. He did not see any of the 1998 stock during the 1999 competition. He is regularly in the restaurant and has seen no 1998 competition stock on the premises.
444 Mark Robert Slennett-Roberts has been restaurant manager since February 1999. He was at another restaurant in 1998. He recalls both competitions. The packaging in 1999 was purple and the backs of the stamps, yellow. During the 1998 promotion the game stamps were red. The packaging was a different colour from that in 1999. He personally counts all paper stock in the restaurant at the end of each month. He has not seen or counted any 1998 competition packaging "since I arrived at this restaurant". He said that when he started at Mt Gravatt, he went through the stock room carefully and did not see any 1998 competition stock. In 1999 the rolls of spare labels were barely used. He randomly checks the stock room at least twice a week to ensure stock rotation. He checks the delivery stickers on the boxes. A small number of red food redemption stamps were presented during the 1999 competition. The roll of spare 1998 labels was not in the restaurant when he arrived in 1999.
445 This restaurant is said to be the source of at least one disputed stamp allegedly received by Mr Leishman and may be the source of the disputed stamp relied on by Mr Whittaker. Each claim faces significant problems which I will deal with elsewhere. Neither offers much support for the other.
NEWMARKET RESTAURANT (INCORRECTLY DESCRIBED BY MR LEISHMAN AS ALDERLEY)
(A) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel (Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
(B) RELEVANT CLAIMANT: JOSEPH TERENCE WAYNE WHITTAKER
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Between 10 and 25 June 1999
446 Nicole Ann Briais had worked at the Newmarket restaurant for five years prior to September 1999. She recalls both competitions. The promotional material used in 1998 was light blue. That used in 1999 was purple. During the 1999 competition she did not see light blue 1998 packaging in the restaurant. The 1998 game stamps were red and the 1999 stamps, yellow. She recalls the roll of additional labels used in 1998. She does not know whether any labels remained at the end of the competition.
447 Michael John Andrew Harvey has worked at the Newmarket restaurant since April 1997. He recalls both competitions. The packaging was purple in 1999 and a different colour in 1998. At the commencement of the 1998 and 1999 competitions, generic stock was taken off the shelves and stored at the back of the store room with a notice attached saying "Don't Use". At the end of the 1998 competition there was very little competition packaging left. He recalls there being approximately one box of large cups and one box of large fry boxes. It was all used up following the end of the promotion. There was no 1998 stock at the restaurant during the 1999 competition. He based this assertion upon his observations of the stock room which he entered on a daily basis.
448 The Newmarket restaurant closed down for about a week in May 1999 and was relocated to a new site adjacent to the old one. He participated in moving stock from the old restaurant to the new and did not see any 1998 promotional stock. Some old promotional items, such as toys, were transferred, but no packaging was transferred. There was no 1999 promotional stock in the restaurant at the time of the transfer to the new restaurant. Such stock was delivered directly to the new restaurant.
449 Anne-Marie Therese McClarty has been the assistant manager at Newmarket since early February 1999. In 1998 she was at the Transit Centre restaurant. She recalls both competitions. The 1999 competition packaging was purple and the 1998, blue. She was responsible for ordering stock between February and mid-July 1999. Each week she did a general stocktake before ordering. In company with the manager, she also undertook the month-end stocktakes on 1 May, 1 June and 1 July 1999. At no time did she see any 1998 packaging. At the end of May 1999 the restaurant was relocated. It was closed for approximately one week. She was involved in moving the stock to the new restaurant. Stock had been run down to facilitate this process. All stock was taken out of the stock room and put on the front counter where it remained for about half a day. It was then carried over to the new restaurant. All items were checked and an individual decision taken as to whether each item should go to the new restaurant. She saw no 1998 competition stock then or during the 1999 competition. She was responsible for supervising the running down of stock prior to the transfer. The game stamps in 1998 were red. She could not remember the colour of the 1999 stamps. She similarly recalled that the roll of spare labels in 1998 bore red labels, but she could not remember the colour of the labels on the 1999 roll.
450 Belinda Anne Taylor became second assistant manager at Newmarket in April 1997. Since September 1999 she has occupied the position of first assistant manager. She recalls both competitions. She was responsible for ordering during the 1998 competition and until the end of October 1998. In the ordering process it is necessary to check stock levels. After the old restaurant closed down, she helped to move the stock to the new restaurant. This was between 1 and 4 June 1999. The stock was either carried to the new restaurant or taken by vehicle. She did not see any 1998 Monopoly packaging during the transfer. She recalls that there was a roll of spare labels in 1998 which was kept in the safe. She did not use it and did not see it again after the end of the competition. She saw one roll of labels during the 1999 competition.
451 Both Mr Leishman and Mr Whittaker claim to have received disputed stamps at this restaurant. Both claims face difficulties which I will discuss elsewhere. Neither claim offers much support for the other.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
452 Michael Manika is the licensee of the restaurant and of another restaurant at Garden City Shopping Centre in Booragoon. He spends at least four hours per day, seven days each week in the O'Connor restaurant and was present during both the 1998 and 1999 promotions. Usually, only one carton of a particular type of packaging is open at any one time. During the 1998 competition promotional packaging was kept in the manager's office. All packaging was used up by the end of the promotion. He has not seen any 1998 packaging since September 1998. He recalls that there was a roll of spare labels in the restaurant during the 1998 competition. It was fully used before the end of that competition. The restaurant received two rolls of spare labels for the 1999 competition, one of which was used. The labels on it were yellow. He cannot recall what happened to the second roll. He has not seen any 1998 packaging in the restaurant since September 1998.
453 Timothy Bunyan has been the restaurant manager since July 1998. He had been at the O'Connor restaurant for just under four weeks when he went on long-service leave during August and September 1998, returning to work in October 1998. During the 1998 promotion the packaging was kept in the manager's office. He was not present at the restaurant at the conclusion of the competition. After he returned from long service leave, he cleaned out the stock room. He looked under shelving to check the floor and saw two or three individual Monopoly fry boxes which had been stuck together. He raised their presence at a managers' meeting, apparently as a question of maintenance, and then disposed of them. He has not seen any other 1998 promotional packaging in the restaurant since he returned from leave. He cleaned the restaurant thoroughly in January 1999 and did not see any such material. He was responsible for ordering stock between February and May 1999. In the course of stocktaking for that purpose, he did not see any 1998 promotional packaging. During the 1999 competition he saw only 1999 packaging in the restaurant. There were two rolls of labels used in the restaurant in 1999. They were yellow. In cross-examination he agreed that some red food redemption vouchers had been presented in 1999. He saw one.
454 Shane Carmelo La Macchia has been first assistant manager at O'Connor since June 1998. For a period commencing late in July and ending at the beginning of October 1998 he was acting restaurant manager. He was responsible for ordering stock until the middle of February 1999. He remembers both competitions. During the period in which he was responsible for ordering, that is June 1998 to February 1999, he checked the stock room four days after each delivery when preparing the order for the following week. He also checked that the correct packaging was being used in the correct order. Until May 1999 he also conducted month-end stocktakes. He said that in the 1998 competition, promotional packaging was used up before the end of the promotion. About two days before the end, they commenced to use spare labels on generic packaging. The roll of spare labels was used up. He carried out month-end stocktakes for August and September 1998 and did not see any promotional packaging.
455 He attended a manager's meeting at which Mr Bunyan produced some items of promotional packaging found beneath the shelves. Apart from that occasion the witness has not seen any 1998 packaging since the end of the 1998 competition. In January 1999 employees pulled out all of the contents of the restaurant and cleaned it from top to bottom. He saw no 1998 Monopoly packaging. During the 1999 promotion he saw only purple packaging with yellow stamps. He recalls there being rolls of spare labels in 1999. They were yellow. He said at TS 3004 ll 34-37 that a couple of weeks after the 1998 promotion finished, he was asked whether any 1998 stock remained in the restaurant. It seems that at that time, there was none. A couple of children submitted red food stamps in the course of the 1999 competition.
RELEVANT CLAIMANT: ANNE-MARIE CROSSE
Disputed Game Stamp: Double (The Angel Islington)
Alleged Date of Acquisition: 6 July 1999
456 Meighan Jenine Nash has been the manager of the Oxley restaurant since November 1998. She recalls both the 1998 and the 1999 competitions. During the 1998 competition she was manager at the Toowong restaurant. Before the 1999 competition began, all standard generic stock was taken off the floor at Oxley and replaced with promotional stock. The policy of that restaurant is not to hold generic and promotional stock on the floor at the same time. Ms Nash strictly enforced this policy. When promotional stock was exhausted during the competition, she instructed staff to place labels from the roll of spare labels on generic packaging. Monthly stocktakes are conducted at the beginning of each month. Regular mid-month stocktakes are also carried out in most months, on about the fifteenth of the month. This would happen four or five times in each six month period. She has personally been involved in every month-end and mid-month stocktake since November 1998, except for the May and June stocktakes. At no time did she see or count any 1998 Monopoly promotional material. She also did not see any 1998 Monopoly packaging used within the restaurant during the 1999 competition. She was on leave from 24 May to 11 July 1999. In cross-examination she said that when she returned from vacation, she was told that red stamps had been presented for redemption.
457 Sandra Lee Anderson is a crew manager at the Indooroopilly restaurant but was a crew person at Oxley from April 1998 until late 1999. She regularly worked at the front counter or in the drive-through facility and often stocked the cup dispensers in both areas. She saw Monopoly promotional packaging of only one colour during the 1999 competition, although she was unable to recall that colour. She worked from 10.00 am to 2.30 pm on 6 July 1999. She was responsible for collecting food orders from the front counter for drive-through customers.
458 Christine Ann Wallace (see also Indooroopilly) was the manager at the Oxley restaurant for most of the 1999 competition. She saw only 1999 Monopoly promotional packaging at Oxley during the promotion. When working on any shift, she would check that the correct packaging was being used. She worked from 4.00 pm until closing time on 6 July 1999. Between 5.00 pm and 6.00 pm she would have been on the floor of the restaurant. She does not recall seeing any 1998 game stamps at the Oxley restaurant.
459 A number of other witnesses gave evidence concerning the Oxley restaurant. None of them was required for cross-examination. Matthew Anthony Groom is a crew trainer at Oxley. As at October 1999 he had worked there for about eighteen months. The packaging for the 1999 competition was purple. That used in the 1998 competition was a different colour. The back of the 1998 stamps was red. He did not see any 1998 Monopoly promotional stock prior to, or during the 1999 competition. His duties require him to go to the stock room every day when he is working. He cleans it two or three times a week. This involves tidying boxes, removing flaps, cleaning the floors and removing rubbish.
460 Jema Louise Wallace has worked at the Oxley restaurant since 1996. She is presently a crew trainer employed on a casual basis. She recalls both the 1998 and 1999 competitions. The 1998 competition game stamps had red backs and the 1999 stamps, yellow. The 1999 packaging was purple. During both competitions she worked at the front counter for the majority of her time at work. During the 1999 competition she did not see any 1998 packaging. She has not seen any such packaging in the stock room since the end of the 1998 competition. She was on duty from 3.00 pm to 7.30 pm on 6 July 1999, working in the drive-through service area. Her duties included collecting food orders from the front counter area for drive-through customers. On some occasions she would assemble orders for such customers and assist in serving at the front counter.
461 Jason David Cooper is now the restaurant manager at the Brookside restaurant, but from late 1997 until April 1999 he was the first assistant manager at Oxley. From April 1999 until December 1999 he was at the Stafford restaurant. In January 2000 he went to the Brookside restaurant. While at Oxley he inspected the stock room on each shift that he worked. He would check the dates on delivery labels to ensure that stock was being rotated appropriately. Rotation occurred twice a week, when new stock was received. His responsibilities included ordering stock so as to avoid carrying old or excess stock. Whilst a promotion was in train, he would always check at the commencement of the shift that the restaurant was using promotional packaging and that promotional packaging was being used before generic packaging. He paid particular attention to the levels of promotional stock to keep them as low as possible at the end of the promotion. There was little promotional material left at the end of the 1998 competition. It was used up within a few days. He did not see any 1998 stock at the restaurant following the run-out period at the end of the 1998 competition.
462 Christian McLeod Niblock is a crew trainer at the Indooroopilly Shoppingtown restaurant. From early 1999 until November 1999 he was a trainee manager at Oxley. Before that, he was employed at the Kenmore restaurant. During the 1999 competition he saw only purple Monopoly packaging with yellow game stamps at the Oxley restaurant. He worked from 4.00 pm until closing time on 6 July 1999. He was responsible for running that shift. He would have spent most of his time at the front counter but would also have conducted regular inspections of all areas of the restaurant.
PENRITH HIGH STREET RESTAURANT
RELEVANT CLAIMANT: JOHN WILLIAM BUCHTMANN
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: On or before 29 July 1999
463 Prior to 1 December 1998 this restaurant was operated by the respondent. Thereafter, it was operated by a licensee, Ian Ramond Garton. He has been closely involved in the conduct of the restaurant since taking over. Stock is used on a "first in-first out" rotational basis. Stock checks are carried out twice a week as part of the ordering process. Stock is turned over about once every ten days. A more comprehensive monthly check is carried out on or about the last day of each month. At take over on 1 December 1998, a stock audit was performed in the witness's presence. There was no 1998 promotional material in the restaurant. Mr Garton has not observed any such material in the restaurant since that time.
464 In cross-examination it was pointed out to him that in early June 1999 there had been a transfer in of 1500 large fry boxes. The transfer appears to have come from the Penrith Leagues Club. This amount of stock would probably have been used up in something over a day. A carton of large cups would last about a day or a little more, and a carton of apple pie boxes would last about a week, or perhaps a little less. There is also some suggestion that a carton of medium fry boxes was transferred from Penrith Leagues Club. Those boxes would have borne single stamps and so are not relevant for present purposes.
465 Kathryn Wildsmith commenced work at Penrith High Street on 1 December 1998 and has been restaurant manager since March 1999. She personally attended to the reorganisation of the storage facilities at the restaurant on or about 1 December 1998 and did not then observe any 1998 Monopoly promotional packaging. She has not seen any since that time. Her attention was drawn to a suggested transfer to the restaurant of large game cups. She did not recall any such transfer.
466 Yogarajah Tharmalingam has been employed as a kitchen hand at the restaurant since 1996. He has been responsible for unloading and checking Walkers orders. Prior to receiving stock he checks all existing stock and arranges it on a "first in-first out" stock rotational basis so that older stock is to the front. The sequence in which stock should be stored and used can be determined from a white delivery docket attached to each carton.
467 Two other witnesses also gave evidence relevant to this restaurant. One was David Ciantar (M4 Motorway). During 1998 he was the operations consultant for McDonald's at this restaurant, among others. One of his responsibilities was to check that correct procedures were being followed by each restaurant and that restaurants were operating with appropriate stock levels. He visited the restaurant three or four times each week and inspected the stock room during each visit. About once a week he would check the rotation of packaging stock, using the delivery dates on the cartons to make sure that stock was being used on a "first in-first out" basis. He recalled Penrith High Street using its 1998 Monopoly promotional packaging during the run-out period at the end of August 1998. His cross-examination is incorrectly reported in the transcript under the name "David Ganter". In the course of this cross-examination (at TS 3733), Mr Ciantar said that he had been involved in the hand-over/take-over stocktake on 1 December 1998. He was certain that there was no Monopoly stock in the restaurant at that time.
468 Lesley Elliott Ann Knight was the restaurant manager during the 1998 competition. She said that all remaining promotional stock was used up during the run-out period in the last two weeks in August. During that time the labels were removed from the packaging and disposed of separately. There was no promotional packaging left at the restaurant after the run out period. During the 1998 promotion the roll of spare labels was stored in the safe in the manager's office. There were no labels left by the end of the promotion. Ms Knight was also involved in the hand-over/take-over stocktake on 1 December 1998.
469 During Ms Knight's cross-examination, much time was taken up in examining the significance of entries in various stock records. The applicant sought to demonstrate that according to such records, the restaurant held Monopoly promotional packaging after the end of August 1998 which did not appear in the September figure. It is apparent from Ms Knight's cross-examination that the distinction between promotional and non-promotional material was not always strictly observed. The witness appears to have thought it likely that these figures were erroneous descriptions of non-Monopoly stock. This matter is discussed in the general considerations which appear at the beginning of my assessment of the restaurant evidence.
PENRITH LEAGUES CLUB RESTAURANT
RELEVANT CLAIMANT: JOHN WILLIAM BUCHTMANN
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: On or before 29 July 1999
470 John Frances Tourish has been the owner-operator of this restaurant since 23 September 1986. He owns a second restaurant known as Penrith Plaza which is not relevant for present purposes. The restaurant operates on a "first in-first out" stock rotational basis. Stock checks are conducted twice a week in order to assist in ordering. A total turnover of stock occurs on about a ten day basis. There is a month-end audit and stocktake by the restaurant manager. In 1998 most of the promotional packaging was used prior to the commencement of the run-out period. Initially, Mr Tourish directed staff to remove the game stamps from the material before using it. However, because of adverse customer reaction, he subsequently permitted the game stamps to be left on the products. All remaining material was used within the first few days of the run-out period. No 1998 promotional material was left in the restaurant following the promotion, and Mr Tourish has not seen any there since. The roll of spare labels was stored in the manager's office throughout the promotion. Most of the roll was used. The remainder was disposed of by placing it in the cardboard recycling unit in a secure yard at the rear of the restaurant.
471 Craig William Small has worked at Penrith Leagues Club since 1997. He became manager in June 1999. He has not seen any 1998 promotional packaging at the restaurant since the end of the run-out period. The roll of spare labels was not used to any great extent in 1998. He understood that it was disposed of at the end of the competition.
472 Ms Sharon Lee-Anne Crocker is employed as a maintenance person at the restaurant. She gave evidence concerning stock rotation and delivery.
RELEVANT CLAIMANT: SOPHIE DOWLING
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: Between 4 June and 12 July 1999
473 Kim Isaacs is the second assistant manager at the Prahran restaurant. She was employed on a full-time basis at that restaurant during the 1998 and 1999 competitions. During the 1998 promotion she was a crew member/trainer. She became a trainee manager in August. During the 1999 promotion she was the second assistant manager. There are two secure stock rooms at the restaurant. The witness was responsible for preparing the first stock room for the delivery of the 1999 Monopoly promotional material. She moved all non-promotional packaging to the second stock room. In performing this exercise, she did not see any 1998 promotional material. The material for the 1999 competition was delivered in sealed containers. The restaurant uses a "first in-first out" rotational system. She recalls there being rolls of spare labels in both competitions. These were kept in the safe in the manager's office. On one occasion during the 1999 promotion, the restaurant ran out of promotional packaging. The spare labels were used with generic packaging. She did not see any 1998 promotional material in the restaurant after the end of the 1998 promotion, or during the 1999 promotion. The promotional packaging was of a different colour in 1999 from that in 1998. In cross-examination she said that in 1998, she had performed a weekly audit of food stock and a monthly audit of packaging stock. In 1999 she was only involved in the weekly audits.
474 Alison McCully swore two affidavits. She is now a full-time operations consultant employed by the respondent with responsibility for numerous restaurants including Mt Waverley, Glen Waverley, Collingwood, Kew and Eastland. She commenced at Prahran in November 1993. During the 1998 competition she was employed as restaurant manager. During the 1999 competition she was the operations consultant for the Glen Waverley and Mt Waverley restaurants. During 1998 Ms McCully completed monthly food and packaging stock audits in the Prahran restaurant. This involved the recording of all stock in the restaurant including the service areas and store rooms. All of the promotional packaging delivered for use in the 1998 promotion was used during the promotion, including all of the spare labels. In the course of cross-examination the witness said that at the end of the 1998 competition, the restaurant needed additional stock. Two or three days before the advertised end of the competition, the restaurant was searched for stock. Because of stock shortages, promotional advertising and displays were removed before the promotion officially ended. The witness said that there were record sales in the Prahran restaurant in September and October 1998 because of a gas shortage in Victoria. All stock in the restaurant was used up and had to be replenished.
RELEVANT CLAIMANT: DONNA MAREE CLARKE
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Prior to the week immediately prior to 25 June 1999
475 Jo-Anne Joy Grealy has been the restaurant manager at Redcliffe since March 1997. She recalls both the 1998 and 1999 competitions. After the end of the 1998 competition, she did not again see the 1998 roll of spare labels. She said in her affidavit that she recalled the restaurant running out of 1998 promotional stock shortly after the end of the 1998 competition. In oral evidence she said that after the run-out period, they continued to use 1998 packaging with the game stamps removed. She has not seen any 1998 stock since that time. Stock is rotated on a "first in-first out" basis. When a promotion is to commence, all generic stock is placed at the back of the store room. The promotional material is placed at the front. From the beginning of 1998, with the exception of April 1999, the witness has personally completed each monthly stocktake. This involves a manual count of each piece of stock. She effectively denies that she had any conversation with Ms Clarke, the relevant claimant.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
476 Jason Timothy Masters has been the restaurant manager at Rockingham since about 7 June 1999. He was previously at another restaurant. During the 1999 promotion he saw only purple packaging in the restaurant. There were two rolls of spare labels which were kept in the manager's office.
477 Liane Ellen Sims is second assistant manager at Rockingham. She has worked at the restaurant for about twelve years. She is the customer relations representative for Rockingham and Warnbro restaurants and is responsible for marketing and promotions. She was at the Rockingham restaurant during both promotions, other than for a period of leave during the first and second weeks of June 1999. She spends between thirty and forty hours per week at Rockingham. From September 1998 until May 1999 she was responsible for accepting Walkers deliveries. She did not see any 1998 Monopoly promotional packaging in the restaurant during this time. She recalls that during 1998 there was a roll of spare labels which was kept locked in the manager's office. They were used on cups. She has not seen the roll since the end of the 1998 promotion. She saw only purple-coloured packaging with yellow stamps during the 1999 promotion. She recalls using the roll of spare labels in 1999. The labels were yellow.
478 Norman Graham Sinclair is director of Klepeach Pty Ltd, the licensee of the Spearwood restaurant since December 1998. Prior to that date the company was licensee of the Rockingham restaurant. At the end of the 1998 promotion he checked the levels of promotional packaging at Rockingham to ensure that there was no excess stock on hand. He said that there was a minimal quantity which, to the best of his knowledge was used during the run-out period following the end of the competition. He did not see any 1998 Monopoly packaging in the restaurant thereafter. He recalls a roll of spare labels in the 1998 competition. He said that it ran out early in the promotion.
479 Gregory Ian Bull has been restaurant manager at Warnbro since the restaurant opened on 15 May 1999. He was at Rockingham for the 1998 promotion and at Warnbro for the 1999 promotion. He was somewhat equivocal concerning the amount of stock remaining at the end of the 1998 promotion. His final position appears to be that appearing at TS 3268 where he said that there may have been some material left at the end of the promotion and at the end of August. However it seems that he did not see it thereafter (affidavit, paras 19 and 20). He conducted month-end stocktakes at Rockingham. During the last half of 1998 he personally conducted all stocktakes other than that carried out on 30 November. He did not see any 1998 Monopoly promotional packaging during these stocktakes. He recalls the roll of spare labels used in 1998. He cannot recall whether it was fully used. He did not see it after the end of the 1998 promotion. When the Rockingham restaurant was transferred to the respondent on 1 December 1998, the office was renovated and a new safe installed. He personally transferred the contents of the former safe into the new safe and did not see the roll. Only purple-coloured Monopoly packaging was used during the 1999 competition. There were two rolls of spare labels. They were yellow.
(A) RELEVANT CLAIMANT: CAMERON JOHN DENNISS
Disputed Game Stamps:
(1) Double Park Lane
(2) Single Trafalgar Square
Alleged Dates of Acquisition:
(1) 10 or 11 June 1999
(B) RELEVANT CLAIMANT: RODNEY GEORGE TAYLOR
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Dates of Acquisition: Early in the competition
480 Timothy James William Harrington has been the owner-manager of the Springwood restaurant for four and a half years. He was previously the owner-operator of other restaurants. He presently also owns the Sunnybank restaurant. He regularly checks stock levels at his restaurants. Since the end of the 1998 competition he had not seen any 1998 promotional packaging at Springwood. The "first in-first out" inventory control procedure is applied there. Rotation is carried out at the time of receiving new deliveries. It is performed by reference to the dates on box labels. Dry stock is counted three times per week. On the evening or early morning prior to ordering stock (on Mondays), a manager counts stock and prepares a statistical report. This report is verified within twelve hours by another manager who has had no contact with the previous manager. He also takes into account trading adjustments. The restaurant manager prepares and signs the statistical reports on the basis of these counts. Finally, on the day prior to the Walkers delivery (on Friday), a further stock inventory is completed. Stock is also counted at the end of each month. Mr Harrington conducts the stocktake about once every three months, counting all stock. He has not seen any 1998 Monopoly packaging since the end of that competition. The Springwood restaurant has a very high turnover, using approximately four thousand regular cups per week. If Walkers were to stop delivering, the restaurant would have sufficient stock for about eleven days.
481 The restaurant had one roll of spare labels in 1998. These were used where stamps had fallen off promotional packaging or where promotional stock items had run out before the end of the competition. Only managers had access to the roll which was kept in a safe in the office. Mr Harrington understood that the roll was used completely during the competition. He said that there was some stock left at the end of the 1998 competition. This was used during the run-out period.
482 In cross-examination Mr Harrington said that he had directed staff to ensure that all 1998 Monopoly stock was used. At one stage in his evidence he appeared to have confused 1998 and 1999 in this context, referring to a check carried out following a communication received from McDonald's during the 1999 competition concerning the problems which had arisen. However he also thought that he had directed his staff to check the restaurant after the 1998 competition. The restaurant has limited storage space and so staff try to dispose of anything which is not needed. Mr Harrington said that all stock was used in 1998 and that the restaurant used the spare stamps with generic packaging because it had run out of promotional stock. Mr Harrington seemed to use the expression "run-out period" to describe periods during the competition when he had run out of promotional material. He said that no 1998 Monopoly stock and no 1998 stamps would have been in the restaurant at the time of the 1999 competition. He disagreed with the proposition that 1998 stock may have come in by way of transfer from another restaurant. He may have used the roll of spare labels after the end of the competition at special functions such as children's parties.
483 Stephen Douglas Percival has been a restaurant manager for about four and a half years and has been at Springwood since November 1998. He was previously at Sunnybank. He recalls both competitions. Prior to the commencement of the 1999 competition, he saw generic stock being moved to make way for promotional material. Since commencing work at Springwood he has not seen any 1998 promotional packaging or the roll of spare game stamps for the 1998 competition. He said that in April 1999 the stock room was thoroughly cleaned. This involved the removal of all stock. He observed this process and did not see any 1998 Monopoly promotional material. In cross-examination he said that he physically inspected the stock room two or three times each week. The Sunnybank restaurant had run out of 1998 promotional stock prior to the end of the competition. Springwood received transfers of 1500 large fry boxes and 800 large game cups during the 1999 competition, apparently from Sunnybank. It was suggested to him that this may have been 1998 material. As it came from Sunnybank, and as there was no 1998 material left at Sunnybank, this could not have been so.
484 Simon Luke Martin had been working as second assistant manager at Sunnybank and Springwood for twenty-seven months prior to October 1999. He recalls both the 1998 and 1999 competitions. For three months, commencing in May 1999, he was at the Sunnybank restaurant. He was at Springwood for the 1998 competition. Springwood received at least one roll of spare labels for use in the 1998 competition. It was kept in the manager's office. He has not seen any 1998 Monopoly promotional material since the end of the competition although he has done regular stock checks. During the 1999 competition he saw and used only 1999 promotional packaging. He was at Sunnybank for most of that competition.
485 Although there are two claimants who say that they may have obtained disputed stamps at this restaurant, one is Mr Taylor. His fiancee has said that one stamp may have come from this restaurant. Mr Denniss was also somewhat unclear about where he received his disputed stamps. Neither claim offers much support to the other.
RELEVANT CLAIMANT: SOPHIE DOWLING
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: Between 4 June and 12 July 1999
486 Stefan John Wojciechowski has been the restaurant manager at St Kilda since 1994, including the 1998 and 1999 competition periods. He is involved in ordering and stocktaking on a regular basis. The restaurant operates on a "first in-first out" stock rotation system. The rotation is based upon stickers on the cartons which identify delivery dates. In both years, prior to delivery of promotional stock, the store room was re-organised so that non-promotional packaging was separated from promotional packaging. Non-promotional packaging was stored in a corner of the store room.
487 During each competition, the restaurant had a roll of spare labels which was kept in a safe in the manager's office. During the 1998 promotion the restaurant ran out of promotional cups and fry boxes. The entire roll of spare labels was used with generic packaging material. At the end of the 1998 run-out period, in late August, the only promotional packaging remaining in the restaurant was a small quantity of hash brown bags. The witness told the staff to remove the stamps from the bags, destroy the stamps and use the bags. He observed his staff doing this. He noted that in the 1999 competition, the stamp backing was a different colour from that used in 1998. He said that in preparing the stock room to receive the 1999 promotional material, he did not see any 1998 packaging, nor did he see such packaging at any other time during 1999. There is an error in par 27 of Mr Wojciechowski's affidavit. The reference in the first line to "August 1999" should be to "August 1998". He said so in cross-examination.
488 Dennis Aledo is first assistant manager at St Kilda. He was working full-time at the restaurant during the 1998 and 1999 competitions. He was particularly responsible for receiving and storing stock. If he was on duty when stock arrived, he would supervise the delivery. Stock on hand was moved to the front of the shelf and newly delivered stock put to the rear. He was in the stock room five to ten times a day and was very familiar with its contents. A "first in-first out" stock rotation system was in place. During both competitions he, with Mr Wojciechowski, had organised the store room prior to delivery of promotional material to ensure that non-promotional items were in a designated area away from promotional material. He recalled a roll of spare labels being used during the 1998 promotion after promotional packaging had been exhausted. The restaurant ran out of labels before the end of the 1998 competition. Only a limited quantity of promotional packaging was left at the end of the competition. Mr Wojciechowski told him to peel the stamps off it. He and another person did this. The stamps were thrown away. He did not see any 1998 promotional packaging during the 1999 competition, nor at any other time during 1999. He was not cross-examined.
RELEVANT CLAIMANT: DARREN ALAN IRWIN
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: Between 4 and 16 June 1999
489 Firuz Madon has been the owner-operator of the St Peters restaurant since 1992. He is there for seven days each week. Since September 1998 he has not seen any 1998 Monopoly promotional packaging. During the 1998 promotion the roll of spare labels was kept in the safe in the manager's office. At the end of the promotion no labels remained. The witness did not see any 1998 Monopoly promotional packaging or game stamps at the restaurant during the 1999 promotion. Although substantial cross-examination was directed at certain irregularities in the stock figures, no significant submission has been made with respect to those alleged inaccuracies. Little emerged from this cross-examination other than that the records themselves are unlikely to be accurate for reasons which I have discussed elsewhere.
490 In her written submissions the applicant submitted that Mr Madon was unable to tell the difference between 1998 promotional stock and 1999 promotional stock, referring to TS 3452 ll 2, 8 and 9. Clearly, the witness was speaking about game stamps rather than packaging.
491 Janet Madon is the owner's daughter-in-law and has been responsible for the day-to-day operation of the restaurant since late 1997 or early 1998. She was on holidays at the beginning of the 1998 promotion but returned towards the end. There was some promotional packaging left in the restaurant at the end of the promotion. This was used up during the last weeks of August. She removed the game stamps from the packaging before it was supplied to customers. There may be some inconsistency between the last and second last sentences in par 16 of her affidavit. It is not clear whether she removed the stamps or counter attendants did so. The 1998 roll of spare labels was used up by the end of the promotion. There were no 1998 game stamps in the restaurant after the end of the 1998 promotion. She did not see any 1998 packaging during the 1999 promotion. During that promotion the roll of spare labels was kept in the cupboard under the fry station. She checked it to ensure that it contained 1999 stamps. She said that her assertion that 1998 promotional packaging had been used by the end of August was based upon her month-end stocktake for August.
492 The applicant submitted that Ms Madon had said that she did not know whether there was 1998 promotional packaging left in the restaurant at the end of August 1998, the reference being to TS 3406 ll 29 to 30. There is no such reference in my copy of the transcript. However it may have been a reference to line 29 on page 3406 and to the first line on the top of p 3407. The pages may vary in different print-outs of the transcript. In any event, this interpretation of her evidence is inconsistent with par 16 of her affidavit and with her evidence in cross-examination at TS 3393 l 19 to TS 3394 l 2. The passage at pages 3406-7 relates to a rather complex arithmetical exercise put to her at TS 3406 ll 22-26. Her answer seems to reflect a lack of understanding of the question and is probably not responsive. The witness clearly asserted that she had carried out a stocktake at the end of August 1998 and that it had disclosed no 1998 promotional material at that time.
(A) RELEVANT CLAIMANT: JENNIFER ANNE COX
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 18 June 1999
(B) RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angle Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
493 Rowena McCurley has been restaurant manager at The Gap since 1 May 1999. Since her arrival at the restaurant she has not seen any 1998 Monopoly packaging. The restaurant is a small one. She personally undertakes stocktakes and stock rotation. In cross-examination the witness denied that the roll of spare 1998 labels was still in the restaurant at the time of the 1999 competition. She also denied that there was any 1998 packaging in the restaurant.
494 Jamie Kevin Back was the second assistant manager at The Gap for approximately three years until August 1999. He recalled both the 1998 and the 1999 competitions. In the 1998 competition two rolls of extra labels were received. They were kept in the office. Not many were used. He does not know what happened to the rolls but he has not seen them since the end of the 1998 competition. At the end of that competition a number of large cups remained. Sleeves of cups were opened, the stamps removed and the cups used. All remaining packaging was used in the period immediately following the end of the competition. He did not see any 1998 packaging after the end of the competition, nor did he see any during the 1999 competition. In cross-examination Mr Back said that he took steps to ensure that the remaining 1998 Monopoly competition packaging was used up before using other stock. He also said that he was regularly in the office where the rolls of spare labels were kept. There was some inconsistency between his evidence in cross-examination and that of Ms McCurley in that she said that paper stock was not kept in the roof whilst Mr Back said that generic stock was stored in the roof during the 1999 competition.
495 Phillip Anthony Reid was responsible for ordering and stock rotation at the restaurant from mid- or late October 1998 until March or April 1999 when he moved to another restaurant. He would physically remove each box from the stock room in the course of stock rotation. He did not see any Monopoly packaging in the store room or elsewhere in the restaurant. He was not cross-examined.
496 Sean Samuel Bower was restaurant manager at The Gap from October 1996 until May 1999. He then transferred to the Indooroopilly restaurant. He recalls both competitions and that the packaging for each was different. He did not see the roll of spare labels in The Gap restaurant after the 1998 competition had finished. He recalls that at the end of the 1998 competition the restaurant had some promotional packaging remaining. It was all used following the end of the competition. He recalls staff, including himself, removing game stamps from the packaging as it was used. He performed the month-end stocktakes at The Gap and counted every item of stock. He saw no 1998 competition packaging during any of these stocktakes from September 1998. He said in cross-examination that he did not recall there being any labels left on the roll at the end of the 1998 competition. He understood that they had been used on generic fry boxes.
497 The records indicate that promotional stock remained in the restaurant at the end of August 1998 and that 800 large cups were still there at the end of September. They were not recorded in the October stocktake. To the extent that the witness offered any explanation, it seemed to be that generic and promotional stock might have been treated interchangeably. This was not very convincing, but the matter is of little real significance. If the stock figures were correct when the items were identified as present, they were probably accurate when they showed that the items were no longer there. The applicant suggested that promotional stock may have been treated as generic stock after 30 September 1998 and may have remained in the restaurant, undisturbed and undetected, until June 1999, notwithstanding stocktakes and stock rotation. That is barely possible. Nonetheless, the applicant must still deal with the fact that neither Ms McCurley nor Mr Black nor Mr Reid saw 1998 packaging during the 1999 competition. Further, Ms Cox claimed to have received 1999 packaging with yellow stamps.
RELEVANT CLAIMANT: NORMAN WAYNE LEISHMAN
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
498 Clive Antony Armitage has been the owner-operator of the Toowoomba South restaurant, which is in Ruthven Street, since 14 December 1988. He also operates the Toowoomba Grand Central restaurant. He spends about ten hours per week in the restaurant, inspecting all areas, including storage areas. Within a few days of the end of the 1998 competition he collected all remaining promotional packaging from the restaurant and took it to the board room at his office. With the assistance of his wife, daughter and office staff, he then removed the game stamps. He also performed some of this work at home. He burnt some of the game stamps and threw out the rest. He returned the packaging to his restaurants, including Toowoomba South, where it was used. He has not seen any 1998 promotional packaging at the Toowoomba South restaurant since that time. As to the roll of spare 1998 labels, his recollection is that it was exhausted well before the end of the 1998 competition. He only saw purple Monopoly packaging with yellow stamps during the 1999 Monopoly competition.
499 Mark Andrew Ward has been owner-operator of the Toowoomba City restaurant at 277 Margaret Street Toowoomba since it opened on 11 August 1999, replacing an old restaurant located on the same site. He was supervisor of the Toowoomba South restaurant from September 1995 until June 1999. He regularly inspected the storage areas. During the 1998 competition, promotional packaging was stored separately from generic material in a lockable room. The roll of spare labels was kept in the manager's office. He has not seen that roll since the end of the 1998 promotion. At the end of the 1998 promotion, game stamps were removed from the remaining promotional packaging and the stock used until it ran out. He did not see any 1998 promotional packaging at the Toowoomba South restaurant after the 1998 promotion. The Toowoomba City restaurant in Margaret Street closed at the end of February 1999 and re-opened in August 1999. Mr Leishman, at one stage, suggested that he may have obtained one or more of his disputed stamps there.
500 Ziva Charmianne White is the second assistant manager at Toowoomba West. She worked at Toowoomba South from August 1997 until August 1999, becoming second assistant manager in early 1998. She was responsible for running shifts. She removed game stamps from promotional packaging immediately after the 1998 competition. She particularly remembered removing such stamps from cups and fry boxes. The packaging was then used until it ran out. She has not seen any 1998 Monopoly packaging at the Toowoomba South restaurant since that time. The roll of spare labels for the 1998 competition was fully used. She used labels from a roll during the 1999 competition. They were yellow. All of the promotional material which she saw during the 1999 competition was purple. She recalls that the 1998 promotional packaging was a different colour.
RELEVANT CLAIMANT: JAMES JOHN MILLER
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Single (Marlborough Street)
Alleged Dates of Acquisition:
(1) Between 11 June and 1 July 1999
(2) Between 11 June and 1 July 1999
501 Kylie Narelle Lester has been the restaurant manager at Traralgon for the past ten years. During the last days of the 1998 competition, the restaurant began to run out of promotional packaging. By the last day, only large promotional cups remained. Staff used generic stock with labels taken from the roll to make up for this. After the promotion ended, and during the run-out period, labels were removed from the remaining large cups and thrown away. The cups were then used for large thick shakes only. Another promotion had commenced using special cups for Coca Cola. There is a note in the manager's diary for 16 August 1998 directing that labels be removed from all remaining large cups. The witness observed that this was done during the run-out period. The roll of spare labels was entirely exhausted before the end of the 1998 competition. Ms Lester was confident that there was no 1998 Monopoly promotional packaging or stamps left in the restaurant after the end of the 1998 competition and that none was used during the 1999 competition.
502 In cross-examination some attempt was made to undermine the witness's evidence, relying upon the content of par 19 of her affidavit. That paragraph reads as follows:
From my first hand knowledge of reviewing stock reports and checking the storage areas, I am able to say that the roll of extra tokens held by the Traralgon restaurant was completely exhausted at the end of the 1998 competition. This is why when McDonald's Australia contacted our restaurant on or about 20 June 1999, during the 1999 McMatch and Win competition, that our restaurant among other reasons, was able to state that no 1998 promotional tokens or packaging remained in our restaurant.
503 It was pointed out that there was no provision for including the roll of spare labels on any stock report, nor should it have been in "storage areas" if that term is taken to describe areas in which stock is stored. Thus it was said that the witness's reasons for asserting that the roll had been fully used were not valid. It seems, however, that par 19 is simply badly drafted. It purports to deal with both labels and packaging. The witness made it clear in her oral evidence that she recalled that the roll had been fully used.
504 Jane Maree Pendlebury is the supervisor responsible for the Warragul, Moe, Morwell and Traralgon restaurants. She works from the Traralgon restaurant. She did not supervise the Warragul restaurant during the 1998 competition. When Traralgon ran out of stock towards the end of the 1998 competition, she attempted to obtain more but was unable to obtain sufficient quantities. The manager decided to use the roll of spare labels. It was completely exhausted by the end of the competition. Based on this and on the stock reports, the witness said that there was no 1998 promotional material left in the restaurant after the end of September 1998 and none was used during the 1999 competition. This may be a conclusion rather than evidence. I have previously expressed my reservations about the reliability of stock records. For what it is worth however, it seems that they disclose no promotional material in the restaurant after the end of September 1998.
505 In cross-examination it emerged that the witness was unable to recall whether she had used stock from other restaurants to supply Traralgon, or whether the restaurant had used spare labels with generic packaging, or whether they had adopted a combination of both. She thought that on occasions, generic stock had been used with hash brown bags bearing labels. At another point she said that her recollection was that the Traralgon restaurant had no spare labels left at the time that she went looking for stock. She said that she had not actually witnessed the last label being used but was told that they had been exhausted. It is clear from her evidence that there was a shortage of stock at Traralgon, that spare labels were used to make up for it, that she sought to obtain extra stock from other restaurants and that hash brown bags bearing labels were also used with generic packaging. In those circumstances, it is not difficult to accept that the roll was exhausted.
506 There is one curiosity about the evidence concerning Traralgon. Ms Lester does not actually say that she saw no 1998 packaging in the course of the 1999 competition, but as much is implicit in pars 19 and 21 of her affidavit. Ms Pendlebury also does not specifically swear that she has not seen 1998 packaging since the end of that competition, but again it is implicit in par 10 of her affidavit. This apparent deficiency may be attributable to the fact that at the time at which the affidavits were sworn, the possibility that 1998 packaging had been transferred into restaurants during the 1999 competition had not been addressed. Whoever drafted the affidavits may have thought that absolute certainty that no 1998 stock remained at the end of the 1998 competition was a sufficient basis for excluding its presence in the restaurant during 1999. Thus the possibility of transfers was not addressed in express terms as it is in the case of some other restaurants. Nonetheless, as I have said, both deponents implicitly assert that they did not see any 1998 stock during the 1999 competition.
RELEVANT CLAIMANT: PETER ANTHONY MCGAHEY
Disputed Game Stamp: Single (Coventry Street)
Alleged Date of Acquisition: One to two weeks before 17 June 1999
507 Rebecca Lea Walker had been restaurant manager at Tuggeranong for over a year prior to 17 December 1999. She worked at the restaurant throughout both competitions. She no longer works for McDonald's. After the 1998 promotion a small quantity of packaging remained. She recalls tearing off the stamps so that the packaging could be run out. There was perhaps half a carton or a carton of each type of packaging at the end of the competition. She recalls the roll of spare labels which was kept locked in the safe. She cannot recall whether the entire roll was used during the course of the promotion. During the 1999 promotion she saw only purple packaging being used in the restaurant. The 1999 roll of spare labels was stored in her safe. It contained only yellow stamps. She did not see any roll of 1998 labels during the 1999 competition.
508 Fiona Clare Lang had been the first assistant manager at Tuggeranong since January 1999. She was previously second assistant manager. She no longer works for McDonald's. She worked in the restaurant during both competitions. For about a year prior to September 1999 she had been responsible for ordering stock. At the end of the 1998 promotion some packaging remained. The labels were removed, and the packaging was used. It took about two to three weeks to exhaust it. After she took over responsibility for ordering stock, she did not see any 1998 Monopoly packaging in the restaurant, nor did she see any such packaging being used during the 1999 promotion.
RELEVANT CLAIMANT: MICHELLE MAREE HAYWARD
Disputed Game Stamps:
(1) Double (Northumberland Avenue)
(2) Double (The Angel Islington)
Alleged Dates of Acquisition:
(1) 18-19 June 1999
(2) 21 June 1999
509 Rodney Arnold Chiapello has been the owner-operator of the Virginia restaurant since 1991. He recalls both the 1998 and 1999 competitions. The game stamps and packaging were different colours in each year. He is familiar with the stock rotation method used in the restaurant. He does not believe that any paper stock from the 1998 competition was retained after the end of that competition. He saw no point in keeping such stock. He did not see or use any 1998 competition stock during the 1999 competition. In cross-examination he said that the game stamps for the 1998 and 1999 competitions had been red and yellow, but he could not remember the different colours of the packaging.
510 Melanie Fae Farrell-Adams has been a crew person at Virginia for four years. She remembers both the 1998 and 1999 competitions. Different packaging was used in each year. Whilst working on the front counter she did not see any 1998 competition packaging during the 1999 competition. She is now a manager at the Toombul restaurant. The packaging in 1999 was a dark colour. The stamps were yellow. There was no 1998 Monopoly promotional material left in the restaurant after the 1998 competition. No such material was distributed during the 1999 competition.
511 Bronwyn Jane Hart has been second assistant manager at Bracken Ridge since 1 February 2000. She previously worked at Virginia for a period which included both the 1998 and 1999 competitions. In 1999 the packaging was purple. It was a different colour in 1998. The game stamps were also different colours in each year. There was at least one roll of spare labels during the 1998 competition. It was kept in the manager's office. The labels were used where labels had fallen off products. She last saw the roll about one or two weeks before the end of the competition and has not seen it since. She has not see any 1998 competition stock in the restaurant since about a week after the end of the 1998 competition. From the beginning of 1999 she assisted with month-end stocktakes. During those stock-takes she did not see any 1998 competition material.
512 In cross-examination she said that she had been responsible for supervising Walkers deliveries. She was also responsible for ordering and for monthly stocktakes from the beginning of 1999. She did not do the ordering in 1998. The 1998 stamps were red and the 1999 stamps, yellow. The limited amount of space in the restaurant was such that there could not have been 1998 stock present which she had not seen.
513 Angela Johanne Paterson was the restaurant manager at Virginia for three years prior to 1 October 1999. She no longer works there. She recalls the 1998 and 1999 competitions and that the packaging was a different colour in each year. During the 1998 competition the restaurant had two rolls of spare labels. Both were used and a further roll obtained from the Toombul restaurant. She has not seen it in the office since the end of the competition. She performed month-end stocktakes throughout both competitions. She neither saw nor counted any 1998 competition stock at the restaurant following the end of the competition. There was some competition stock still on hand when the competition finished, but it was used during the run-out period. She did not see any 1998 stock during the 1999 competition. During that time, she worked frequently on the counter and also checked the stock room regularly.
514 Neil Geoffrey Preston is the swing manager at Virginia. He has worked there for six years. He remembers the 1998 and 1999 competitions. In 1998 the game stamps were red whereas in 1999 they were yellow. The colour of the packaging also differed. The restaurant received one or two rolls of spare labels for use in the 1998 competition. They were stored in the manager's office. He has not seen them since the end of the 1998 competition. At the end of the 1998 competition the restaurant had some remaining promotional packaging. It was used during the run-out period. He did not see any 1998 competition packaging during the 1999 competition. Paper stock is used at the restaurant within two weeks of its being delivered. During 1998 he had some stocktaking duties and was responsible for Walkers deliveries. Perhaps five or six boxes of packaging were left over at the end of the 1998 competition. By the end of the run-out period nothing was left. He thought that it had been used within about five days.
RELEVANT CLAIMANT: PETER JAMES FUSINATO
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: 13 June 1999
515 Xavier Peter Barnsley is the assistant manager at Warragul, where he has been employed since 27 June 1996. The restaurant operates on a "first in-first out" stock rotational basis. Due to the limited storage area available at Warragul, it was decided during the 1998 competition that all promotional stock should be kept in a walk-in refrigerator which was secured by a padlock. The promotional material for the 1998 competition arrived a week or two before the commencement of that competition. A roll of spare labels was also received at that time and locked in the safe. Two or three days before the end of the promotion, some promotional stock ran out. Thereafter, generic packaging was used with labels from the roll. It was completely used.
516 The witness initially said that by the end of the 1998 competition, only non-promotional stock with labels from the roll was being used and that no 1998 stock was held or distributed during the 1999 promotion. In a supplementary affidavit he corrected this version, saying that some promotional packaging remained at the end of the 1998 promotion. He recalls removing stamps from both promotional and non-promotional packaging, the latter being packaging to which labels from the roll had been affixed. All packaging was then used in the ordinary way. During the 1999 competition he saw only purple packaging. The Warragul restaurant had a full field inspection on 11 and 12 June 1999. As I have said, this is a comprehensive inspection by a representative of the respondent. There is one such inspection every year or eighteen months. As part of the preparation for such inspection the witness supervised and assisted in cleaning and re-organising the storage area. He ensured that the cartons of stock were organised so that the older cartons were at the front and were used first. He paid particular attention to what was in the storage area and when it had been received into the restaurant. He did not see any 1998 promotional packaging in the course of this exercise. At the beginning of the 1999 competition Mr Barnsley drew to the attention of his staff the fact that whereas the stamps in 1998 were red, the 1999 stamps were yellow. The 1999 packaging was purple. The 1998 packaging was a different colour. In the course of cross-examination the witness said that the change in his recollection as to the exhaustion of 1998 packaging was based upon more careful consideration of all of the circumstances. This arose out of his addressing the question of the full field inspection and when it had occurred.
517 The restaurant received a small number of red food redemption stamps in 1999 and honoured them as a matter of policy. There may have been three or four such stamps presented in each of the two halves of the competition. The witness recalled that the first sleeves of cups used in 1999 had yellow stamps as did the fry boxes and hash brown bags.
518 James Adrian Radford owned the Warragul restaurant from 27 July 1996 until 9 August 1999. In the last few days of the 1998 competition the restaurant ran out of most promotional stock and commenced to use of the roll of spare labels with generic packaging. Although he cannot specifically remember whether all stamps from the roll were so used, he said that if used for products such as fries or drinks, 500 stamps would be exhausted within a day. He did not see any 1998 promotional material at the restaurant during the 1999 promotion. The presence of old stock in the restaurant would incur penalty points in a full field inspection. Whilst he owned the restaurant, stocktakes were done daily, if not twice daily. Everything in the restaurant was counted monthly and a scaled down version of that stocktake was conducted weekly. The first part of the full field inspection on this occasion occurred on 11 and 12 June 1999 after three to six months' notice. He personally checked to ensure that no 1998 Monopoly promotional material remained in the restaurant and also asked his staff to ensure that such was the case. He said that storage space at the Warragul restaurant was at a premium so that it was important to dispose of promotional stock as soon as possible. Monopoly stock was not stored in the roof, although some other stock was.
Relevant Claimant: Ian Robert Maynard
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
519 Gregory Ian Bull has been the restaurant manager at Warnbro since the restaurant opened on 15 May 1999. He was at Rockingham for a period which included the 1998 promotion. His evidence concerning Rockingham appears elsewhere. At the commencement of the 1999 promotion at Warnbro, Mr Bull and another employee removed generic packaging from the stock room to another area in the restaurant so that there was only Monopoly promotional packaging in the stock room. He observed only purple-coloured Monopoly packaging used in the restaurant during the 1999 competition. The restaurant received two rolls of spare labels which were kept locked in the manager's office. The rolls bore yellow stamps. The witness recalled that recalled no occasion during the 1999 competition on which the restaurant had run out of large fry boxes, nor did he recall any staff member handing out medium and small fry boxes with labels from the roll of spare labels. In any event, the disputed stamp is a double.
520 Rebecca Michelle Beacham has been employed as a manager at the Warnbro restaurant since it opened in May 1999. Before that time she worked at Rockingham. She was there during the 1998 promotion and at Warnbro during the 1999 promotion. She saw only purple Monopoly packaging during that promotion. She recalls using labels from a spare roll during 1999. They were yellow.
521 William Thomas Gould has been second assistant manager at Warnbro since it opened in May 1999. He was previously employed at Kwinana. On 14 June he worked as manager in charge of the restaurant between the hours of 4.00 pm and midnight. The witness said nothing else of value in his affidavit as the result of various objections having been upheld.
RELEVANT CLAIMANT: JOANNE ROBYN ROBINSON
Disputed Game Stamp: Double (King's Cross)
Alleged Date of Acquisition: 21 June 1999
522 Belinda Jane Evans is the manager of the Wollongong CBD restaurant. She started at the restaurant in 1992. A small amount of packaging was left in the restaurant at the end of the 1998 promotion. It was used up rapidly during the run-out period, with the stamps removed. All 1998 promotional packaging was used up or discarded. No promotional packaging remained in the restaurant after the end of August 1998, and none was used during the 1999 promotion. The witness was not restaurant manager during the 1998 competition.
523 Allan Clifford Peter Barham is a senior crew member at Wollongong. He has been employed at that restaurant since 1994. For the past four years his responsibilities have included unloading, checking and storing food and packaging. He gave evidence concerning restaurant procedures.
524 Doris Donna Testa (see also Fairy Meadow) was operations consultant responsible for the Wollongong CBD restaurant from October 1998 when McDonald's acquired it from the previous franchisee. An inventory report concerning stock was prepared as at 26 October 1998, the changeover date. From her review of the stocktake and from her own personal observations, she says that there was no 1998 promotional packaging in the restaurant after 26 October 1998. She did not see any used in the course of the 1999 competition. She was not cross-examined.
525 Luke Raymond McPhail (see also Fairy Meadow) worked temporarily at the Wollongong CBD restaurant at the end of June and in the first half of July 1999, including 2 July. Whilst working at the Wollongong restaurant he did not observe any 1998 packaging material in the restaurant. It seems that Mr McPhail's wife had lunch with Mr & Mrs Robinson on 19 June 1999, the day upon which Ms Robinson claims to have received a "station stamp". Mr McPhail considered that the Robinsons were of good repute.
RELEVANT CLAIMANT: IAN ROBERT MAYNARD
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June 1999
526 David Anthony Briffa is the husband of the licensee at Woodbridge. Ms Briffa has owned the restaurant since July 1995. Mr Briffa has been involved in running it throughout that time. He spends about forty hours per week in the restaurant over six days in each week. The restaurant used all of the 1998 promotional large cups, large fry boxes and hash brown bags before the end of the competition. Remaining promotional packaging was used during the run-out period of two weeks. He has not seen any 1998 packaging in the restaurant since that time. The restaurant had one roll of spare labels in 1998. It was kept in the safe. When promotional packaging was exhausted, generic packaging was used with spare labels from the roll. There were no labels left on the roll at the end of the promotion. During the 1999 promotion there was also a roll of spare labels kept in the manager's office. They had yellow backing. During the 1999 promotion the witness did not see any 1998 packaging or game stamps being supplied to customers.
527 Nicholas Alec Beard is the senior manager at Woodbridge. He has worked there since it opened it 1995. After the run-out period in 1998, there were some medium cups and fry boxes remaining in the restaurant. He peeled off all of the game stamps and burnt the packaging and the stamps. The roll of extra labels was kept in the manager's office during the competition. He recalled the roll being used and that there were no spare labels remaining at the end of the promotion. During the 1999 promotion, a roll was also kept in the manager's office. He recalls using it and that the labels on the roll were yellow. He did not see any 1998 Monopoly promotional packaging used at the restaurant during 1999. The records apparently show that there were about 1,000 medium promotional cups in the restaurant until some time in November 1998. Mr Beard was aware of this and said that they had been kept in the roof after the end of the promotion. He eventually asked the operator what he should do with them. He was told to get rid of them. He peeled off the labels and burned them and the cups. The fry cartons referred to in his affidavit were disposed of in the same way.
528 There is obviously a discrepancy between the evidence of Mr Briffa and that of Mr Beard. However the incident to which the latter referred has the ring of truth about it. It is also not difficult to accept that Mr Briffa may have forgotten about it.
OTHER RESTAURANTS
529 Evidence was called from employees at six other restaurants which were not specifically mentioned by claimants as possible sources of disputed stamps. The relevance of this evidence may be marginal but I should summarize it.
Airlie Beach Restaurant
(This restaurant may be relevant to the claim by the Campbells.)
530 Ryan Glen Cheetham has worked for McDonald's for many years and has been at Airlie Beach since it opened in June 1998. He is currently second assistant manager. He recalls both competitions. At the end of the 1998 competition half of the roll of labels stamps remained. He believes that somebody threw this away. He has not seen it since the end of the competition. No roll of spare labels was received for use in the 1999 competition. At the end of the 1998 competition some hash brown bags, fry boxes and, possibly, cups remained. The game stamps were removed, and the stock was used within two or three weeks of the end of the competition. He did not see or use any of the 1998 packaging during the 1999 competition. He was not cross-examined.
531 Paul Simon Fraser has worked for McDonald's for more than nine years and has worked at the Airlie Beach restaurant since it opened in June 1998. He recalls both competitions. In 1998 the restaurant received two rolls of spare labels. They were kept in the safe and used when the restaurant ran out of hash brown bags. One-and-a-half rolls were used during the competition. He believes that the remaining half-roll was thrown away.
532 The witness was responsible for ordering stock during 1998 and 1999. During 1998 he met every delivery truck although he now does not do so as frequently. Prior to such deliveries, he would rotate stock. He would check the driver's list of stock and the invoice for each delivery. Before each competition began, promotional packaging was stored behind generic packaging in the stock room. When the competition began, most of the generic packaging was stored elsewhere, although a couple of open boxes were retained in the store room for use by the crew during breaks. They were not allowed to play the Monopoly game. For the same reason, some pie boxes and hash brown bags were retained in the store room. Mr Fraser was involved in about twelve out of the fifteen stocktakes following the opening of the restaurant in June 1998. He did not observe any 1998 promotional packaging after the end of the competition. Not much stock remained at that time. It was used up shortly thereafter, with the stamps removed.
533 Michael Francis Muller has been the owner-operator of the Airlie Beach restaurant since 29 June 1998. He is also the restaurant manager. He recalls both competitions. At the commencement of the 1998 competition the restaurant received two rolls of spare labels. They were kept in the safe and used when the restaurant ran out of promotional hash brown bags. They were also used occasionally where other packaging material was delivered without labels attached to it. The restaurant used at least one of the rolls. At least half a roll remained at the end of the competition. The witness believes that this was discarded. There was no roll for the 1999 competition. The witness was involved in all but three or four of the stocktakes between the opening of the restaurant and the swearing of his affidavit on 30 September 1999. He did not see or count any 1998 promotional stock after the end of the competition. At the end of the competition some stock remained. The labels were removed and the items used.
Albion
(This restaurant may be relevant to the claim by Ms Cole.)
534 Rajen Kumar has been employed by McDonald's since 1998. He was at the Albion restaurant from 1 April 1999 to 22 August 1999. He recalls the 1999 competition. He also recalls handing out redemption envelopes to only one customer, a female aged between forty and fifty. She asked for eight envelopes. He asked her whether she had won eight prizes. She said words to the effect of "Yes, but the winning stamps are at home." As I have said previously, I am unable to discern any particular relevance in the conversations between claimants and McDonald's employees, save in one or two exceptional cases of which this is not one.
Rocklea
(This restaurant may have transferred stock to Annerley.)
535 David John Parkinson was the restaurant manager from late 1997 until March 2000. At the end of the 1998 competition only a small quantity of packaging remained. He instructed the crew to remove the stamps and use the packaging in the usual way. There was no packaging remaining at the restaurant after the end of the run-out period. He did not see any 1998 Monopoly packaging at the restaurant after that time. He participated in all month-end stocktakes at the restaurant whilst he was there. The first part of a full-field inspection took place at Rocklea in March 1999. Mr Parkinson thoroughly supervised the cleaning of the restaurant prior to it. He did not see any 1998 packaging during such preparation. He only saw and used 1999 packaging during the 1999 competition. He was not cross-examined.
536 Denis Charles Roche was the consultant for Rocklea, Acacia Ridge and Woodridge restaurants during the 1998 and 1999 competitions and also for Annerley during the 1999 competition. He has not seen any 1998 packaging at Rocklea since the end of that competition, nor has he seen any 1998 packaging at Annerley since he took responsibility for that restaurant in 1999. During the 1999 promotion he saw only 1999 promotional material. During 1999 he participated in full-field inspections at both Annerley and Rocklea. The first inspection at Annerley was on 18 and 19 June 1999 and the second, on 15 October 1999. At Rocklea the first occurred on 6 March 1999 and the second, on 6 August 1999. He was not cross-examined.
Roma Street
(This restaurant may be relevant to the claim by the Campbells. It is also known as Roma Street Transit Centre.)
537 Emma Clare Chapman had been employed by McDonald's for about eight years prior to October 1999. She is now a restaurant manager. She was first assistant manager at Aspley from May 1998 to March 1999 when she transferred to Roma Street. She recalls both competitions.
538 At Roma Street she has performed month-end stocktakes since she arrived there and has not seen any 1998 stock. She has regularly observed incoming deliveries. She often observes the crew and managers working in the stock room. She was cross-examined about a transfer into Roma Street of a carton of 2000 hash brown bags. The 1999 cartons contained 2000 bags whilst 1998 cartons contained 3000 bags. Thus it seems certain that this was 1999 stock. In any event, the witness said that a transfer of old stock would have been detected.
539 Gregory Joseph Dunn is the operations consultant having responsibility for the Roma Street restaurant. He visits it at least twice per week for approximately a half-day each visit. He has held this position since December 1997. In February 1999, as the former manager had left and the new manager had not yet started, he cleaned up the manager's office. He went through the drawers and cupboards, cleaned out the safe and disposed of all material which was no longer required. He did not see a roll of spare labels from the 1998 competition. In March 1999 he and Eireann Donal Markham cleared out the stock rooms and the floor of the restaurant, removing all boxes. Flaps were cut off the boxes and they were re-organized. Again he did not see any 1998 stock.
540 Eireann Donal Markham became second assistant manager at Roma Street in February 1999. He was at Aspley during the 1998 competition. He recalls both competitions. He did not see any 1998 competition packaging or stamps during the 1999 competition. He was not cross-examined.
541 Allison Marie Munn was at Roma Street during both competitions as second assistant manager. She recalls both competitions. Some promotional packaging was left after the 1998 promotion. It was used up during, or shortly after the run-out period. She has not seen any 1998 stock in the restaurant since that time. She recalls a roll of spare labels in 1998. This was kept in a cupboard in the manager's office. The labels were used when labels on promotional packaging had been damaged or lost. She recalls regularly seeing it in the cupboard during the promotion but not after late August or early September 1998. She did not see any other roll of labels in the cupboard until the commencement of the 1999 promotion.
542 She was cross-examined about 4000 promotional medium fry boxes which appear in the stock records for the month ending 31 August 1998. It was pointed out that these had apparently not been exhausted during the run-out period. However, in par 10 of her affidavit she said that the remaining packaging was used up "during or shortly after the run-out period immediately following the end of the promotion." In any event, the witness doubted whether there were 4000 promotional fry boxes remaining at that time. Given the totality of the evidence concerning the accuracy of such records, I would not be surprised if she were correct.
Runaway Bay
(This restaurant may be relevant to the claim by the Campbells.)
543 Kristina Ann Roberts has worked for McDonald's since September 1991 and became a second assistant manager in October 1995. In February 1998 she was appointed restaurant manager at Runaway Bay. She recalls both the 1998 and 1999 competitions and remembers the distinctive colouring used in each, including the colouring on the backing of the game stamps. Two rolls of spare labels were issued for use by the restaurant in the 1998 competition. These were used up by the end of the competition. The restaurant also received two rolls for the 1999 competition. During both competitions the rolls were kept in the safe. Only managers had access to them.
544 At the end of the 1998 competition a small number of promotional cups remained. They were used up after the game stamps had been removed. All packaging was used up within two weeks of the end of the competition. The witness has not seen any 1998 packaging in the restaurant since that time. She regularly counts stock for the purposes of ordering, and from time to time, observes deliveries. Stock is regularly rotated for use on a "first in-first out" basis. She also undertakes monthly stocktakes.
545 In cross-examination it was put to the witness that Runaway Bay had received one carton of promotional medium cups from Walkers on 13 August 1998. (See exhibit 257.) The next entry suggests that the item may have been returned or the order cancelled. The witness was unable to explain these entries. In the end, it is safer to rely upon her recollections rather than to seek to ascertain the meaning of these records.
Yamanto
(This restaurant may be relevant to the claim by Ms McInnes.)
546 Ms McInnes claimed to have obtained a redemption envelope at this restaurant. Mr Camp, the manager does not recall a conversation which she claims to have had with him. It is not necessary to resolve that dispute. There is no suggestion that any relevant stamp was obtained at this restaurant, save for a submission in the applicant's written submissions. I suspect that its inclusion was an oversight.
FURTHER COMMENTS CONCERNING EVIDENCE FROM RESTAURANTS
547 The large volume of evidence from restaurant owners, managers and staff and its frequently repetitive nature tends to distract attention from its comprehensiveness and persuasiveness. Three aspects of this body of evidence call for special consideration. They are:
* evidence based on stocktaking and general observation of stock storage areas;
* evidence of the use of all 1998 promotional packaging during, or shortly after the 1998 promotion; and
* use of the roll of spare labels and disposal of remaining labels.
Stocktaking and stock storage areas
548 All restaurants seek to operate with minimal stock levels to maximize profit. Ordering and delivery of stock are regular and frequent. Obviously, in order to place an appropriate order it is necessary to assess the quantity of stock in the restaurant and likely usage in the immediate future. The stock storage facilities in the restaurants are limited. These factors support the observations made by numerous witnesses that they had a detailed knowledge of the contents of relevant stock rooms. Performance of their duties required such knowledge. In addition to stocktaking for ordering purposes, there were other stocktaking regimes - monthly, weekly and even twice-weekly in some restaurants. There was also the stock rotation procedure carried out in conjunction with the receipt of stock deliveries. There would be very little chance that a carton of 1998 promotional packaging could have escaped detection from August 1998 until June 1999 and then re-appeared. The stocktaking, ordering and rotation procedures compelled attention to the amount of stock in the restaurant and its age.
549 These restaurants are not generally places where boxes of stock can be stored and forgotten. This is demonstrated by the restaurant witnesses' responses to the suggestion advanced throughout the trial that stock may have been stored in the roofs of some of the restaurants. Whilst it seems that a small number did store promotional material there, the vast majority did not do so. In those restaurants where this occurred, the roof was included as an area in which stocktaking activities were conducted.
550 Having regard to all of those factors, it seems unlikely that stocktaking and ordering staff could, for a period of months, have overlooked the presence within any restaurant of a carton of 1998 stock. Even if it were there and mistaken for generic stock, it would have been brought forward and used.
Exhaustion of 1998 packaging
551 In a large number of restaurants specific steps were taken to ensure that promotional stock was used up, either during the promotion or shortly thereafter, including the run-out period. A number of mechanisms were used. In some restaurants ordering was reduced so as to reduce stock levels. In some restaurants, this involved the use of generic packaging with spare labels in preference to ordering more promotional stock. In other restaurants staff were directed to ensure that stock was used up in the period following the promotion. In many cases they took the precaution of removing game stamps. There was obviously a conscious perception of the need to dispose of the stock as quickly as possible.
552 It is true that in some restaurants small amounts of 1998 packaging were found after the end of the promotion and after the end of the run-out period. Some items merely appeared in (and disappeared from) the stock records. In other cases employees recall discovering the stock and using it or disposing of it. None of this evidence would justify an inference that stock may have remained in a particular restaurant until the 1999 competition, even when taken with the evidence of the claimants. In any event, as I have said elsewhere, the distribution of a carton of 1998 stock during the 1999 promotion would have been very obvious to those working in the restaurant. None of the restaurant witnesses gave evidence of having seen or heard of such a thing. Further, such an incident occurring in one restaurant could in no way explain the claims concerning other restaurants. The possibility of such a mistake being repeated in so many restaurants seems quite remote.
Rolls of spare 1998 labels
553 The most attractive explanation for the possible presence of a 1998 stamp in a restaurant during the 1999 competition is that single labels from a roll of spare 1998 labels were retained and found their way into the 1999 promotion. This possibility has led me to conclude that claimants holding disputed single stamps are potentially in somewhat stronger positions than those holding disputed double stamps. However, in many cases, the evidence establishes that at a nominated restaurant, the roll of 1998 labels had been discarded. There is no reason to doubt that evidence. In some restaurants there is only evidence that somebody was asked to do so. Even if that person does not recall doing so, or does not give evidence of having done so, there is little reason to doubt that he or she did so, especially where the roll has not been seen since the end of the competition. In the case of all restaurants, save those where there is express evidence that the rolls were discarded, there is evidence that the spare rolls were not seen again after the end of the 1998 competition. Given that they were usually kept in a safe place, often in the manager's office, the failure by managerial staff to see them suggests strongly that they were not there.
SUMMARY
554 The point of all of this evidence is that the various restaurant employees performed functions which would almost inevitably have led them to observe 1998 packaging or rolls of spare labels had such material been in the restaurants after the 1998 competition. Many of the employees no longer work for McDonald's, making their evidence that much more independent. It was not suggested to any of the restaurant witnesses that they were being dishonest. As I understand the applicant's case, it is that some or all of them may be mistaken. Although the evidence from restaurant personnel may not be conclusive of the question, it is a compelling body of evidence which indicates that in almost all restaurants, there was no 1998 packaging after August or September 1998. In a small number of cases, stock was detected at later times and dealt with promptly, with the exception of the Hoyts Regent restaurant. Even there it was disposed of well before the 1999 competition. These are all preliminary views designed to summarize, rather than to evaluate the respondent's evidence. It is now necessary to consider the evidence from the various claimants in the light of the respondent's evidence.
FACTORS WHICH MAY ASSIST IN ASSESSING CLAIMANTS' EVIDENCE
Single and double stamps
555 The capacity to identify a stamp or label as either a "single" or "double" is of considerable importance for two reasons. Firstly, it provides an objective basis for assessing the evidence of each claimant as to the provenance of his or her disputed stamp. Secondly, because 1998 single labels were supplied on rolls as well as on some products, it is possible that the odd stamp could have been introduced into the 1999 competition without attracting the attention which would probably have been attracted if a carton of blue 1998 packaging were to have been distributed during the 1999 promotion.
Colour of stamp backing
556 I have already said that the evidence from Pemara is such that, when taken with the evidence of the claimants and all of the other evidence in the case, there is virtually no possibility that stamps having the distinguishing characteristics of 1998 stamps were printed for the purposes of the 1999 competition. The characteristics to which I specifically refer are the colour of the backing of the stamp (red in 1998, yellow in 1999), the presence on 1999 stamps of the yellow "M" or "arches" and the absence of this motif from 1998 stamps and the other printing variations to which I have referred. In many cases, the backing of a disputed stamp is missing. I have already concluded that any stamp bearing the yellow "M" on its front was printed for the purposes of the 1999 competition, and that any stamp not bearing the yellow "M" was printed for the purposes of the 1998 competition. Of course I am referring only to those stamps relating to properties. Some of the other stamps were of different design.
557 I am satisfied that a 1998 stamp (ie without the golden "M") could not have been supplied with yellow backing attached to it. This follows from the Pemara evidence. Similarly, no 1999 stamp could have been supplied with red backing. These observations rely, to some extent, upon the assumption that no mischievous intervener deliberately manufactured a stamp, having the characteristics of a 1998 stamp, and circulated it during the 1999 competition. This is most unlikely. To the extent that any of the claimants or their witnesses suggested that stamps without the yellow "M" were supplied with yellow backing, I reject that evidence. Where they said that 1999 stamps were received with red backing, I also reject that evidence. It follows that all of the disputed stamps which are presently relevant were printed for the purposes of the 1998 competition and not for the 1999 competition. I am also of the view that when printed and distributed, they had red backing. It is now appropriate to consider how such stamps may have been distributed during the 1999 competition.
Barely possible events
558 It is possible to imagine any number of ways in which a single 1998 stamp may have been introduced into the 1999 competition. For example, there are numerous variations upon the scenario involving the mischievous intervener. I do not understand the applicant to rely upon such theories. Even if the evidence does not exclude these possibilities absolutely, it renders them highly improbable. There is certainly no evidence to suggest that such things occurred. Another possibility which was not expressly canvassed is that labels containing single stamps were affixed to products which ought to have borne labels containing double stamps and vice versa. This would have been possible at factories which manufactured products requiring double labels and other products requiring single labels. Polarcup manufactured large and medium cups, and Anzpac manufactured large and medium fry boxes and pie boxes. It is also possible that Pemara provided Detmold with double labels instead of single labels for hash brown bags. A roll of labels provided as spare labels (which ought to have been single labels) could have contained double labels. There is no evidence that any of these possibilities occurred, nor are they at all likely to have done so. Although I may not refer to these various theories in assessing the claimants' evidence, I keep them in mind. I accept that it is theoretically possible that the evidence of a particular claimant may be so compelling that one may have to accept, on the balance of probabilities, that an otherwise improbable scenario occurred. In the end the question must be whether or not each claimant has satisfied me on the balance of probability as to his or her claim.
Less unlikely provenance of 1998 stamps allegedly received during 1999 competition
Packaging supplied by Walkers - 1999
559 The applicant has suggested that during the 1999 promotion, Walkers may have supplied restaurants with 1998 or 1999 packaging with 1998 labels attached. The evidence suggests that neither the packaging manufacturers nor Walkers retained 1998 packaging after the 1998 promotion. No restaurant employee has suggested that stock delivered by Walkers in 1999 was identifiable as 1998 stock. I assess as improbable the proposition that 1998 packaging may have been supplied to restaurants in 1999. As to the possibility that 1998 labels may have been attached to 1999 packaging, this could only have occurred in the manufacturing process. For reasons which I have previously given, I consider it to be unlikely that such an event occurred. There is certainly no evidence that it did, other than the fact that the claimants say that they received 1998 labels during the 1999 competition.
Retention of 1998 packaging in restaurants
560 I do not dismiss the possibility that 1998 packaging may have been retained in a restaurant or restaurants following the 1998 competition. The evidence that the vast majority of restaurants deliberately exhausted their promotional stock does not exclude the possibility of a carton or cartons remaining undetected for one reason or another. As I have said, it was suggested to numerous witnesses that cartons of 1998 packaging may have been deliberately retained against the possibility of the competition being conducted again in 1999. All such witnesses rejected the proposition. Some pointed out that they were not interested in retaining stock for such a long period of time and that their businesses depended upon quick turnover of stock. Storage space was also limited. I reject the proposition that it would have been attractive for any restaurant owner or manager to retain stock for perceived financial advantage. The cost of a carton of any particular item of stock was quite low. There was more than adequate opportunity to exhaust remaining stock following the end of the competition. Indeed, even after the permitted run-out period, some restaurants continued to use it. In a small number of cases stock was found in restaurants at a later stage and then used or discarded.
561 The applicant relied heavily upon the fact that packaging was supplied in cardboard cartons. These cartons were readily identifiable, from labelling and printing, as being for the 1998 competition, for the 1999 competition or generic stock. Nonetheless, to the casual observer one cardboard carton may have looked very much like another if he or she did not take the trouble to read what was written on them or on labels attached to them. Many restaurant witnesses said that they looked at delivery labels to ensure that old stock was rotated. Stock rotation may have been very important when dealing with perishable goods, but it would be not quite as important when dealing with non-perishable goods such as packaging. However it was generally treated as important that during a promotion, promotional stock be used. To this end generic stock was either moved away or placed behind promotional stock. Signs were sometimes used to remind staff which cartons to use.
562 The applicant's case generally assumed that any introduction of 1998 packaging into the 1999 competition would have involved one or more complete cartons. Theoretically, it is possible that something less than a full carton may have been introduced, but there are good reasons for treating that occurrence as unlikely. Had an opened carton or loose packaging been present in a storage area, the distinctive colouring would have been obvious. It would therefore have been harder for its presence to be overlooked.
563 However the theory that a carton of 1998 packaging might have been distributed in a restaurant during 1999 also faces similar problems. The evidence suggests that a carton of packaging of any kind would probably last, in any of the restaurants, for at least a day and in many cases, for much longer periods. If a 1998 carton of packaging had been used in a restaurant in the course of the 1999 competition, then for at least a day, every serving position in the restaurant would have been using packaging of a colour which differed quite substantially from that otherwise being used during the competition. The colour differences, particularly between the fry boxes and cups in 1998 and those in 1999, were quite substantial. It is impossible to believe that had a carton of such material been used in the restaurant during the 1999 competition, it would not have been detected by the staff on the relevant shifts. Even if a particular employee had not been at the restaurant on the day in question, it seems probable that he or she would have heard of the matter from other staff members. The restaurant evidence suggested no such occurrences.
564 At this point I should say something about transfers. It was suggested that 1998 packaging may have been retained in one restaurant and transferred to another during the 1999 competition. While this is a bare possibility, I think it unlikely to have occurred. If staff for a restaurant were looking for 1999 promotional stock, it is unlikely that staff at another restaurant could hope to get away with passing off old stock. In any event, there is again the problem that nobody appears to have detected the distribution at any restaurant of a carton of 1998 packaging. In most cases, transfers were of complete cartons.
Rolls of spare 1998 labels
565 That leaves rolls of spare 1998 labels as the possible sources of disputed stamps. This possibility relates only to single stamps. It is possible that a roll of spare labels from the 1998 competition could have remained in a relevant restaurant from the end of the 1998 competition until the 1999 competition. There is also the bare possibility that such a roll was delivered to a restaurant in 1999. However the evidence is against this latter theory. The evidence concerning the delivery of rolls of spare labels to restaurants is perhaps not as comprehensive as is the evidence concerning other aspects of the case. Nonetheless it appears from Mr Lovell's affidavit and oral evidence that these rolls were provided with the POP kits. (See his affidavit at par 11, TS 1587 and the cross-examination of Mr Mangelsdorf at TS 3239). The kits were supplied to Walkers by different suppliers in 1998 and 1999. Thus there is little chance that 1998 labels were supplied in 1999. It seems that the respondent also supplied some rolls of spare labels to restaurants, but Ms Wallbridge said that these contained yellow stamps. Many restaurant witnesses said that the rolls provided in 1999 bore yellow labels. By far the least improbable source of a 1998 stamp during the 1999 competition is the remnants of a roll from the 1998 competition which had been retained in a restaurant.
Hash brown bags
566 Although I think it unlikely that a carton of 1998 fry boxes or cups could have been distributed through a restaurant in 1999 without staff members quickly becoming aware of that event, 1998 hash brown bags would not have been so easily identified had they been used in a restaurant in 1999. This is because the differences in appearance between the 1998 and 1999 bags were not as distinctive as were those between the 1998 and 1999 cups and fry boxes. Nevertheless, it would have been difficult for 1998 bags to escape detection. They were supplied in cartons of three thousand in 1998 and two thousand in 1999. Hash browns are only sold during the prescribed breakfast period. The evidence suggests that a carton of hash brown bags would have lasted, in most restaurants, for several days. (See, for example, the evidence of the witness, Heathcote at TS 3831.) Thus the opportunity for staff to become aware of such an incident would have extended over some days.
Pie boxes
567 Pies were not promotional items in 1998. Thus 1998 labels could not have been distributed attached to 1998 packaging. For reasons already given I think it highly improbable that Walkers supplied 1999 pie boxes with 1998 labels attached. This virtually excludes pie boxes as a possible source of 1998 double stamps. It does not exclude the possibility that a pie box could have been supplied with single labels from a roll of spare labels.
"Similar fact" evidence
568 I use this expression to describe the argument advanced by the applicant that in assessing each claim, I should have regard to the evidence of all other presently relevant claimants and indeed, to the fact that there are thousands of other claimants whose claims are not presently under consideration. The applicant has not explained the logical process pursuant to which such evidence may be used. The nearest thing to an explanation appears at p 2 of the written submissions where it is said that the number of 1998 food redemption stamps apparently tendered in 1999:
... cannot be explained simply by saying that customers had kept such stamps from 1998. This would require many people, who had no idea that a Monopoly competition would be repeated in 1999, to have kept their stamps for a year for no particular purpose.
569 It is also submitted that:
6,600 people, Australia-wide, made a claim based upon a rogue stamp. Some of these people made more than one claim. The respondent's case is that each of these people is either deliberately dishonest or greatly mistaken. That is, none of these collected a 1998 stamp in 1999 from the respondent's store. This contention is incredible. The evidence of the claimants heard to date must be taken in the context that they are not alone. Further, to the extent that each claimant is found to be credible, their evidence reinforces the evidence of the other claimants.
570 The submission appears to be that it is unlikely that so many people would have made false claims or been mistaken. I find this argument very difficult to assess, particularly as the statistical evidence suggests that the number of claims based on disputed stamps is much lower than might be expected had any relevant restaurant used a carton of 1998 promotional packaging, the only reasonably available explanation for claims based on disputed double stamps. The submission assumes general knowledge concerning both the level of deliberate dishonesty in our community and the capacity of human beings to make mistakes and/or to convince themselves of the truth of a proposition in which they wish to believe. The submission also fails to take account of a matter to which I have previously referred, namely the extent to which claimants were encouraged by media publicity and the apparent support of solicitors and the ACCC.
571 The stamps used in both competitions were designed to be collected. Collection involves retention. I am not surprised that many people may have retained stamps, collected in 1998, until May or June of 1999. In my experience, some human beings are very careful to discard material which is no longer of any use to them, but there are at least as many who keep material, either by oversight or otherwise, far past its appropriate disposal date. I have no difficulty in accepting that many people in Australia may have retained 1998 game stamps until the 1999 competition, not necessarily with the intention of using them again, and perhaps quite unconsciously. These stamps may then have been mixed with 1999 stamps so that in some cases, the possessor is now unable to say with certainty where or when any one stamp was obtained. Such a person, reading of other people presenting stamps said to be 1998 stamps in 1999, might well wonder whether or not he or she had also received the 1998 stamp in 1999. Some may convince themselves that they did. Such a phenomenon is by no means unknown to the courts. Some people may be uncertain but think that it is worthwhile to "have a go". Others may know that the stamps were not acquired in 1999 but consider that the respondent is "fair game", and that as others are being supported in their claims, they should also seek to benefit. All of these possibilities are accentuated when young people are involved in the process.
572 I do not suggest that any particular claimant has behaved in any of these ways. I make these observations only in response to the applicant's suggestion that it is incredible that so many people should have so behaved. I do not know how many people competed in this competition, but it was a very large number. It is impossible for me to say whether 6,000 or 7,000 was an unduly large number of mistakes and/or dishonest claims. I do not know how many of those 6,000 odd people will persist in their claims to the extent of swearing to have received their stamps in 1999. Although I do not treat as irrelevant the fact that there have been many claims based upon 1998 stamps, I find it difficult to draw any useful inference from it.
573 Particularly in the early stages of this litigation, the applicant seemed to believe that all of the disputed stamps had been distributed as the result of a common deficiency or series of deficiencies in the respondent's conduct of the competition, that there was a unifying theory which would explain all of the disputed claims. As discovery has proceeded, and as the evidence has emerged, it seems clear that this is not so. Nonetheless, from time to time vestigial remnants of this belief have emerged. The suggested use of the evidence of one claimant to support all other claims may be an example of this in that it assumes a common cause and then seeks to prove it, without ever identifying it.
574 Throughout the case I have permitted the applicant to lead evidence from non-claimant witnesses who say that they received 1998 stamps in 1999, where they claim to have received their stamps from a presently relevant restaurant, that is one named by a claimant as the possible source of a disputed stamp. I have refused to allow evidence from witnesses who claim to have received 1998 stamps from restaurants which are not presently relevant. The rationale behind this approach is that if a claimant can show that other people received 1998 stamps at a relevant restaurant in 1999, it tends to prove that there were 1998 stamps in that restaurant in 1999. Regardless of how the stamps may have arrived in that restaurant, the evidence assists in proving the claim. However, where the evidence relates to a restaurant not presently relevant to a claim, it cannot assist any claimant to prove his or her case, at least in the absence of further evidence. By itself, such evidence does not indicate whether the stamp in question was in the restaurant because of retention by the restaurant or because of supply in 1999 by Walkers. In the former case, the evidence does not demonstrate that any other restaurant also retained 1998 packaging. It could only assist in demonstrating supply by Walkers (which might be relevant to demonstrate possible supply to other restaurants) if the possibility of retention by the restaurant in question were excluded. No attempt was made to do this.
Similar fact evidence - the respondent's case
575 It could be argued that the respondent's case also invites reliance on "similar fact" evidence. In a sense, the statistical evidence is of that nature. It assumes that the most likely explanation of the claimants' assertions is that cartons of 1998 packaging were either retained by restaurants or supplied by Walkers in 1999. It then points to the small number of claims from relevant restaurants compared to the number to be expected if each restaurant had distributed a carton of 1998 packaging in 1999. The respondent invites me to reject the possibility that a carton of 1998 stock was so distributed because so many potential "claimants" have not claimed. I have previously indicated my reservations concerning such evidence.
576 A second possible application of "similar fact" evidence in the respondent's case is the evidence of many restaurant staff members concerning the presence of 1998 packaging in the restaurants in 1999. If the applicant's very loose approach to this difficult area of the law of evidence were adopted, it may well be that the respondent could point to this large body of evidence as corroborating the evidence of each individual witness and to the absence of any witnesses amongst restaurant staff who support the applicant's case. (Even Mr Harrison (Deception Bay) did not say that he had seen 1998 packaging during the 1999 competition, only red stamps.)
577 I do not see how "similar fact" evidence can assist in resolving these claims, save where two or more claimants assert that they received disputed stamps at the same restaurant. However a claimant who says that he or she received a disputed stamp at one of two or more possible restaurants does not offer much support to other claimants at those restaurants.
Credibility and reliability
578 To this point I have made numerous observations as to the relative likelihood of certain events having occurred in the course of the manufacture and distribution of 1999 packaging, those events being events which may have led to the supply to the various claimants of 1998 stamps in the course of that competition. I have so far excluded only the possibility that Pemara manufactured 1998 stamps during the 1999 production run. In so doing I have kept in mind all of the evidence in the case including that of the claimants, in effect assuming that the claimants' evidence is prima facie credible. I have formed preliminary views as to the likelihood of certain events occurring in the course of the manufacture of packaging and its distribution by Walkers, which events may have brought about supply of the relevant stamps to the claimants. Again, I have kept in mind all of the evidence in forming these preliminary views and have assumed that the claimants' evidence is prima facie credible. I have also addressed the relative probability of various events which may have occurred in the restaurants during the 1998 or 1999 competitions or between those competitions. That exercise was conducted upon the same basis.
579 I propose now to outline the claimants' evidence, place it in the context of the other evidence in the case and assess the credibility and reliability of all of the relevant evidence. In this way I will be able to reach final conclusions as to all presently relevant claims. In a case such as this, it would be foolish to say that observations as to the demeanour of witnesses have played a large part in the decision-making process. Nonetheless, I have formed favourable or unfavourable views of some claimants and their supporting witnesses. Demeanour played some part in that. There was also reason to doubt some of the respondent's witnesses, either because of contradictions in the evidence, because of contradictions between evidence and contemporaneous records or, in one or two cases, because a witness might have seemed a little too enthusiastic in his or her assertion of a position favourable to the respondent. Where any such perception seems to be of importance, I have referred to it in the course of my summary of the respondent's evidence. However there are very few, if any claims where the evidence of any one of the respondent's witnesses is critical to the outcome.
580 One other matter requires comment. Many of the claimants gave evidence which, in light of other evidence in the case, seems unlikely to be correct. Much of this evidence was as to the circumstances in which disputed stamps were obtained. For example, many said that they had received disputed 1998 stamps with yellow backing or on purple packaging. The applicant submitted that when this leads to doubt concerning a claimant's case, I should consider the possibility that the claimant may be in error and that the reality may have been more favourable to his/her case. Whilst this may be so, it is difficult to know how one can simply ignore aspects of a claimant's evidence which undermine his/her claim. The evidence, favourable or unfavourable, must be viewed as a whole. The claimant defines his or her case and effectively assumes the onus of proving it. If an aspect of the evidence is unlikely, then it will probably not be accepted. That will not necessarily undermine other evidence from the same source, but it may do so.
CLAIMANTS' EVIDENCE
MAUREEN ANN BRENNAN
Other Witnesses for Claimant: L J Brennan, M D Brennan, E J Kefford
Restaurant: Bribie Interchange
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 6 June 1999
581 Marcus Brennan, the son of Mr L J and the nominated claimant, claims to have received a Park Lane game stamp from the Bribie Interchange restaurant on 6 June 1999. Mr and Mrs Brennan have two children. On 6 June 1999 the family came from Cooran on the near north coast to Brisbane to acquire skiing equipment for the Brennans' elder son, Lee who was planning to visit New Zealand on holiday. On the way home they stopped at the McDonald's restaurant at the Bribie Interchange, using the drive-through facility. This appears to have been the only occasion on which they had resorted to that restaurant. They were regular customers at the Noosaville restaurant. They ordered four Big Macs, four regular fries and four regular Cokes. Mr Brennan did not see the faces of the stamps which were obtained on that occasion (TS 675 ll 25-26). He could not remember the colour of the cups or fry boxes, nor the colour of the labels received with them. Mr Brennan recalled that Marcus was collecting game stamps during the 1999 competition and "storing them in the back pocket of my car seat".
582 Mrs Brennan recalled the visit to the Bribie Interchange restaurant. They purchased four Big Macs, four fries and four Coca-Cola drinks. She recalled Marcus asking for her stamps. She did not collect game stamps during the 1998 competition, nor did she see any member of her family do so. She was unable to comment upon the colour of the packaging or the colour of the game stamps received on 6 June.
583 Marcus recalled going to the Bribie Interchange restaurant on 6 June and receiving game stamps on boxes of fries and Cokes. He recalled that one was a Park Lane stamp. He remembered it because it was a blue stamp. This is a reference to the colour bar on the front of the stamp. He knew that it was one which was needed in order to win a major prize. He placed it in the back pocket of the seat, together with other stamps which he had collected. On the following Saturday he and Edwin Kefford went to the Noosaville restaurant where they purchased a thick shake with which Edwin received a Mayfair game stamp. Later that day, Mrs Brennan came to Edwin's home to collect Marcus. He retrieved the Park Lane stamp from the seat pocket. He denied having participated in the 1998 competition. He said in cross-examination that he had not discussed the 1999 competition with anybody at school other than Edwin. He first heard about it when the family went to the Bribie Interchange restaurant on 6 June. This may be inconsistent with his father's evidence that he had been storing stamps in the seat pocket, but the evidence is a little imprecise.
584 Marcus had known of the 1998 competition but "I didn't really participate in it because we didn't go - I didn't go to school down in Noosa last year, and that's the closest McDonald's to me, and so I didn't go to McDonald's much." When asked what he meant by "participate" he said, "I didn't go in the competition". He was then asked, "But you collected some stamps?" To which he replied, "Yes". He was asked, "But you didn't send them in to claim a prize?" He replied, "No. Last year I did not." He was asked, "But you did collect some stamps last year?" He replied, "Yes." He subsequently said that he "didn't really collect them" and that he was not sure where he kept any stamps which he may have collected last year.
585 The cups from which the stamps were removed at Bribie Interchange were similar to exhibit 10 (which contains examples of the 1999 packaging) and the stamps were yellow. He was unable to remember the identities of any of the other stamps obtained at Bribie Interchange or at Noosaville. He was sure that the game stamps were yellow and not red. Marcus was not asked about the colour of the fry boxes.
586 Edwin Kefford was born on 15 February 1986. He said that on 12 June 1999 he and Marcus Brennan went to the restaurant at Noosaville. They received a tray mat. Each of them bought a drink bearing game stamps. One of the game stamps which he received was Mayfair. He realised that this was one of the stamps necessary to win a car. They took the tray mat and the stamp to Edwin's home. When Mrs Brennan came to collect Marcus, he retrieved a Park Lane stamp from the car. They then went to the Noosaville restaurant to see if they had won. Edwin was not aware that there had been a McMatch & Win competition in Australia in 1998. He was then living in the United States of America.
587 The circumstances in which Marcus came to retrieve the Park Lane stamp from the car are not clear. Edwin did not suggest in his affidavit that Marcus had, at Noosaville, immediately recognized the Mayfair stamp as matching the Park Lane stamp already in his possession. He rather suggested that Marcus discovered this when he checked the contents of the seat pocket at a later stage. Edwin said that he saw Marcus produce a "bunch of tickets" from the back of the seat and look through them, producing the Park Lane stamp from amongst them. This appears to be the point at which Edwin formed the view that they may have won a prize. He had discussed the competition with other children at school and knew that some stamps were harder to get than others. He knew that Park Lane was one of the more difficult ones. Many of his acquaintances held Mayfair stamps. He was not aware of anybody, other than Marcus who had received a Park Lane stamp. He thought that Marcus was probably present during some of the conversations with other children at school. Edwin had seen game stamps which other children had collected. He had about twenty stamps which he kept on a cabinet in his room. In cross-examination he said that when they left the Noosaville restaurant, he was not aware that Marcus had a Park Lane stamp. However, he then said that Marcus had said that he might have such a stamp. (See TS 714 ll 1-5.)
588 Clearly, the only evidence as to the provenance of the Park Lane stamp comes from Marcus, although his parents confirm that stamps were obtained at the Bribie Interchange restaurant on 6 June. The stamp was recovered from a pocket in the seat of the car. Once it is accepted that Marcus collected some stamps in 1998, the possibility arises that 1998 stamps could have remained in the car without the knowledge of Mr or Mrs Brennan, despite Mr Brennan's evidence concerning his cleaning of it. Single stamps would have been provided with the fry boxes and cups supplied pursuant to the order placed by Mr Brennan. Marcus was firmly of the view that the stamps were yellow and that the cups were purple. The disputed stamp is clearly a 1998 stamp.
589 I have previously indicated my view that a 1998 label could not have yellow backing. As I have elsewhere demonstrated, it seems unlikely that 1998 labels were attached to 1999 packaging in the course of manufacture. Further, if such an event had occurred, then one would expect it to have occurred on a relatively large scale, by which I mean that a significant number of cups or boxes would have had 1998 labels attached to them, not just one. One might reasonably have expected the employees at the restaurant who gave evidence to have noted such an irregularity. In any event, Marcus's description of the cups is consistent with their being 1999 packaging. As to the possibility that the stamp was supplied with 1998 packaging, it is unlikely that Walkers supplied any such packaging in 1999. The restaurant may have retained 1998 packaging or received it by way of transfer, but the restaurant evidence does not support that theory. Further, to the extent that Marcus has identified the packaging, it was 1999 packaging.
590 The least improbable explanation for the receipt of a 1998 single stamp in 1999 would be that it came from a roll of spare 1998 labels. Mr Gaiero, the manager of the Bribie Interchange restaurant said that he recalled the 1998 roll being exhausted. He received complaints from customers who had received hash brown bags without labels. He said that had labels been available, they would have been provided. Further, he recalled the spare labels used in 1999 being yellow rather than red. There is also the evidence of Ms Garrad that she did not see any of the 1998 spare roll after the end of the competition although she had opportunity to do so. Keshena Bridget Poll also said that the roll had been exhausted during the 1998 competition. Rachel Katie Paris said that the labels on the spare roll used in 1999 were yellow. Given clear evidence that the 1998 roll of spare labels was used in that competition, the restaurant evidence as to 1998 packaging and the unsatisfactory evidence from Marcus as to his participation in the 1998 competition, I am unpersuaded that he received his disputed stamp in the course of the 1999 competition.
591 This claim highlights some of the difficulties inherent in the case. I accept that Mr & Mrs Brennan are honest witnesses. It is probable that Marcus has convinced himself that he obtained the stamp at Bribie Interchange, but I am not satisfied that he did so.
JOHN WILLIAM BUCHTMANN
Other Witnesses for Claimant: Nil
Restaurants: High Street, Penrith, Penrith Leagues Club, Emu Plains
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: On or before 29 July 1999
592 Mr Buchtmann had collected stamps from the beginning of the 1999 competition. On 29 July 1999 he realised that he had the complete set: Trafalgar Square, Fleet Street and The Strand. He had kept them in his pocket and then on his dressing table. Periodically, he would attach them to his tray mat. The products with which he acquired game stamps were large drinks, large fries and apple pies. Although he was unable to identify the promotional packaging in exhibit 10 as that used for fry boxes or apple pie boxes in the competition, he said that the exhibit 10 cups were similar to those used during the competition. Pies could not have been supplied in 1998 boxes. At par 6 of his affidavit, he said that the colour on the back of the stamp was red. He admitted having collected stamps during the 1998 competition but said that he had thrown out all stamps and tray mats. On 29 July 1999, he approached the manager of the Emu Plains restaurant who pointed out that the Trafalgar Square stamp was not a 1999 competition stamps. Nonetheless he was given a redemption envelope. He did not forward it until 10 August. The claim was rejected.
593 Mr Buchtmann's double stamp could not have come from a roll of spare labels. He could only have received it in the course of the 1999 competition if a red-backed stamp had been affixed to 1999 promotional material or if 1998 promotional material was being used in the restaurant. As I have said, it is unlikely that a 1998 stamp was affixed to 1999 promotional packaging in the manufacturing process. The applicant suggested that 1998 packaging may have been retained in the restaurant or perhaps supplied to it and used in the course of the 1999 competition. As I have elsewhere demonstrated, a carton of packaging of any kind would probably last for at least a day, and in some restaurants, or in the case of some products, for much longer periods. In those circumstances it is difficult to believe that one or other members of the staff who gave evidence would not have noticed the irregularity or heard something about it.
594 Mr Buchtmann was unable to say at which of three restaurants he had obtained the stamp in question. This is, to some extent, understandable. A person might patronize more than one restaurant and collect game stamps, but not know at which restaurant he had obtained any one stamp. It must be accepted, however, that such evidence, being imprecise as to the circumstances in which the stamp was obtained, will not generally be as persuasive in a case of this kind as that of a person who upon purchasing the product, immediately peels off the relevant stamp and is thereafter able to identify it as having been obtained at a particular time and place.
595 Those who worked at the identified restaurants were confident that no 1998 promotional material remained in the restaurant following that promotion. In the case of the Penrith Leagues Club Mr Tourish said as much, as did Mr Small. Mr Tourish recalls directing staff to remove game stamps from remaining stock at the end of the 1998 competition. He subsequently withdrew that direction. He was confident that all stock had been used within a few days and that no material remained in the restaurant thereafter. Whilst accepting that this evidence may not absolutely exclude the possibility that 1998 packaging remained in the restaurant, it suggests that it is highly unlikely. It is also unlikely that such packaging was delivered in 1999 through the Walkers system.
596 Similarly, in the case of Emu Plains, the licensee, Mr Bridges, recalls that at the end of the 1998 competition, game stamps were removed from promotional packaging which was then used until it had been exhausted. He was sure that no 1998 packaging remained in the restaurant after the end of the run-out period. Mr Scott Anthony Bridges supported this evidence. There was a transfer of stock into this restaurant. It is difficult to believe that none of the witnesses from this restaurant who gave evidence would have become aware of the distribution of a substantial quantity of 1998 stock had that event occurred. The evidence from Penrith High Street indicated that there was no 1998 packaging in that restaurant during the 1999 competition. There was evidence of transfers into this restaurant during 1999. The comments made concerning Emu Plains apply equally to Penrith High Street
597 At the time at which Mr Buchtmann discovered and presented his disputed stamp, the publicity concerning the problems with the competition was well advanced. Although he had collected a number of stamps, he disposed of them on or about 29 August, some two months after these proceedings had been commenced and some days after his claim was rejected. It was also five days after he had sworn his affidavit. One might reasonably have expected him to retain such material. It seems at least likely that the other half of the disputed stamp would have been amongst those stamps. Its relevance to the case would have been obvious even to a lay man. He did not post his claim until 10 August, some twelve days after he said that he had discovered that he had a winning combination. This may be attributable to the uncertainty surrounding the competition, but it may also suggest uncertainty on his part as to the legitimacy of his claim.
598 Acceptance of his claim really depends upon acceptance of his assertion that he had disposed of all stamps obtained during the 1998 competition and of the inference which he urges that he must have obtained all stamps which were in his possession on 29 July during the 1999 competition and from one of the three nominated restaurants. He has no actual recollection of obtaining the disputed stamp. His evidence is also undermined by the fact that to the extent that he was able to identify the relevant packaging, it appears to have been 1999 packaging and so unlikely to have borne 1998 game stamps. Given all of the other evidence in this case as to the distribution system and as to the absence of 1998 stock in the restaurants after the 1998 competition, I am not willing to draw that inference.
Other Witnesses for Claimant: Nil
Restaurant: Boronia
Disputed Game Stamp: Double (King's Cross)
Alleged Date of Acquisition: 23-25 July 1999
599 The claimant says that she patronized the Boronia restaurant between 23 and 25 July at about 6.00 pm. She probably used the drive-through facility. She does not recall what she purchased, but it was probably an apple pie, a Big Mac, a Meal Deal or a Quarter Pounder Meal Deal. She received a number of game stamps with her purchases, one of which was the King's Cross stamp. She presented her tray mat to a female employee at the restaurant on 9 August 1999 and received a redemption envelope. She forwarded her claim on the same day and was advised on 18 August that it had been rejected. She was not aware of the 1998 competition. She did not participate in it. She does not like McDonald's products. It was convenient to use them in 1999 because she was travelling "a lot". Further, her mother was ill and she did not have time to cook. She purchased a new car in 1999. When she obtained stamps in 1999, she kept them in her car and when she arrived home, affixed them to her tray mat. She said in cross-examination that she thought that she had received a medium drink on the relevant occasion. Such a cup would bear a single stamp.
600 The alleged acquisition occurred very late in the competition and after the publicity surrounding the problems had commenced. Ms Cain did not present her claim until 9 August 1999. A double stamp should only have been obtained on a large drink cup, a large fry box or a pie box. As pies were not promotional products in 1998, she could not have received an apple pie with 1998 packaging. For reasons which I have given, it is unlikely that 1999 packaging was supplied bearing 1998 labels. This leaves only the possibility that the disputed stamp was provided with a product other than apple pies, which product was supplied with 1998 packaging. She did not identify the exhibit 10 packaging as similar to that received by her, but she thought the stamps had yellow backing. It is virtually impossible that the disputed stamp had yellow backing.
601 For reasons which I have given I consider it most unlikely that 1998 packaging could have been distributed in the course of the 1999 competition without restaurant staff noticing it. There is evidence from Mr Horne, the owner of the restaurant that the 1998 packaging was used up after the end of the 1998 run-out period, with the stamps removed. In addition to Mr Horne, four employees at the restaurant gave evidence, all of whom said that they did not see any 1998 stamps in the restaurant during the 1999 promotion. There may have been some transfers into this restaurant during the 1999 promotion, but there is no reason to believe that 1998 packaging was involved, apart from Ms Cain's claim.
602 A number of aspects of Ms Cain's evidence cause concern. The first is her inability to identify the product upon which she obtained the stamp. The only suggestion which she made was that she obtained it on a medium cup, but that should have borne a single stamp. Secondly, her stamp was allegedly obtained very late in the competition, well after the matter had become one of national interest. It seems most unlikely that the restaurant staff would have overlooked 1998 packaging or red stamps had they been in the restaurant at that stage. Thirdly, there is the relatively unconvincing explanations given by Ms Cain for patronizing McDonald's in 1999 and not in 1998. She claims not to enjoy McDonald's products, but to have used them in 1999 because she was travelling and because her mother was ill. It is a little difficult to accept that in one year she would not use the product at all because of her dislike but in the following year, use it merely because it was convenient. There must have been many times in 1998 when it would also have been convenient to patronize McDonald's. Fourthly, Ms Cain did not submit her claim until 9 August. Even if she had received it between 23 and 25 July as she claims, one might reasonably have expected that she would have presented it before 9 August if she believed that she had won a prize. Her only explanation for the delay was her mother's illness, which she also advanced as a reason for patronizing McDonald's in 1999. In the circumstances I am unpersuaded that she received the disputed stamp in the course of the 1999 competition.
Other Witnesses for Claimants: Nil
Restaurant: Australia Fair
Disputed Game Stamps:
(1) Single (Park Lane)
Alleged Date of Acquisition: 7 July 1999
603 Mrs Campbell regularly breakfasted at the Australia Fair restaurant whilst her husband attended fitness sessions at a nearby hotel. He would join her for coffee after such sessions. On Sundays, after Church, they regularly had breakfast at Runaway Bay. On one occasion, whilst having breakfast at Australia Fair, Mrs Campbell saw a tray mat and collected a stamp. Her grandchildren were coming to stay and so she was anxious to win a prize for them. She took the tray mat home and thereafter, whenever they went to a McDonald's restaurant, she would affix any stamps to the tray mat. On 28 and 29 June 1999, they were at Airlie Beach and took their grandchildren to the local McDonald's restaurant. On 30 June they all had breakfast at Roma Street. Mrs Campbell collected game stamps from each of these visits but as she had not taken the tray mat with her, she kept them in her bag. When she returned home, she affixed the stamps to the tray mat.
604 On 7 July her husband dropped her at Australia Fair and went to his fitness class. When he returned they did not stay for coffee as they were in a hurry. On Thursday, 8 July she did not go to Australia Fair. She remained at home. Whilst her husband was at his fitness session, she retrieved the various stamps which she had collected on the previous day and affixed them to the tray mat. She saw that she had completed the dark blue property set (Mayfair and Park Lane) and the set of four railway stations. She later obtained redemption envelopes from Australia Fair and posted the relevant documentation. The claims were declined.
605 In cross-examination Mrs Campbell said that she might have had a hash brown or an apple or cherry pie with her coffee whilst waiting for her husband. She did not know how many stamps she had obtained on Wednesday 7 July, nor what they were. At TS 854 she said that when her husband came back to the restaurant on that day, they had burgers and then went to a medical appointment. This was not consistent with her claim that she had not followed her usual course of affixing the game stamps to the tray mat at the restaurant because they were in a hurry. She later suggested that they may have returned for lunch after the medical appointment. She said that on that morning, she received two stamps with an apple pie.
606 Under cross-examination, Mrs Campbell was not impressive. One can understand uncertainty as to what they may have eaten on 7 July. However her contradictory evidence concerning their movements on that day may suggest false explanations designed to bolster her case as to acquisition of the disputed stamps. When the difference between a single stamp and a double stamp was explained to her, and it was pointed out that this difference at least reduced the possibility that either stamp came from an apple pie, she suggested that it might have come from Airlie Beach. It was then pointed out to her that she had claimed to have affixed all stamps obtained at Airlie Beach to the mat prior to 7 July. She recalled receiving yellow stamps with 1999 packaging. She identified the 1999 apple pie, cherry pie and hash brown packaging in exhibit 10. The disputed stamps cannot have had yellow backing, and it is most unlikely that they came with purple packaging unless they had been provided from a roll of 1998 labels. Mr Campbell's evidence did not take the matter any further.
607 The evidence from Messrs Bell and Stalker and Ms Ruhs suggests that there was no 1998 packaging or spare 1998 labels at Australia Fair after the 1998 competition. The evidence from Airlie Beach and Roma Street is to similar effect. Of course, Mrs Campbell's evidence is not consistent with her having acquired the disputed stamps other than on 7 July at Australia Fair. By this time, publicity concerning the problems with the competition was wide-spread.
608 I would be reluctant to conclude that Mrs Campbell was deliberately dishonest in what she said. It is possible that she was merely confused and it is, I suppose, even possible that she may unknowingly have received 1998 stamps from her grandchildren. It is not profitable to speculate upon these matters. I say only that I do not accept her evidence that she obtained the two disputed stamps in the course of the 1999 competition at Australia Fair, Airlie Beach or Roma Street. As that is her case, it must fail.
Other witness for Claimant: Jimmy Boyd
Restaurant: Gundagai
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 16 June 1999
609 Ms Carr attended the Gundagai restaurant on 16 June 1999 and purchased a "Value Meal". She peeled a stamp off a fry box. It was a blue Park Lane stamp. She had previously obtained a Mayfair stamp. She subsequently claimed the prize, but her claim was declined. She said in cross-examination that she had received the stamp on a large fry box which was similar to that in exhibit 10. The stamp was yellow. The other half of the double stamp was a railway station. She discarded it. After her claim was declined she threw away all other game stamps and her tray mat, thinking that they would be of no further use. She said in cross-examination that she had not competed in the 1998 competition because she was then working at McDonald's. It was suggested to her that she had told Mr Aichinger, the restaurant manager, that her boyfriend had one of the Mayfair/Park Lane pair and she had the other. He had received his stamp at Wagga. She denied this conversation. According to her affidavit, on the day following her receipt of the Park Lane stamp, she took her stamps to the restaurant. However, in the course of cross-examination (TS 827) she appears to have agreed that she said to Mr Aichinger on 17 June that "I got them here the other week". When it was pointed out to her that such statement must be incorrect because she claimed to have received one stamp on the previous day, she replied that she had previously said only that she had received one of the stamps at the restaurant "the other week".
610 Her boyfriend, Jimmy William Boyd, also gave evidence. He said that he was with her at the Gundagai restaurant when she received a Mayfair stamp. He said that they put all of their stamps into the ashtray of his motor vehicle. That evening they went to Ms Carr's home and affixed the stamps to a tray mat. He was, and is stationed at Wagga with the Air Force. He denied having participated in the 1998 competition.
611 The disputed stamp could not have had a yellow back. It is also most unlikely that it was affixed to 1999 packaging. Messrs Aichinger and Duncan effectively exclude the possibility that there was 1998 packaging in the restaurant. The claimant does not suggest that there was. She says that she received 1999 packaging. It is difficult to see any reason why Mr Aichinger would have invented his account of the conversation between Ms Cain and himself. I am inclined to accept his evidence on this matter. That throws further doubt on her claim. I do not accept that the claimant obtained the disputed stamp during the 1999 competition.
Other witness for Claimant: Emma Clarke
Restaurants: Redcliffe, Kippa-Ring
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Prior to the week immediately prior to 25 June 1999
612 Donna Maree Clarke said that she and her daughter, Emma collected game stamps over a period of time, presumably during the 1999 competition. They only ever patronized two restaurants, Redcliffe and Kippa-Ring. They normally purchased hash browns, large and medium fries, and large and medium Cokes. On Friday, 25 June, at home, Emma showed Ms Clarke three red stamps, The Strand, Fleet Street and Trafalgar Square. The description of them as "red" relates to the coloured bars on the stamps rather than to their backs. Ms Clarke went to the Redcliffe restaurant and obtained a tray mat and redemption envelope. She affixed the stamps to the tray mat and posted her claim. It was rejected. Ms Clarke does not claim to recall when she obtained the stamps but thought that it was probably in the first two weeks of the competition. In the week prior to 25 June they had not been to the restaurant because one of her other children was ill.
613 As far as Ms Clarke could recall, all stamps which she had received had yellow backs. She obtained them all during the 1999 competition. During the 1998 competition the family were living at a different address. They moved in January 1999. At the time of moving, they discarded any rubbish or "items that were not necessary to the family". She said that if they had any stamps at that time, they would have been lost during the move. I do not find that statement very convincing. She also said that they had not participated in the 1998 competition and that she had not kept any stamps from 1998. She identified the 1999 promotional material (exhibit 10) as being similar to that which she obtained in conjunction with her purchases and accepted that her stamps were probably yellow. She took them home in her purse. She kept stamps in the centre console of her motor vehicle and also in a container at home.
614 Ms Clarke also said that on 25 June Emma told her, whilst they were in the car, that she had three red stamps which she had taken from Ms Clarke's purse and from the centre console of the car. (See TS 311-12.) This seems to be inconsistent with par 6 of her affidavit. When this inconsistency was drawn to her attention, she said that she had made a mistake in the affidavit.
615 Emma said that she was born on 11 September 1984. Her affidavit is similar in terms to that of her mother. In particular, she said that she collected stamps and put them in the console of the car or in her mother's purse. Her mother also stored stamps in a container on the window sill of the kitchen. Most had been collected during the first two weeks of the competition. On 24 June Emma realised that she had a complete set of red stamps, The Strand, Fleet Street and Trafalgar Square. She told her mother of this. Her mother then rang the Redcliffe restaurant. On Friday, 25 June they went to the restaurant to get a tray mat. In the course of cross-examination she said that they had been at home when she discovered that she had the winning stamps and drew her mother's attention to this. The witness had been sorting through a large number of stamps and found the three red stamps. She had not entered the competition in 1998 and had not collected game stamps. She was aware of the 1998 competition but had not discussed the 1999 competition with her friends at school. Emma said that she had received yellow stamps on purple packaging.
616 The stamp is single and so may have come from a medium cup, a medium fry box, a hash brown bag or a roll of spare labels. Ms Grealy (Redcliffe) said that the restaurant had exhausted its 1998 promotional packaging shortly after the end of the 1998 competition. She did not see the roll of spare game stamps after the end of the competition. She had ample opportunity to see any old stock because she regularly conducted stocktakes. As for Kippa-Ring Mr O'Shea and Ms Fiechtner similarly excluded the possibility that 1998 stock had been retained after the end of the competition. Neither had seen the roll of 1998 spare labels since that time.
617 As is the case with some other claimants, neither Ms Clarke nor Emma actually recalls receiving the disputed stamp. They invite me to infer this, based upon their denials that they had competed in 1998, evidence concerning their moving house and their assertions that they had purchased McDonald's products in 1999. Their case is really only as good as their assertions that they did not compete in 1998 and did not retain stamps from that competition.
618 Both ladies say that they received yellow stamps on 1999 packaging. It is quite unlikely that the disputed stamp would have been affixed to such packaging or that it would have had a yellow back. Had it come from a roll of spare 1998 stamps, it would have had a red back. Given the apparent inconsistencies in the evidence and the absence of any direct evidence from them as to the acquisition of the disputed stamp, I cannot conclude that the disputed stamp was obtained during the 1999 competition. Ms Clarke and her daughter may not be deliberately untruthful. It would have been quite easy for them to convince themselves that they had no stamps other than those obtained during the 1999 competition and that the disputed stamp must have been obtained in 1999.
Other Witnesses for Claimant: Nil
Restaurant: Hoyts Regent
Disputed Game Stamps:
(1) Double (Trafalgar Square)
Alleged Date of Acquisition: 6 June 1999
619 Ms Cole said that she had not patronized McDonald's restaurants during 1998 and was unaware of the 1998 competition. She denied collecting game stamps or purchasing McDonald's products during that year. She initially claimed to have visited McDonald's restaurants twice in 1999, or at least so I understood her affidavit. In March or April, she visited the Mitchelton restaurant and on 6 June, she and a friend, Margaret Bowling, took their children and some of their friends to Brisbane for Queensland Day celebrations. They had lunch at the Hoyts Regent restaurant in Queen Street. Her friend's children were aged 15 and 11. The children purchased their own food. Ms Cole subsequently noticed them peeling game stamps from the packaging. She could not remember if she had purchased anything herself. Some of the children won instant prizes and her son, Craig said that "... if you do not want your tickets I'll collect them". He collected a number of stamps from the others and ended up with a large pile. Ms Cole told him that he could look at them that evening at home. She took a tray mat away with her when they left the restaurant.
620 They then went to a fun park but returned to the same restaurant at about 3.30 pm. The children proposed to claim food prizes won during the earlier visit. Some of them purchased drink or food and received more game stamps. They peeled off the stamps and, save for any instant prizes, gave the stamps to Craig who gave them to Ms Cole. She placed them in her handbag with the other stamps. They went home by train. When they arrived home, Craig looked at the stamps and arranged them by colour. Ms Cole noticed that he had collected three of the red stamps, The Strand, Fleet Street and Trafalgar Square. She then contacted the manager of the Arana Hills restaurant and made inquiries concerning the competition. She subsequently took the stamps to him for inspection. She obtained a redemption enveloped and unsuccessfully submitted the stamps. One disputed stamp (the Trafalgar Square stamp) appears to be badly stained. Ms Cole says that Coca-Cola was spilled on the stamp at the restaurant.
621 Some weeks later, after her first claim had been rejected, Ms Cole discovered a second matching set, Leicester Square, Coventry Street and Piccadilly, Coventry Street being the disputed stamp. She also submitted these stamps unsuccessfully. She submitted this claim under the name McPeake, her maiden name. In par 53 of her affidavit she said that, "There is nothing sinister with this. It has to do with my separation from my husband". Her husband is unaware that she has changed her name by deed poll from Gathercole to Cole. It is curious that she did not take this precaution when making the first claim. The second claim was made in the names of J and D McPeake. The first was made in the names of Judith and Craig Cole. Different addresses were used in each case. The first was her address and the second, her brother's. Despite her assurances, I find her use of different names to be suspicious, if not "sinister" and her explanation less than satisfactory. Her son is twelve years old. In cross-examination she said that there were six children in the group at the restaurant, including Craig, Ms Bowling's children and their friends.
622 It seems that on another occasion, Ms Cole presented a 1998 Second Chance Draw stamp at the Caloundra restaurant, together with other Second Chance Draw stamps from the 1999 competition. (See exhibit 56.) Exhibit 57 contains four other tray mats which Ms Cole was using in the course of the competition. One of them also bears a Second Chance Draw stamp. As I understand it, such a stamp for the 1998 competition bears the words, "Second Chance Draw!" in white on a red background above a yellow question mark. The equivalent stamp for the 1999 competition bears those words in white on a black background. There are also additional words at the foot of the stamp used in the 1999 competition. Exhibit 58 contains three items which Ms Cole claims also to have received in the course of the 1999 competition. One of these is for The Strand and one, for Fenchurch Street Station. They have red backs. The third is red backing with no stamp on the front. The red backing on the Fenchurch Street Station appears not to match the stamp. The stamp is a single, but the backing appears to be appropriate to a double. It also appears to have been applied upside down. Exhibit 59 is an envelope containing a number of other stamps allegedly received in the course of the 1999 competition.
623 The witness was asked whether she had been into any other McDonald's restaurants in the course of the 1999 competition. She said that she had been to Goodna, Alderley, Albion, Aspley, Mitchelton and Arana Hills. She agreed in cross-examination that Craig may have gone to McDonald's on other occasions with his friends and without her. Ms Cole was asked in cross-examination to explain why the back appeared to have been peeled off the Fenchurch Street Station and re-affixed, but was unable to explain. She seems to have thought that the red backing, without any stamp, had previously been affixed to the disputed Coventry Street stamp. She agreed that no stamp other than the disputed Trafalgar Square stamp showed Coca-Cola stains. She said that she may have discarded some stamps in the course of the competition.
624 There are numerous unsatisfactory aspects to Ms Cole's evidence. The most obvious one is her use of different names and addresses for the two entries. Her explanation that she was trying to avoid publicity in order to conceal her new identity from her husband is hardly persuasive. There is a curious inconsistency in her affidavit between par 6, in which she clearly says that she had been to McDonald's only twice in the course of the year and par 55, where she says that she had been to various restaurants on numerous occasions. The real curiosity lies in the fact that the inconsistency was not identified by her solicitors prior to the swearing of the affidavit. I do not mean that in any critical sense because the volume of work involved in preparing the material for this case was obviously great. However the fact that the two paragraphs appear in the same affidavit suggests strongly that she gave conflicting instructions on the point. If so, then it would be reasonable to infer that she was not being truthful.
625 There is also the staining on the Trafalgar Square stamp. One readily accepts the possibility that children spill food and drink, but it is curious that none of the other stamps bears evidence of such staining. It is also strange that none of the other persons present at the restaurant on 6 June has been called to give evidence. Ms Bowling may not have been able to assist. She may not have noticed what was happening at the next table where the children were. It may be that some of the children were too young or immature to assist, but one would have thought that some of them could have assisted in establishing that all of the stamps given by Craig to Ms Cole came from McDonald's products purchased on those two occasions on 6 June. In the absence of such evidence there is an available inference that one or other of the children had other stamps in his or her possession prior to going to the restaurant on 6 June, the provenance of which is unknown.
626 The restaurant evidence strongly suggests that no 1998 stock remained after the 1998 competition, save for one carton which was gone by March 1999. The roll of spare labels for 1998 also seems to have disappeared after the 1998 promotion. Three employees who worked on 6 June said that they saw only 1999 packaging, excluding the possibility that a misplaced carton of 1998 stock entered the system on that day. That Craig may have received both a double and a single stamp on that day makes the matter even more difficult to resolve. If this happened, then either two different products were supplied with 1998 stamps, or one was so supplied and another was accompanied by a label from a previously misplaced 1998 roll.
627 In the end, Ms Cole's case, at its highest, is that she believes that all of the stamps given to her by her son came from products purchased by the children on one or other of the visits to the restaurant on 6 June. That is nothing more than an opinion based upon limited opportunity for observation. Both claims must fail.
Other Witnesses for Claimant: Nil
Restaurant: The Gap
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 18 June 1999
628 Jennifer Anne Cox said that she obtained a tray mat from The Gap restaurant just after the competition commenced. On 18 June, at about 6.00 pm, she patronized the drive-through facility, ordering two Happy Meals, large fries, a cherry pie, two chocolate sundaes and a caramel sundae. She recalled receiving four game stamps. These would presumably have come from the large fries and the cherry pie. She said that one of the game stamps had yellow backing and was for Park Lane. This is the disputed stamp. It enabled her to complete the Mayfair/Park Lane set. The packaging was purple save for the pie box which was similar to the relevant box included in exhibit 10. On 22 June she presented her tray mat to the restaurant manager and obtained a redemption envelope. She submitted her claim which was declined. Ms Cox did not play the Monopoly game in 1998. She lives with her husband, a son and daughter. Her son is autistic and not allowed out of her sight. She therefore believes that he could not have provided her with 1998 stamps. Her daughter is aged four.
629 Exhibit 35 contains the disputed stamp. Exhibit 36 is a tray mat bearing a number of other stamps, including a 1998 Liverpool Street Station stamp. Exhibit 37 contains a number of food stamps, including one with red backing and therefore from the 1998 competition. Ms Cox said that the stamps in exhibits 35 and 36 were all obtained from The Gap, but the food stamp in exhibit 37 may not have been acquired there. She said that her son had collected the food stamps and some may have been from other restaurants. She was unable to say where the red food stamp came from. She found it in her son's bedroom. She thought that her son may have received it in the course of this year's competition.
630 At some stage Ms Cox told a representative of the respondent that she had received the Park Lane stamp between 15 and 22 June, rather than on 18 June as alleged in her affidavit. She said that she did not have a calendar at the time of the conversation. She had affixed the Mayfair stamp to the mat at an early stage and affixed the Park Lane stamp on 22 June. When she received the stamp now identified as Park Lane, her son, Benjamin had peeled it off the label and refused to tell her what it was. She told him to put it in the console of the car. Some days later she "grabbed things out of the console" and put them on the kitchen bench. It was at this point that she noticed the Park Lane stamp. She said that when she first saw the stamp it appeared to have been torn. Exhibit 35 is in that condition.
631 Notwithstanding Ms Cox's assertion that the Park Lane stamp had yellow backing, its red backing is still in place. Given the assertion that the stamps obtained on 18 June had yellow backing, it would seem that the disputed stamp cannot have been one of them. She also identified the exhibit 10 packaging as being similar to that which she had received. Any doubts about the pie box are irrelevant as pies were not promotional items in 1998. It is also relevant that her son has another red stamp, the provenance of which is unknown. Despite the wording of par 7 of her affidavit, Ms Cox did not see the disputed stamp at the time of purchase. She has assumed that stamps removed from the console of her car days after 18 June were stamps acquired on that day at The Gap. To the extent that there is any basis for this assumption, it is her belief that her son could not have obtained stamps without her knowledge. Notwithstanding this, she was uncertain as to the source of the food stamps in exhibit 37 and in particular as to that of the 1998 stamp. The disputed stamp is the "right" stamp from a double label. The food stamp is a "left" stamp from a double label, as is the 1998 stamp on the tray mat (exhibit 36). She seems to have thought that the latter stamp also came from The Gap. There must have been one other "right" stamp at some stage. Ms Cox says that she did not discard any stamps. This does not exclude the possibility that her son did so. Understandably perhaps, he has not given evidence; nor has Ms Cox's husband. This was one of the fifteen restaurants named by Mr Leishman, but that fact offers little support to Ms Cox's claim.
632 Evidence from restaurant employees suggested that all 1998 packaging was exhausted immediately after the competition and that none was seen during the 1999 competition. Ms Cox claims to have received yellow stamps on 1999 packaging. This is consistent with the employees' evidence. It is unlikely that there was a 1998 stamp on 1999 packaging. Again, Ms Cox does not suggest that there was. All of this is inconsistent with her evidence as to her acquisition of the disputed stamp. I reject her evidence in this respect. I am not satisfied that the stamp was obtained during the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Oxley
Disputed Game Stamp: Double (The Angel Islington)
Alleged Date of Acquisition: 6 July 1999
633 Ms Crosse obtained a tray mat at Oxley in the early part of the competition and on 6 July patronized a restaurant which she is "pretty sure" was Oxley. She ordered two Happy Meals, two chocolate shakes and a Big Mac Meal. The Big Mac Meal contained large fries and a large Coke. She received six game stamps, two on each of the large fries and the large Cokes and one on each of the shakes. One of the stamps was light blue on its "back" with the words "The Angel Islington" on it. Light blue was the distinctive colour of this property set. This enabled her to complete the light blue set comprising The Angel Islington, Euston Road and Pentonville Road. On 7 July she went to the Oxley restaurant and asked for a redemption envelope. Her claim was unsuccessful.
634 The witness arrived in Australia on 30 April 1998 and lived at Coffs Harbour until August 1998 when she moved to Brisbane. She did not patronize McDonald's at Coffs Harbour and only occasionally patronized McDonald's restaurants after moving to Brisbane. The reason for this was that she had insufficient money. Her money was tied up in England and did not become available until May 1999. She was certain that the stamps which she had submitted were obtained during the 1999 competition.
635 In the course of cross-examination it emerged that Ms Crosse had access to substantial funds in England before she came to Australia. She had something like fifty thousand dollars ($50,000) available from the sale of her deceased mother's home. She said that she had used this money to reduce the mortgage on another property which she owned in England and to pay for fares and associated expenses. In the course of cross-examination she said that they (her family) had eaten at McDonald's only rarely during their first months in Australia in 1998. She tended to frequent Hungry Jack's rather than McDonald's because it was more convenient when they were in Coffs Harbour. Thus the assertion in her affidavit that she did not eat at McDonald's for financial reasons may be a little misleading. If she did not use McDonald's, it was because she preferred Hungry Jack's. Subsequently, she suggested that they would only have been in the vicinity of the McDonald's restaurant when they were shopping and would then have had no money to spend there. Hungry Jack's, on the other hand, was situated away from the shops and so when they were in the vicinity, they would not have exhausted their funds whilst shopping. This is at best a contrived and unconvincing explanation. The witness's attempts to exclude any possibility that she patronized McDonald's in 1998 are generally unconvincing. If she genuinely did not do so, she would be able to say why or that there was no particular reason. At best, she has tried to bolster her evidence with ex post facto rationalizations. Her evidence must be viewed with some care. She also said that she was unaware of the controversy concerning the 1999 competition when she obtained The Angel Islington stamp. As I have demonstrated, media coverage was wide-spread by 6 July.
636 Ms Crosse is very hostile towards the respondent. In exhibit 34, a letter which she wrote to it, she said that McDonald's could rest assured that she would do everything in her power to harm its reputation. This may have been the product of righteous indignation at the rejection of what she believed to be a valid claim or an attempt at commercial blackmail. It is curious to note, in view of her other evidence concerning her patronage of McDonald's during 1998 and early 1999, that she claims in the letter to have been a loyal supporter.
637 She did not accept that the packaging in exhibit 10 was the same as that which she had received on 6 July, but she could not describe that packaging. The packaging in exhibit 10 looked familiar. She did not agree that the disputed game stamp had been obtained on packaging which was the same colour as other packaging received during the competition. She said, however, that all game stamps, including the disputed stamp, had yellow backing.
638 The restaurant evidence was to the effect that there was no 1998 packaging in the restaurant in 1999. There is evidence from numerous employees on duty on 6 July that they saw only 1999 packaging. Ms Crosse's evidence does not suggest the contrary despite her unwillingness to identify exhibit 10. She said that the backing of the disputed stamp was yellow. This could not have been so. In light of the other comments concerning her evidence, I am not satisfied that she obtained the disputed stamp during the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Springwood
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 10 or 11 June 1999
(2) 10 or 11 June 1999
639 Mr Denniss is employed as a car care adviser at Underwood. He obtained "a few McMatch & Win game mats" from the Springwood and Sunnybank restaurants and would regularly go to McDonald's with his mates or by himself. The Springwood restaurant is near to his place of work where he kept his tray mats. When he obtained stamps he would take them back to work and affix them to the tray mats. According to his affidavit, on 12 June 1999, while at work, he affixed a pile of game stamps, some of which he had obtained that morning and some, on the preceding day. In his cross-examination it appeared that he had affixed the stamps on Friday, 11 June rather than 12 June. He usually ordered some type of burger with large chips and a large drink in order to obtain double stamps. He received the Mayfair stamp prior to 11 June. On that day he affixed the Park Lane stamp to the mat, completing the set. At the same time, he also found that he had a complete set comprising The Strand, Fleet Street and Trafalgar Square. He subsequently presented the tray mat to the manager at Springwood and obtained a redemption envelope which he forwarded in accordance with the rules of the competition. His claim was unsuccessful. He says that he definitely obtained the stamps during the 1999 competition and that he did not participate in the 1998 competition. He was then at school and working at another "fast food" outlet.
640 Exhibit 99 contains two tray mats, from one of which has been cut the two "winning" coupons which Mr Denniss submitted. He has also cut out a third coupon, Pall Mall, Whitehall and Northumberland Avenue. He said that he completed this set at a later stage. By that time, he knew that as one stamp did not have a golden "M", his claim would not be accepted. He threw it away. Exhibit 100 is a collection of spare stamps. He said that at one stage he also had "a whole stack of" tray mats, but he threw them away. Those which he now has (exhibit 99) he discovered when his "boss has cleared out the office". He may have had four or five at one stage and close to 100 stamps, most of which were discarded after the competition. When asked to explain why some mats and stamps had been discarded and some not, he said that "they were scattered all over the office really. They had been put here and there so - I thought I'd chucked all of them away but I hadn't". He then said that those remaining had been found in a file by his boss who had put them away somewhere. The witness had previously kept them on his desk. He created the impression of a desk covered with heaps of paper underneath which the stamps had been concealed. He subsequently said that he did not really have a desk of his own. Most of his work was done outside. Nobody else in the office had collected game stamps. He and his boss were the only people working there. His boss did not go to McDonald's. The stamps which he had used to claim prizes had been in his wallet until he put them on the tray mat. They would have been in his wallet for a day at most.
641 It was suggested to him in cross-examination that the Trafalgar Square stamp was in a quite different condition from the other stamps in that set, a reference to a slightly dirty appearance. Minds might well differ as to whether or not the condition of the Trafalgar Square stamp is substantially different from the other two. However the Park Lane stamp is obviously in a much worse condition than the Mayfair stamp. Mr Denniss said that this was because it had been in his wallet whilst he was at work where he gets wet and dirty. It was pointed out to him that a 1998 Trafalgar Square stamp on one of the mats in exhibit 99 also looked rather the worse for wear. He said that the stamps became dirty at work. His attention was directed to a Pentonville Road stamp, also from 1998. He said that this was also as a result of its being spoiled at work. He pointed out that some of the stamps with golden "Ms" also appeared to be in poor condition. The Whitehall stamp is a reasonable example of this. He also drew attention to the Vine Street stamp on the other tray mat in exhibit 99. It appears to have been damaged in the course of its being detached from its mate. Many of the stamps in exhibit 100 are very dirty and marked.
642 He thought that all of the stamps which he had collected in 1999 had yellow backs (TS 987 ll 23-24) and agreed that the drink cups and fry boxes in exhibit 10 were the same as those which he had obtained during the competition. The hash brown bag was also the same as those used in the competition. He said that he would have purchased hash browns and orange juice in the mornings for breakfast. He may have received single stamps with such purchases. He had not referred to this possibility in his affidavit.
643 A number of questions arise concerning this witness's evidence. In par 4 of his affidavit he asserts that both disputed stamps were obtained from Springwood on either 11 or 12 June 1999. From his oral evidence, it appears more likely that it was 10 or 11 June. Paragraph 5 of his affidavit suggests that he should have received only double stamps as large fries and large drinks bear double stamps. In oral evidence, he suggested that he had also purchased orange juice and hash browns. Paragraph 10 leaves open the possibility that he acquired his stamps from restaurants other than Springwood, without indicating which restaurants might have been involved. There is a reference in par 3 to Sunnybank as a source of his tray mats, but he did not say that he had obtained any game stamps there. The fact that it was near his place of work suggests that he may have done so. Paragraph 10 is not entirely consistent with the assertion in par 4 that the stamps which he affixed on 12 (or 11) June had been received either on that morning or on the preceding day. In his oral evidence he corrected par 11 of the affidavit. He said that the second sentence should read, "I can distinctly recall taking off the stamps from each and every purchase that I made this year while collecting the stamps". He added, "I did collect others from when I went out with mates as well. I purchased lunch for them and got their stamps as well". I do not fully understand the significance of this change, but it seems to suggest that he had examined each stamp at the point of purchase. Notwithstanding these inconsistencies, the applicant's submissions concerning this claim proceed upon the basis outlined in par 4 of the affidavit.
644 One of Mr Denniss's claims depends upon a single stamp and the other, a double. Whilst the single stamp may have come either from a product bearing such a stamp or from a roll of spare labels, the double stamp must have come from a product bearing a double stamp. It seems from his evidence that he obtained both stamps on either the day on which he affixed them to the mat, or the day before. His evidence also suggests that he received the double stamp with an order involving large fries or a large cup and the single stamp, with an order containing a hash brown and/or orange juice. The single stamp may have been received with large fries or a large drink if it came from the roll of spare labels. This would mean that there were two sources of 1998 stamps in the restaurant on 10 or 11 June 1999. As is demonstrated by the respondent in its submissions concerning this claim, it follows from Mr Denniss's evidence that he had at least three other 1998 stamps obtained during 1999, including at least one further double and one further single.
645 The evidence from restaurant personnel at Springwood effectively excludes there having been 1998 packaging or 1998 spare stamps at Springwood in the course of the 1999 competition. Perhaps fortuitously, the owner of that restaurant also owns the Sunnybank restaurant to which Mr Denniss referred in his evidence. There was also some suggestion of a transfer from Sunnybank to Springwood. The evidence seems to exclude there having been 1998 packaging at Sunnybank during the 1999 competition. Springwood has also been treated as a possible source of the disputed stamp for the Taylor claim. However, as I will demonstrate in my summary of that claimant's evidence and that of his supporting witness, the claim depends upon little more than a reconstruction of events and offers little support for Mr Denniss's claim.
646 As I have observed, Mr Denniss said that all of the game stamps which he received had yellow backing, although counsel for the applicant suggested that he was equivocal about the matter. In my view it is most unlikely that 1998 stamps were supplied with yellow backing. The witness is either mistaken or he did not obtain the 1998 stamps as he said he did. It is difficult to reconcile the discrepancy between pars 4 and 10 of his affidavit. The positive allegations as to time and place of acquisition in par 4 do not sit well with the much more general assertions in par 10. A third aspect of the evidence which is of some concern is that dealing with conditions in the claimant's place of employment. The picture which he painted of tray mats and stamps lying on a desk or in a filing basket suggests a real possibility that stamps may have been present, of which the claimant knew nothing. Even if one accepts that nobody else in the office patronized McDonald's in 1999, the claimant knows nothing of 1998.
647 A further matter for comment is the fact that in his affidavit, he deposed to having purchased large fries and large drinks with the aim of acquiring double game stamps. (See par 5.) However in cross-examination he said that he also bought hash browns and orange juice bearing single stamps. That he did not volunteer the latter evidence at the time at which his affidavit was prepared may suggest that he was not then aware of the easily recognizable distinction between single and double stamps. This might suggest that his claim to have purchased hash browns and orange juice was a last-minute attempt to bolster his case. To be fair to him, however, it seems more likely that the evidence was prompted by the line of questioning followed by counsel for the respondent. I am not inclined to attach any significance to this aspect. In any event, I am not willing to act upon Mr Denniss's evidence. I am not satisfied on the balance of probabilities that Mr Denniss's disputed stamps were obtained in the course of the 1999 competition.
BRONWYN DOONG
Other Witnesses for Claimant: Nil
Restaurant: Marsden
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 14 June 1999
648 Curiously, both sides assumed that this was a double stamp. It is clearly a single. The parties have made further submissions on that basis.
649 Ms Doong is a single parent with two sons aged thirteen and eleven. With her children, she regularly attends the restaurant at Marsden and occasionally, that at Loganlea. She attends one or other of these restaurants on a weekly basis, generally on the way home from her sons' rugby league training. Her children have only ever gone to McDonald's with her. She said that she was aware of the 1998 competition but "only used instant prizes". She did not collect any game stamps. She became aware of the 1999 competition when she used the drive-through facility at the Loganlea restaurant to purchase a bacon and egg McMuffin, a hash brown and an orange juice. She was given a tray mat. There were game stamps on the hash brown bag and on the orange juice cup. Thereafter, when she went to McDonald's, she obtained game stamps and would affix them to the tray mat. On 14 June 1999 she purchased two Quarter Pounder Meals from the drive-through facility at the Marsden restaurant and from these meals, derived a Park Lane stamp. On 16 June 1999 she purchased two large Cokes from which she received four game stamps, one of which was Mayfair. She submitted a claim which was unsuccessful.
650 In cross-examination she said that she went to McDonald's about twice a week. Exhibit 46 is a statement made by her to the Australian Competition and Consumer Commission in which she said that she did not go to McDonald's very often because she could not afford it. She saw no inconsistency in her evidence in this regard. She said that she had thrown away all stamps from the 1998 competition as she had not been collecting them. She had, however, used the stamps for free meals. During 1998 she went to McDonald's regularly. She asserted with some force that she had peeled the stamps off the purchases with which she received the Mayfair stamp on 16 June. However, in the statement given to ACCC, she said that her sons had done this. When confronted with this inconsistency, she said that she could not honestly say who had peeled off the stamps. In particular, she could not recall who had peeled off the Park Lane stamp. In the course of this aspect of her evidence, she also said that the boys were not interested in the game. In her statement to ACCC, she had said that she played the game in 1999 because the boys wanted to do so, and that they or one of them had played an active roll in peeling off the stamps. She also said in the ACCC statement that "I do remember hearing about (the 1998 competition) before." She said in evidence that she had played the 1998 competition to the extent of claiming instant prizes, but not collecting stamps. This suggests a desire to present a different image to the ACCC from that which was actually the case. There is a difference between having heard of the competition and having participated in it to a limited extent as she clearly had.
651 These inconsistencies may not, in themselves, appear substantial, but they suggest a witness who has tried to present different impressions at different times. The ACCC statement creates the impression of a financially disadvantaged, single mother indulging the wishes of her children to participate in a competition. In these proceedings she appears to have tried to create the impression that she was a regular customer at McDonald's, and that the children were not interested in the competition. Her tray mat (exhibit 45) demonstrates that she had collected a number of stamps, and thus the "occasional customer" image would not have been appropriate. One might suspect that she hoped, by excluding her sons from participation in the competition, to avoid their being called as witnesses. These are, of course, matters of speculation, but witnesses who present different images at different times must be treated with caution.
652 A further problem arose for Ms Doong as a result of the discovery that her stamp was a single and not a double. She told the ACCC that she had received a total of eight stamps with her purchases on 14 June, two stamps with each of two boxes of large fries and two stamps with each of two large cups of Coca Cola. These products bear double stamps, and so this assertion may well have been correct. However, as has been pointed out, the Park Lane stamp is a single. The applicant submits that Ms Doong may have been mistaken in what she said to the ACCC or alternatively, a single stamp from a roll of spare labels may have been attached to the relevant product. Although a number of arguments are advanced by the respondent based upon the stamps affixed to the tray mat (exhibit 45), I observe only that if the applicant received two single stamps from a roll, then presumably they would both have been 1998 stamps. In that case, one would have expected her to have two such stamps. As far as can be seen, she has only one - the disputed stamp. The applicant suggests that the other may have been redeemed as an Instant Win stamp or perhaps discarded because the property in question was already held. These are possible explanations, but Ms Doong did not offer either of them. She seems to have suggested at TS 490 that all stamps obtained on 14 June were affixed to the tray mat.
653 As was pointed out by the respondent in submissions, it is also curious that she was able to remember that the disputed Park Lane stamp was one of those obtained on 14 June but was unable to recall any of the others acquired at that time. Her explanation, that it was one of her favourite properties, was less than convincing. A further inconsistency in her evidence was that she told the ACCC that she had obtained her tray mat at the Marsden restaurant on 14 June. In the present proceedings she has said that she obtained the tray mat at Loganlea. These inconsistencies may be arguably peripheral when taken individually, but when taken together constitute conflicting versions strongly suggestive of fabrication.
654 Another claimant, Mr Harris claims to have received his disputed stamp at Marsden on 11 June 1999. The evidence supporting his claim was also somewhat unsatisfactory as I shall demonstrate at a later stage. Nonetheless in assessing Ms Doong's evidence, I keep Mr Harris's claim in mind.
655 Of the witnesses from the Marsden restaurant, Ms Seipel's evidence excludes the possibility of any 1998 stock remaining at the restaurant after the end of that competition, or at least a short time thereafter. The other evidence suggests that no such stock was in the restaurant during the 1999 competition. Ms Seipel does not recall what happened to the roll of spare labels but said that she did not see it after the end of the 1998 promotion, although she continued to have access to the safe where it had been stored. Ms Seipel was the restaurant manager from November 1995 until November 1999. It is difficult to imagine anybody else secreting the roll between September 1998 and May 1999 and then reintroducing it into the system. The more likely inference is that it was disposed of and forgotten. Given the unsatisfactory nature of Ms Doong's evidence, I see no basis for inferring that it resurfaced in 1999. I am not satisfied on the balance of probabilities that Ms Doong received the disputed stamp in the course of the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Glen Waverley, St Kilda, Prahran or Doveton
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: Between 4 June and 12 July 1999
656 Ms Dowling said that after 4 June but before 12 July, she attended McDonald's restaurants at Glen Waverley, St Kilda, Prahran and Doveton and on each occasion, ordered either a large drink or shake, a large box of fries, or both. It seems that she patronized each restaurant on a number of occasions during the competition. She received two game stamps with each product. On one occasion, she received a stamp with a red back, being Trafalgar Square. This enabled her to complete the set: The Strand, Fleet Street and Trafalgar Square. On or about 13 July she attended at the St Kilda restaurant to obtain a redemption envelope. She submitted her claim, but it was refused. She may have received the disputed stamp about two weeks before 13 July. All of the stamps which she obtained during the 1999 competition had yellow backs, save for the Trafalgar Square stamp. It is a double stamp. She was asked whether she could identify its mate from exhibit 102 (her tray mat) or exhibit 103 (a collection of loose stamps which she had retained). She was unable to do so. With respect to exhibit 103, she said that until she collected the Trafalgar Square stamp, she had discarded stamps which were duplicates of those already held. Thereafter, she kept all stamps. This seems to imply that exhibit 103 contains only stamps received since she collected the Trafalgar Square stamp. Presumably, all un-duplicated stamps collected before that date were affixed to the tray mat.
657 She said in cross-examination that she would have obtained the disputed stamp at one of the nominated restaurants at lunch time, between midday and 1.00 pm, or between 5 and 7.00 pm at night. She did not remember the day on which she received it. In her affidavit, she said that when she received the stamp she was in company with Brendan McKinnon. This is curious in view of the implication from the rest of her evidence that she was not aware of acquiring it until a later stage, thus explaining her inability to say where or when she received it. In oral evidence, she repeated the assertion that McKinnon was with her, but then said that this was incorrect. She meant that he was with her when she affixed the stamp to the tray mat. They had been collecting stamps when they were together at McDonald's and also when they went separately. Their tray mat was kept at his home. She would affix her stamps to the tray mat when she visited. She was asked if the packaging which she had received was similar to that in exhibit 10. She said that she had not taken much notice of the packaging, "but I'd say yes".
658 The change in her evidence concerning the presence of Mr McKinnon is of some importance, particularly in view of her uncertainty as to the date of acquisition of the stamp or the restaurant at which it was obtained. Her affidavit would suggest that Mr McKinnon ought to have been able to support her claim. It is difficult to understand how such an error could have occurred. It is also a little difficult to accept that the assertions in par 6 of the affidavit reflect her perceptions at the time of receipt of the stamp. In oral evidence she said that she did not realize that she had won a prize until she affixed the stamps to the mat at a later stage. She would have had little reason to recall the circumstances set out in par 6 unless she did so because the stamp was red. She did not say that. In any event, one would have expected that if she could remember the details set out in par 6, she would also have remembered where she obtained the stamp. I suspect that par 6 merely sets out her perception of the stamp, formed at a later stage, although it is drawn in a way which suggests that the deponent noticed these characteristics at the time of acquisition. She did not submit her claim until 13 July, after the publicity had started and two weeks after acquiring the final stamp in the set. All of these matters lead me to doubt her reliability.
659 I turn to the restaurant evidence. I should start by again pointing out that the stamp is a double and therefore must have been affixed to either 1998 or 1999 packaging. It did not come from a roll of spare labels. The claimant did not take much notice of the packaging which she received, but thought that it may have been the purple 1999 packaging. I have already explained why I consider it unlikely that a 1998 stamp could have been attached to 1999 packaging or that 1998 packaging could have been supplied to restaurants by Walkers in 1999. The only likely explanation for Ms Dowling receiving a red stamp would be that one of the restaurants had retained 1998 packaging. That would almost certainly involve distribution of a carton of 1998 packaging in 1999. In other words, light blue packaging would have been supplied in the restaurant for at least a day and perhaps more, a phenomenon which could not have escaped observation by the staff. The evidence from those Glen Waverley employees who were called indicates that no 1998 stock remained after the 1999 competition and that they saw none during the 1999 competition. Similar comments apply to the evidence from St Kilda, Doveton and Prahran. In those circumstances I am not willing to accept Ms Dowling's evidence that she received the disputed stamp in the course of the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Aspley
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 5 July 1999
660 Mr Faulks obtained a tray mat at the Kallangur restaurant and on 5 July 1999, at about 1.00 pm attended the Aspley restaurant. He ordered two Big McValue Meals, two cherry ripe sundaes, one Happy Meal and an extra Big Mac. He received ten game stamps with his purchases. Of these, one stamp had yellow backing and was a Park Lane stamp. This enabled him to complete the Mayfair/Park Lane set. He had purchased large Big McValue Meals which included two large Cokes and two large boxes of fries. He said that he also received stamps with the "cherry ripes". It was pointed out to him that he had ordered cherry ripe sundaes and that they did not bear game stamps. He said that he had purchased a cherry pie which bore two game stamps. On 8 July he obtained a redemption envelope and submitted his claim. It was rejected. He did not compete in the 1998 competition. During the 1999 competition he kept his stamps in his wallet.
661 In the course of cross-examination he said that he went to McDonald's about five or six times during the competition. He first became aware of the dispute concerning the competition shortly after 5 July, probably 7 July. Between late May and 5 July he had been on leave. His visit to Aspley was probably on the day before he returned to work. Between early June and 5 July he went to McDonald's on numerous occasions and collected stamps, ordering similar products to those ordered on 5 July. He went back to work on 6 July. He collected about fifty game stamps but has thrown them out, save for those produced in exhibits 19, 20 and 21. After hearing of the dispute he retained those stamps which were still in his possession.
662 He cannot recall when he received the Mayfair stamp, although it was probably during June. The Park Lane stamp had a yellow back. He obtained it from a cup, fry box or cherry pie box. He identified the 1999 packaging as being the same as that with which he received the stamps. He agreed that all of the stamps which he received on 5 July were double stamps. The disputed stamp is a single. He offered the possible explanation that he had purchased two regular meals rather than two large meals. He said that as his son was with him, it was possible that he had done so. He agreed that the Park Lane stamp was quite discoloured but could offer no explanation for that. He could not say whether he ate at McDonald's during the 1998 competition, but said that he did not play the game "as in retaining a tray mat or anything like that". He played this year because his wife was overseas and he was looking after the children.
663 This claimant is an experienced police officer who might reasonably be expected to understand the importance of attention to detail in giving evidence. Two aspects of his evidence cause concern. Firstly, his certainty that he obtained only double stamps on the day in question is quite inconsistent with his having received a single stamp. His suggestion that he may have purchased a different product is, at most, reconstruction and probably wishful thinking. Secondly, he was quite sure that he had obtained stamps with yellow backing. My previous observations concerning the printing and distribution evidence demonstrate that it is very unlikely that a 1998 stamp could have had yellow backing.
664 In both the Hayward and Leishman claims, this restaurant is suggested as a possible source of disputed stamps. However the Hayward stamp is more likely to have come from Virginia, and Mr Leishman named fifteen possible restaurants. Nonetheless, I keep these claims in mind in assessing Mr Faulks' evidence.
665 The evidence from restaurant staff indicates that the 1998 stock was used up shortly after the competition, although some stock was discovered on 4 October 1998 and subsequently used. The evidence of Ms Lynch demonstrates that there was at least one roll of game stamps in the restaurant during the 1998 competition. It was kept in the safe. She did not see it again after the end of that competition. As I have previously observed in the context of other restaurants, it is difficult to accept that the roll was concealed somewhere and re-emerged in the course of the 1999 competition. It seems much more likely that it was disposed of by one or other of the senior staff members, whether or not he or she now recalls having done so. In any event, Mr Faulks does not suggest that he received two single stamps with any of his purchases. He understood that he had received double stamps. In those circumstances it is difficult to see how his receipt of a single stamp can be attributed to use of a 1998 roll. I am not satisfied that he received the disputed stamp in the course of the 1999 competition.
PETER JAMES FUSINATO
Other witness for Claimant: Alan Sedgewick
Restaurant: Warragul
Disputed Game Stamp: Double (Trafalgar Square)
Alleged Date of Acquisition: 13 June 1999
666 Mr Fusinato said that on 13 June 1999 he obtained a tray mat at the Warragul restaurant and at the same time ordered "about six hash browns, some servings of hot cakes, egg and bacon McMuffins and four medium drinks". It is not entirely clear, but his family seems to have been with him. He received ten single stamps, one of which was the disputed Trafalgar Square stamp. On 28 June he and his family went to Warragul again. His children ordered Happy Meals with medium drinks and large fries. The only relevant stamp from this was Fleet Street which enabled Mr Fusinato to complete his set. Later that day he obtained a redemption envelope and submitted the claim. It was refused. He did not compete in the 1998 competition and did not collect any stamps from that competition. In the course of cross-examination, he said that the family had eaten at the restaurant during the 1998 competition and obtained stamps, but had thrown them away. He agreed that they may have peeled stamps off labels but said that they had not taken them home, nor had they tried to match them on tray mats.
667 He recognised the cups in exhibit 10 as similar to those which he received on the day he received the disputed stamp. He could not recall the colour of the game stamps. The cups were purple. He said that six hash browns and four medium drinks had yielded ten single stamps. His Trafalgar Square stamp is a double. He did not know whether it had come from a hash brown bag or a cup. His daughter had peeled the stamps, but he had noticed the Trafalgar Square stamp. He received one of the other properties in the same set on that date and the third property (Fleet Street) on 28 June. The Regent Street stamp on his tray mat (a 1998 stamp) was obtained between 13 and 28 June. The Whitechapel Road stamp (a 1998 stamp) was obtained on 29 June. In cross-examination he said that he had also obtained a King's Cross stamp without golden arches, presumably a 1998 stamp. He threw it away although he then had 1999 game stamps for the other three stations. He said that he knew it was not valid. He agreed that the Trafalgar Square stamp was of a different colour from the others in the set (referring to its discolouration) but had no idea how that had occurred.
668 Mr Alan Sedgewick is not a claimant. He patronized the Warragul restaurant during the 1999 competition. Around the middle of June he used the drive-through facility, purchasing a medium coke and possibly, small fries. He said that:
The medium drink cup I received looked the same as the cups distributed in last year's Monopoly promotion. It had printing material on it referring to the McMatch & Win competition and was light blue in colour. I remember seeing a game stamp attached to the cup. I recall that the stamp had a red back.
He said that he removed the game stamp but did not keep it or the packaging.
669 He visited the Warragul restaurant on two or three other occasions, ordering small fries and a medium coke or a medium Quarter Pounder Meal, which included a medium coke and medium fries. On these occasions he also received packaging material which was light blue in colour. He did not keep any of the game stamps. He also received one "Instant Win Cheeseburger" stamp which a friend redeemed on a later date. On another occasion at Warragul he ordered a medium coke and noticed that it looked "different". He said that the cup was purple in colour. He did not "actively participate" in the 1999 competition, but collected game stamps during the 1998 competition. He threw them away during, or at the end of the competition.
670 In the course of cross-examination he said that he did not know Mr Fusinato and that he had come forward to give evidence without knowing of his claim. When he first obtained the blue cup with the red stamp he said to himself:
Gee I thought they would have - you know, you'd think they'd make some sort of distinguishing this year's from last year's and I looked for a date or something on it and, you know, there wasn't, but I thought, well, there must be some way they can tell. I didn't particularly take too much notice of it.
671 He agreed that in an earlier draft of his affidavit there was no reference in par 3 to his recalling the colour of the stamp.
672 Obviously, Mr Fusinato's claim suffers from the fact that his stamp is a double stamp although his purchases should have borne single stamps. Double stamps could not have come from a roll of spare labels (which would contain singles). I have explained why it is unlikely that a 1998 stamp could have been attached to 1999 packaging and have pointed out the improbabilities of a carton of 1998 packaging being distributed in a restaurant during the 1999 competition without its coming to the notice of staff. Although Mr Sedgewick claims to have seen 1998 packaging, Mr Fusinato does not. He thought that the cups were purple. I have previously discussed the colour of the hash brown bags in 1998 and 1999.
673 I was not greatly impressed by the evidence of Mr Sedgwick. He claimed to have received 1998 packaging on three or four occasions from about the middle of June 1999. In an earlier draft of his affidavit, he made no reference to the colour of the game stamp on his blue cup. That may have been an oversight, but the point was important. One would have expected those taking his statement to have asked. The frequency with which he claims to have sighted 1998 packaging is quite inconsistent with the restaurant evidence. That evidence is fairly convincing. Although Mr Barnsley changed his evidence in some respects, he appeared to have a distinct recollection of the removal of stamps from 1998 packaging. That task was undertaken for the specific purpose of using it. The restaurant was also subject to a full field inspection. This indicates two thorough inspections of the restaurant with the expectation that the presence of superseded stock would lead to the incurrence of a penalty. The inspections were designed to discover such shortcomings. Taking this evidence with Mr Fusinato's evidence that he received his double stamp on a medium purple cup or a hash brown bag, I am unconvinced that he received it at Warragul in the course of the 1999 competition.
Other Witnesses for Claimant: Kenneth Harris, Kim Harris
Restaurant: Marsden
Disputed Game Stamp: Single (Marlborough Street)
Alleged Date of Acquisition: 11 June 1999
674 Mr Harris obtained a tray mat at the Marsden restaurant and on 11 June, at about 7.30 pm, attended the drive-through facility at that restaurant, ordering a medium Cheeseburger Meal which consisted of a cheeseburger, medium fries and a medium Coke, with which he should have received two single stamps. One of the stamps which he received had yellow backing and was Marlborough Street. This enabled him to complete the Bow Street, Marlborough Street and Vine Street set. On 12 June his parents, Mr Kenneth Harris and Ms Kim Harris obtained a redemption envelope for him. His claim was refused. He had not entered the 1998 competition and had not swapped game stamps with any other person. All of his stamps had been obtained during the 1999 competition. Mr Harris was almost eighteen years of age at the time of his cross-examination in October 1999. He was born on 27 November 1981.
675 Each of his mother, father and sister, Jodie have also claimed prizes in the course of the 1999 competition. His sister was aged fifteen at the time. All claims were made using coupons from the same tray mat. Mr Harris said that his parents had submitted his claim because he was not at home at the relevant time. He was out with his mates, it being a Saturday. He had received the disputed stamp on the previous Friday night. His friends were in the car at the time. He was driving. The products that he ordered were only part of a larger order which included food for his passengers. They drove to another location to eat the food. He then put his stamps into the centre console of his car. Some of his mates also put their stamps there. He did not look at them until he went home that night. Previously, there had been no stamps in the console. At TS 943 he agreed with the proposition that when he obtained the Marlborough Street stamp there were "some game stamps in your car". I am not quite sure what that meant in light of his earlier statement that there was none in the console. He also agreed that he had other stamps at home.
676 His parents had realised earlier on that Friday that they had won a prize or prizes, and Mr Scott Harris had gone to the restaurant with his mother to submit a claim. He said at one stage that his sister had completed her prize-wining set about a week before he had, but he also said that she had done so after he had won his prize. The family had not collected stamps in 1998 but had entered the competition in 1999. He could not identify the other stamps which he received on the night of 11 June. He agreed that the 1999 cup (exhibit 10) was similar to that which he had received on that night and on other occasions in the course of the 1999 competition.
677 Kenneth Edward Harris obtained a McMatch & Win tray mat at the Marsden restaurant just after the game commenced in 1999. On about Thursday, 10 June he and his wife attended the drive-through facility with their daughter. They ordered two medium Cokes, two apple pies and large fries. His wife took the relevant game stamps home in her purse. On the following Friday, 11 June she telephoned him at work to say that they had won a car. He told her to get a redemption envelope to claim the prize. On that day he worked a split shift, leaving work at 10.00 am to return at 2.00 pm. He and his wife went to lunch at McDonald's, and his wife again collected stamps. When they arrived home, she affixed them to the tray mat and told him that they had won a television set and DVD player. On Saturday, 12 June he and his wife went to the Marsden restaurant to get a redemption envelope for his son Scott. He understood that Scott had won a Sony Playstation. He said that he did not participate in the competition in 1998 and had not swapped his stamps with anybody. Mr Harris agreed that the packaging in exhibit 10 was similar to that which he had received during the 1999 competition. The stamps had yellow backing.
678 Kim Ann Harris gave evidence which was, in most respects, similar to that given by her husband. She said that on 16 June she went with her daughter Jodie to obtain a redemption envelope for the latter's prize win. She did not use 1998 stamps as she had not played the game in 1998, nor had she swapped stamps with anybody. In her supplementary affidavit she said that she recalled Scott giving her the Marlborough Street stamp. They already had Bow Street and Vine Street. Immediately after affixing the Marlborough Street stamp to the tray mat, she rang him on his mobile telephone to tell him. At TS 940 ll 2 and 3, Scott said that he had cut out "the set of properties" for the purpose of claiming the prize. Curiously, his mother said at par 5 of her further affidavit that she had done so. He said that on the night that he received the Marlborough Street stamp he discovered, when he arrived home, that he had completed the set (TS 943). However he also said that he had given the stamps to his mother and gone fishing without knowing that he had completed the set (TS 949). She had telephoned him to say that he had won, a version which is more consistent with that given by her. He also agreed at TS 950 that he really had no recollection of which stamps he had received on the night of 11 June. He obtained at least some of his stamps from other people in the car. There is a possibility that they had stamps from the 1998 competition with them, but that seems relatively unlikely.
679 Mr Ken Harris and Ms Harris also differ in their accounts of events surrounding their winning the Samsung television set and DVD player. Mr Harris said that on 10 June they received the stamps which founded their claim to the car and on Friday 11 June, they went to lunch at McDonald's. After they returned home, Ms Harris examined the stamps obtained on that second occasion and discovered that they had won the television set and DVD player. According to Ms Harris, she received all of the stamps required to win the car, the television set and DVD player at the restaurant on 10 June and knew that she had done so by about 6.00 am on 11 June.
680 Ms Doong also claimed to have received her disputed stamp at this restaurant. I keep in mind her claim in assessing the evidence concerning this claim.
681 I do not accept that the disputed stamp had a yellow back. It is also most unlikely that a 1998 stamp could have been affixed to 1999 packaging. Scott identified the 1999 cup as similar to that which he received, but he was not asked about the fry box. It is possible, but unlikely, that he received a 1999 cup and a 1998 fry box. The difference would have been very obvious. There is also the possibility that the stamp came from a roll of spare labels. The evidence from restaurant staff at Marsden appears to exclude the possibility of 1998 stock remaining in the restaurant after the competition or being there during the 1999 competition. (See under Doong, above.) Ms Seipel's evidence indicates that she did not see the roll of spare 1998 stamps after the end of that competition. There is no reason to believe that it could have re-emerged in the course of the 1999 competition.
682 The inconsistencies in the evidence of Mr Scott Harris and between his evidence and that given by his mother are troubling. There is also the curious inconsistency between the evidence of his mother and his father as to the other prizes. In the circumstances I am not willing to act on their evidence as being reliable. I am not satisfied that the disputed stamp was obtained in the course of the 1999 competition.
Other witness for Claimant: Peter James Hayward
Restaurants: Virginia, Kallangur, Aspley
Disputed Game Stamps:
(1) Double (Northumberland Avenue)
(2) Double (The Angel Islington)
Alleged Dates of Acquisition:
(1) 18-19 June 1999
(2) 21 June 1999
683 Ms Hayward is married to Peter James Hayward. She has five children aged eleven, nine, five, two and four months (as at the date of her affidavit, 21 August 1999). At relevant times, they regularly attended McDonald's restaurants, almost always the Virginia restaurant. Prior to the 1999 competition they attended once or twice a week. Thereafter they tended to go three or four times a week. They always purchased burgers, fries, drinks and apple pies. The children did not attend McDonald's other than with either Mr or Ms Hayward. She did not go to McDonald's in 1998 and did not participate in the competition. She was then living at Victoria Point which was about fifteen minutes from the nearest restaurant. At that stage she was living on her own with the children. For some reason, that prevented her from patronising McDonald's. She met her present husband during 1998, and they were then too busy to do so because they were planning their wedding. She was unaware of any of her children attending McDonald's during 1998.
684 When purchasing at McDonald's, they used either the dine-in or the drive-through service. She became aware of the 1999 competition through advertising on television and in the restaurants. Each member of the family had his or her own tray mat. After going to a restaurant they would sit down together to peel off the stamps and affix them to the tray mats. On 18 or 19 June her eldest son, Jessie had two pink stamps on his tray mat. Mr Hayward also obtained a pink stamp, which was Northumberland Avenue. Jessie told him that he had two matching stamps but would not give them up. He eventually did so. Thus they had a complete set: Pall Mall, Whitehall and Northumberland Avenue. They obtained a redemption envelope. This was on 21 June. At the same time, they ordered food which they took home to eat. Mr Hayward told Ms Hayward that they had won another prize. He had peeled off a blue, The Angel Islington stamp. They already had Euston Road and Pentonville Road. They obtained another redemption envelope and submitted both claims. They were rejected.
685 In her affidavit Ms Hayward said that she received photocopies of her claim forms from McDonald's after their rejection. She saw that both the Northumberland Avenue and The Angel Islington stamps were in poor condition. She suggested that they were not in this condition when she posted them. She denied knowledge of the 1998 competition and that she had collected any 1998 game stamps. The back of the Northumberland Avenue stamp was definitely yellow. Ms Hayward does not, in her affidavit, assert that she obtained either stamp on the date and place in question. Her husband had peeled both of them. In her evidence-in-chief she said that she had visited both the Virginia and Kallangur restaurants between 4 June and 1 August 1999. I am uncertain whether this means that Northumberland Avenue may have come from Kallangur. The Angel Islington must have come from Virginia according to Ms Hayward's evidence.
686 Although in par 4 of her affidavit the witness says that she had regularly attended McDonald's restaurants in the past, in par 8 she said that she did not do so in 1998. Her reasons for this, as set out in par 9 and elaborated upon in cross-examination, are not persuasive. To some extent she seemed to be a little evasive under cross-examination concerning this matter. She said that both disputed stamps had yellow backing.
687 Mr Hayward said in his affidavit that they had acquired food products from the Virginia, Kallangur and Aspley restaurants during the 1999 competition. He said that he was not aware of the 1998 competition and had not collected any game stamps. He was also not aware of his wife or children patronizing McDonald's whilst they were living at Victoria Point. Around mid-June 1999 Ms Hayward's eldest child, Jessie had two pink stamps on his tray mat. Mr Hayward recalled peeling off a pink stamp that matched these stamps. About two days later they went to the restaurant to obtain a redemption envelope. They purchased food before leaving the restaurant and filled out the relevant parts of the redemption envelope. They then went home. When they got home they peeled off the stamps and realised that they had won another prize. They went back to the Virginia restaurant and obtained another envelope. Both claims were subsequently submitted and rejected. Although it had been suggested that Mr Hayward kept the various tray mats and loose stamps in his possession, in cross-examination he said that Jessie had kept his in his room.
688 Mr Leishman nominated Aspley as a possible source of one or more of his disputed stamps. Mr Faulks nominated Aspley as the source of his disputed stamp. I keep these claims in mind in assessing the Hayward claim.
689 The respondent points out in submissions that Ms Hayward's evidence at TS 121 ll 19-23 suggests that both winning stamps had been obtained from Virginia, notwithstanding the assertion that they also patronized Kallangur on occasions and the suggestion in Mr Hayward's evidence that they had also patronized Aspley. Ms Hayward was positive that the packaging in exhibit 10 was that with which the stamps were received. It is, in my view impossible that the disputed stamps could have had yellow backing. It is also most unlikely that they came attached to 1999 packaging. They are both double stamps and so could not have come from a roll of spare labels. At TS 111 Ms Hayward agreed that all of the stamps other than those submitted to McDonald's were contained on the tray mats (exhibit 8) and in the envelope containing stamps (exhibit 9). There is no apparent mate for either The Angel Islington or Northumberland Avenue. Such a mate would, of course, have to be a 1998 stamp. There is a 1998 Regent Street stamp on one of the tray mats. It is in very poor condition. It is a single stamp.
690 Ms Hayward's assertion that her stamps had been tampered with after submission is somewhat difficult to accept as made in good faith. We know how the stamps were dealt with by Creata. There is no reason to believe that they were tampered with. Thus it seems likely that they were in much the same condition when submitted as they now are, and that Ms Hayward was aware of that. The other 1998 stamp to which I have referred also appears to be in poor condition. Her evidence that The Angel Islington stamp was obtained on 21 June may be doubted because other evidence indicates that the two claims were received by Creata on 21 June. That may be a matter of minor detail, save for the reasons advanced for being able to identify the date upon which it was obtained.
691 The restaurant evidence indicates that it is unlikely that any 1998 packaging remained in the restaurant after the 1998 competition. Similar observations apply to Kallangur and Aspley. The applicant does not claim to have received 1998 packaging, and so there is no reason to doubt the restaurant evidence in this regard. The roll of spare labels is irrelevant for the purposes of these claims. I do not accept that either disputed stamp was received with yellow backing or on 1999 packaging. In the circumstances, I am not satisfied that either was received in the course of the 1999 competition.
Other Witness for Claimant: Robyn Coombe
Restaurant: Loganlea
Disputed Game Stamp:
(1) Single (Park Lane)
(2) Double (Coventry Street)
Alleged Date of Acquisition:
(1) Late June or early July 1999
(2) One or two weeks after obtaining Park Lane stamp, and one or two days before 18 July 1999
692 Ms Hodges obtained a tray mat from the Loganlea restaurant early in the 1999 competition. On an afternoon late in June or early in July, she attended the drive-through facility at that restaurant. She ordered a Big Mac Meal Deal which consisted of a Big Mac, large fries and large Diet Coke, a large Quarter Pounder Meal which consisted of a burger, large fries and large Coke, and a Happy Meal which consisted of a burger, small fries and small Coke. She received eight game stamps. There were two stamps on each of the large fries and two on each of the large drinks. These should all have been double stamps. The small fries and small Coke would not have carried stamps. One stamp was a single Park Lane. It was said that its back was blue, but I suspect that this was a reference to the colour of the property set. This stamp enabled Ms Hodges to complete the property set consisting of Park Lane and Mayfair. About a week or two later, she again attended the drive-through section of the restaurant and ordered a Big Mac Meal consisting of a Big Mac, large fries and large Diet Coke; a large Quarter Pounder Meal which consisted of a burger, large fries and large Coke; and a Happy Meal consisting of a burger, small fries and small Coke. Again she received eight game stamps, which should have been four doubles. One of the stamps was a double Coventry Street stamp, enabling her to complete the property set: Leicester Square, Coventry Street and Piccadilly. Both winning stamps had yellow backing (TS 270 ll 16-17). On Sunday, 18 July, at the Loganlea restaurant, Ms Hodges obtained a redemption envelope. Her claims were refused.
693 Ms Hodges said, in par 18 of her affidavit (wrongly identified as par 16 in the affidavit), that she had not used 1998 stamps:
... because on some occasions that I had attended McDonald's I was driving my car and I have only had this car for six months so it would be impossible for other tickets to be in there from the previous year. Also on receipt of the game stamps, I put all tickets obtained on the fridge at home. I have moved from the house where I was living during the last competition so all the tickets that I may have had from that competition have been thrown out upon moving.
694 In cross-examination she said that she had an independent recollection of disposing of stamps when she moved house in September 1998. She also said that in 1999, she had obtained stamps before obtaining her tray mat. She collected a large number of stamps. The backs of the stamps were yellow. She agreed that she had received 1999 purple packaging. She understood the difference between single and double stamps and was positive that she had received double stamps. She was unable to explain in those circumstances how the Park Lane stamp was single. She subsequently said that she did not know whether the Park Lane stamp was single or double. She said that it was "one of a set" or "one of a double ticket".
695 The Coventry Street property was acquired a day or two before the witness presented her claims on 18 July. As this was a week or two after she had received the Park Lane stamp, the latter must have been obtained in early July rather than late June. Ms Hodges was asked why she had waited two weeks before presenting the Park Lane/Mayfair set. Her explanation was rather curious. She said (TS 276 ll 508):
Because I had the Mayfair ticket sitting on the fridge. I stuck the Park Lane to the game mat and then realised that I had Mayfair when I actually started sticking the extra tickets on the mat.
696 She was then asked, "What do you precisely mean by that?" She replied (TS 276 ll 9-15):
Well, I had - when I first started collecting the tickets, I didn't have the game mat. I collected the game mat a week or two - a week after I started collecting the tickets which means that the tickets that I did collect in that time, were placed on the fridge, which could have been that they were beside the game mat when I placed the game mat on top of the fridge at the time, or under the game mat, and I realised that I had the Mayfair after I had obtained the Park Lane.
697 She was asked (TS 276 ll 16-17): "You realised you had Mayfair on the same day as you obtained the Park Lane; isn't that correct?" She replied:
I realised that I had both the sets on the day that I took it down to Loganlea McDonald's.
698 This version of events appears to be inconsistent with the version in her affidavit. Taken at face value the affidavit suggests that when she obtained the Park Lane stamp, she knew that she already had Mayfair. It may be that the affidavit is just a little sparse with respect to details. At TS276 lines 19-20, she again agreed that she had received Mayfair before she received Park Lane and that she knew she had Mayfair when she received Park Lane. She eventually agreed that she could not explain why she had taken two weeks to present her claim for the Park Lane/Mayfair set. In the course of re-examination she claimed to have also received a 1998 Vine Street stamp in the course of the 1999 competition. It is part of exhibit 24.
699 It is difficult to avoid the conclusion that the conflict in her evidence demonstrates a desire to create the impression that she had not identified the Park Lane stamp as completing a prize-winning set until some time after acquiring it. Her motive may have been to explain the delay between acquiring the Park Lane stamp and claiming the prize. If she genuinely believed that she had won a motor car by collecting the two stamps, she would almost certainly be able to recall when she became aware of this. Two mutually inconsistent recollections would be unlikely.
700 Robyn Judith Coombe said that on Thursday, 15 July 1999 she attended the Loganlea restaurant. She was running late for work and wished to obtain something for breakfast. She purchased a hash brown from the inside counter and received one stamp. It was Fenchurch Street Station. It had a red back and did not have a golden "M" on the front. She also received a food voucher with an apple pie on one side of it. She was aware of the dispute concerning the competition. She became annoyed at the fact that McDonald's was denying entrants their prizes. She rang McDonald's and complained. She was advised to keep the stamp and that somebody would telephone her. Nobody did so. On another occasion she purchased twenty ice cream cones. She does not claim to have won any prizes with those purchases. She denies knowledge of the 1998 competition.
701 She apparently received two stamps with the hash brown bag, one being Fenchurch Street Station and the other, a food stamp for an apple pie. These stamps are exhibit 113. They are certainly 1998 stamps. It is not clear how a double stamp could have been affixed to a hash brown bag. The witness appears to have agreed that she obtained one "patch" and tore it into two. In the course of cross-examination she was asked, "But at the time you got these red tickets you knew, did you not, that they were unusual... ?" This was a reference to the dispute of which the witness was aware. She replied:
I didn't realise. No I didn't. It was just that it was in my glove box because (it?) was a bit grotty and I hadn't put it in the garbage straight away. And that was the only reason they were still in the car.
702 This was the first indication that the stamps had been kept in the car for some time before the witness contacted McDonald's. She agreed that they had been in the car for "a couple of days". She said subsequently that she found them whilst cleaning out the car and realised that they were similar to the stamps which were the subject matter of the dispute. She then said that she had put them into the glove box when she received them. Apparently she ate the hash brown whilst she was driving. Subsequently, whilst she was cleaning out the car, she found the stamps. She had put the whole of the packaging into the glove box with the stamps attached. She discarded the packaging after finding it in the car. She had first heard about the competition after she had bought the hash brown but before she cleaned out the car. Her glove box was in a messy condition.
703 Ms Coombe's evidence is irrelevant for the purposes of Ms Hodges' claim. Ms Hodges said that her stamps had yellow backing, not red and were received attached to 1999 packaging. Further, there is no reasonably likely way in which a double stamp could have been attached to a hash brown bag as alleged by Ms Coombe. In both the 1998 and 1999 competitions, hash brown bags bore only single stamps. Although Ms Coombe's affidavit suggests that she identified the stamps immediately upon receiving them, it is clear from her cross-examination that this was not the case, and that she recovered the relevant wrapping from her glove box some days later. She was unable to describe the packaging and so I am unable to determine whether it was from the 1998 or 1999 promotion. There is also an obvious risk that, despite her own beliefs, anything in her glove box may have been derived from the 1998 competition. To the extent that Ms Coombe's evidence relates to any aspect of the case, I would allow it little weight. I think it unlikely that Ms Coombe obtained her stamps during the 1999 competition.
704 Ms Hodges claims to have received only double stamps on the occasion on which she obtained the Park Lane stamp, but it is clearly a single stamp. The possibility that she received the double Coventry stamp in 1999 is very much reduced by the considerations to which I have referred in the general part of my reasons. It is unlikely that 1999 packaging could have borne 1998 stamps. It is also unlikely that a substantial quantity of 1998 packaging could have been used at the restaurant without the event being observed by those working there. One would have expected those employees who gave evidence to have seen or heard of it. There was no suggestion that any of them had done so.
705 The restaurant evidence appears to exclude the possibility of 1998 stock at the restaurant following the 1998 competition and also excludes the possibility that any stamps from the roll of spare 1998 stamps could have entered the 1999 competition. The claimant's evidence is consistent with the restaurant evidence in that she does not claim to have seen or received any 1998 packaging or red stamps.
706 I am not satisfied that either stamp was obtained in the course of the 1999 competition.
Other witness for Claimant: Mark Robinson
Restaurant: Deception Bay
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 16 June 1999
707 Ms Hooper obtained a tray mat at the restaurant on the Warrego Highway near Gatton. On or about 16 June, at about 4.00 pm, she attended the drive-through facility at the Deception Bay restaurant, ordering a large McChicken Meal, a large Big Mac Meal, two Happy Meals and an apple pie. She received ten game stamps, one of which was a double Park Lane stamp which enabled her to complete the Mayfair/Park Lane set. At about 9.30 pm on 19 June her husband presented her tray mat at the Deception Bay restaurant. He obtained a redemption envelope. Their claim was unsuccessful. Ms Hooper did not participate in the 1998 competition and did not use 1998 stamps in her present claim. In cross-examination she said that she had obtained the Mayfair stamp at the Gatton restaurant, probably on 11 June. She may have purchased McDonald's products between 11 and 16 June. Although the witness received the Park Lane stamp on 16 June, she did not realize that she had a winning collection of stamps until 19 June, the day when her husband asked for a redemption envelope.
708 Ms Hooper was not aware of the characteristics of the stamp as set out in par 7 of her affidavit until 19 June. All of the stamps purchased on 16 June had yellow backings. As far as she knew all of the stamps which she obtained during the course of the 1999 competition had such backing. The witness recognised the 1999 packaging material (exhibit 10) as being similar to that purchased by her on 16 June. After obtaining the redemption envelope on 19 June, she noticed that there was no golden "M" on the Park Lane stamp and enquired at Deception Bay as to whether that had any significance. She was re-assured by what she was told, but nonetheless did not post the envelope until 1 July. They (she and her husband) delayed because they weren't really sure and "didn't want to get into trouble". They then became aware of the media publicity concerning the competition. This caused them to delay further. Ms Hooper agreed that the Park Lane stamp was in a significantly poorer condition than other stamps in exhibit 43 but could not explain this. She assumed that it was "because it had been on the bench". At the end of her cross-examination, Ms Hooper conceded that she was "not sure" that she had obtained the disputed stamp during 1999 (TS 453 ll 25-26).
709 Mark Robinson (who was called by the applicant) was the owner of the Deception Bay restaurant until he sold it to McDonald's towards the end of July 1999. He now operates an unrelated business. He obtained the franchise in December 1995. He said that storage space at the restaurant was limited and that the roof was regularly used. He would store excess stock or "left over" stock from promotions, in the roof. There was "no science to the storage of stock in the stock room". Similar items were stored together. He did not recall any representative of the respondent inspecting his roof space, save in the course of full field inspections and follow-up inspections. The "first in-first out" stock rotation system was, in practice, often applied only to food products.
710 He recalled the 1998 competition and that it was a huge success, particularly in the early stages. He recalled running out of fry boxes very early in the promotion. The restaurant was under great pressure to meet the expectations of customers. He used the spare roll of labels and also sought transfers from other restaurants. The 1999 game was also very successful in the early stages. Again there were supply problems with stock. He recalls seeing "large numbers of red-backed game stamps in the food redemption box which was used to house winning food claims". Other witnesses also saw red-backed stamps which had been presented to redeem food prizes. Mr Robinson swore a second affidavit dealing largely with stock records. It is not particularly relevant for present purposes.
711 In cross-examination he conceded that he was currently in dispute with McDonald's "over money". He was asked, "And have you made threats against McDonald's concerning the processing of your claims for this money from McDonald's?" He replied, "I've asked them to - to give me an answer, yes." He had also said that if they failed to answer him within a prescribed time, he would "make it aware to the ACCC" and alert the media. It was suggested that any difficulty the witness had experienced in obtaining stock was brought about by his own financial position which prevented him from ordering sufficient quantities. He agreed that he had been on a "COD" basis with Walkers and that he did not carry "a lot of excess stock". He subsequently asserted that the only reason he ran out of stock was because "I didn't over-order". This is a little difficult to understand. One would have thought that if his ordering level was not adequate to meet his needs, then he was under-ordering. He accepted that it was a general McDonald's policy to honour food prize coupons which related to other competitions, even those of other retailers.
712 He was asked about a meeting of the Queensland/Northern Territory Co-operative, a body which represents licensees. He had attended a meeting on 24 February 1998 but no subsequent meetings. He was asked why he had stopped attending and said:
Well, I just thought that McDonald's wasn't working in my best interest. I just felt there was a lot of negativity there between McDonald's and I so I mean I just felt the best thing to do was to stay away and concentrate on my business, which I did, and I worked there, you know, six days a week and tried to make the thing profitable.
713 There is clear evidence of hostility between Mr Robinson and the respondent. His evidence did not exclude the possibility of 1998 stock being in his restaurant during the 1999 competition but on the other hand, it did not establish that such was the case. His emphasis upon stock shortages might suggest to the contrary.
714 Ms Hooper's case is based upon a double Park Lane stamp. It could not have had yellow backing as it is obviously a 1998 stamp. It is unlikely that a red-backed stamp could have been attached to the 1999 packaging material which Ms Hooper said she received. The stamp could not have come from a roll of spare labels as it is a double. The only viable theory explaining its presence in a restaurant during the 1999 competition would be that 1998 stock was supplied to the restaurant in 1999 or remained there after the 1998 competition. It is unlikely that Walkers retained 1998 stock. If 1998 stock had remained in the restaurant after the 1998 competition, it would probably have done so as part of an unopened carton. A carton of stock would have lasted for a day or more. It is difficult to believe that distribution of a carton of 1998 packaging could have gone unnoticed by the staff. Yet the evidence of the restaurant witnesses suggests strongly that they neither saw nor heard of any such incident. Despite Mr Robinson's rather negative views of the procedures adopted at his own restaurant, the staff who were called effectively excluded the possibility of 1998 stock remaining in the restaurant after the end of the 1998 competition or being supplied during the 1999 competition. Out of completeness I should say that the roll of spare labels for the 1998 competition was also fully exhausted during that competition.
715 I saw no reason to doubt the evidence of any of the store witnesses. To the extent of any conflict between their evidence and that of Mr Robinson, I prefer that of the employees called by the respondent. The areas of conflict are quite narrow and not directly relevant. Mr Robinson is in dispute with the respondent and appeared to be hostile, although not in the technical, evidentiary sense. This is another case in which the evidence from employees excludes the possibility of 1998 packaging in the restaurant while the claimant does not suggest otherwise. Thus there is simply no evidence that 1998 packaging was in the restaurant in 1999, save for the claimant's assertion that she received the disputed game stamp and the evidence as to food redemption stamps. I am of the view that the disputed 1998 stamp could not have had yellow backing, and yet Ms Hooper says that she received only yellow-backed stamps. She says that she received it with 1999 packaging. This also seems to me to be most unlikely. Her ultimate concession that she was not sure that she had received the stamp in 1999 seriously undermines her claim. In the circumstances I am not satisfied that she received the disputed stamp in the course of the 1999 competition.
DARREN ALAN KEVIN IRWIN
Other Witnesses for Claimant: Nil
Restaurant: Dural; Belfield; M4 Motorway; Minchinbury or St Peters
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: Between 4 and 16 June 1999
716 Mr Irwin claims to have received a Park Lane stamp "very early in the competition", some time between 4 and 16 June. He claims that it was received at Dural, Minchinbury, M4 Motorway, St Peters or Belfield restaurant. On the occasion in question he ordered a large drink, large fries, a child's Happy Meal, a Quarter Pounder and an apple pie. He says that he received "two sets of two game stamps and one set of one game stamp". This presumably means two double labels and a single label. He ought to have received a double label with each of the large drink, large fries and apple pie.
717 He said that one of the stamps had a red back. This was the disputed Park Lane stamp. At the time, he noticed that a cup and fry box had different packaging from the packaging provided with the rest of the food products. Some of the game stamps were red and some, yellow. The manager told him that the colour difference was of no significance. On the evening of 30 June he purchased food from the drive-through at either Minchinbury or M4 Motorway. He took it home, and he and his partner found that one of the stamps was Mayfair, enabling him to complete the Mayfair/Park Lane set. His partner then went to Minchinbury and presented the tray mat to the manager. A redemption envelope was obtained, but the claim was not submitted. On the night of 30 June Mr Irwin saw media coverage of the dispute arising out of this competition. Subsequently, after speaking to a friend, he decided to submit his claim. He did so, and it was unsuccessful.
718 In May 1998 he had moved into a new house which he had built. He is certain that he would not have kept any old game stamps "during my move into the new house and that any of last year's tickets would not have been moved from the old house to the new house". He also received a new company car in July 1998. He said that, "As I keep all of my game tickets in the centre console, any tickets from last year would not be in my car this year". He and his partner have two children aged six and one. Mr Irwin had been a regular patron of McDonald's over recent years, including during the period of the 1998 competition.
719 It was pointed out to him in cross-examination that the 1998 game continued until 16 August, and that he was residing in his new house and driving his new car whilst the game was in progress. He nonetheless asserted that he did not believe that he would have retained stamps from the 1998 game. His new car was inspected weekly, and "It had to be empty". Therefore there could not have been any stamps in it. He kept the 1999 game stamps in the centre console. He said that during the 1998 game he kept his stamps in his car, transferred them from his car to the house, and then affixed them to the tray mat. He continued this practice with his new car.
720 He recalls acquiring the Park Lane stamp but can't remember precisely when or where. He was cross-examined as to how he had identified the spread of dates as 4 to 16 June. It seems that 4 June was chosen because it was the first day of the competition. He was unable to say why he had picked 16 June. During the promotion he and his family frequently patronized McDonald's, attempting to win prizes. He noticed the characteristics of the Park Lane stamp as set out in par 7 of his affidavit at the time that he received it. He thought that it was on either a large cup or large fry box but "can't be one hundred per cent certain". He said, as I understood him, that neither the cup nor the fry box in exhibit 10 was the same colour as that with which he received the disputed stamp. On other occasions when he patronized McDonald's, he received purple cups and purple fry boxes with yellow stamps. On only one occasion did he receive red stamps. He said that of the items which he ordered when he received the Park Lane stamp, two items had red labels and the rest had yellow labels. He did not know whether the red labels were single or double. The disputed single stamp is exhibit 16. Exhibit 17 contains other loose stamps which Mr Irwin acquired during the competition, including one other single red stamp (Pall Mall).
721 He was asked about the discolouration of the two red stamps and said that the yellow stamps had been acquired later in the competition than had the red stamps and that the red stamps were damaged through spillage of drink in the console of the car. At TS 219 l 25 et seq, he said:
... I believed the Park Lane ticket to be useless as it was the previous year's. So, I just left it in the centre console with all the other tickets.
722 He was asked, "But the Park Lane was the necessary ticket to make up the set?" He replied:
But I believed that the Park Lane ticket was the losing ticket. It was the common ticket, as it was the year before. And so I had no need to rush this ticket or anything. I didn't have the Mayfair.
723 He then said that in the previous year they had received several Park Lane stamps during the course of the promotion but had not received a Mayfair stamp. It is curious that the witness should have associated his retention of a Park Lane stamp in the console of his car with his understanding that such stamps were not "winning" stamps in the 1998 competition. There was no reason why Park Lane should again be a "non-control stamp", to use the language adopted during these proceedings.
724 Mr Irwin agreed that his six year old son had collected stamps during the 1998 competition. They were kept on the kitchen table. He said that as a matter of practice, when he went through the drive-through facility, he would collect stamps and store them in the centre console of the car. He discarded some stamps collected in 1999 after receiving a request from his solicitor to provide such stamps for the purposes of these proceedings. He said that he did so because the stamps had been damaged and he would have been embarrassed to send stamps with drink spilt on them. He threw away one or two red stamps. He claimed that he acquired the disputed Park Lane stamp and the red Pall Mall stamp (both singles) at the same time, notwithstanding his belief that he had received two double labels and one single label. He also said that the packaging on two of the products bore red stamps. If both propositions are true, he must have received three or four red stamps. As Park Lane and Paul Mall are both single stamps, Mr Irwin cannot be correct when he says that he received two doubles and a single.
725 When faced with this apparent inconsistency, he initially said that he may have made an error concerning his order on the day in question. However, when cross-examined about that, he said that his evidence was correct. The permutations and combinations involved in this rather difficult problem need not concern me further. It is sufficient to say that the witness conceded that his version was not consistent with the fact that he possessed two single, red-backed stamps. At TS 231 ll 4-5 he said, "I now accept that there must have been either more products or the products that I've got down there are wrong". It is most unlikely that the apple pie box bore a red label as it was not a promotional product in 1998. The witness did not suggest that any of the products bore two single labels as might be the case if stamps from a roll of spare labels had been used.
726 This inconsistency must be seen in the context of his lack of precision as to the date of acquisition and as to the restaurant at which the acquisition took place. He identifies the Dural, Belfield, M4 Motorway, Minchinbury and St Peters restaurants as possible candidates. As I have pointed out, the M4 Motorway restaurant may be a reference to either the M4 City-bound restaurant or to the M4 Westbound restaurant. The reference to Belfield appears to have been a reference to Lakemba.
727 The evidence from the restaurant staff at Dural excludes the presence of 1998 stock at the restaurant during 1999 or at any other time after a date shortly following the end of the 1998 competition. It is relatively clear that the senior staff understood that the remnants of the roll of spare labels had also been disposed of, despite their lack of recollection as to who had done it. Again there is no reason to believe that the roll of stamps could have resurfaced in the course of the 1999 competition to provoke the mischief with which we are presently concerned. The evidence from Lakemba is to similar effect, although the evidence concerning the roll of spare labels is simply that the relevant witnesses do not remember seeing it following the end of the 1998 competition. The evidence concerning M4 Motorway Westbound and City-bound is to similar effect. At Westbound, the witness Suckling recalled that the roll of spare labels was exhausted prior to the end of the 1998 competition. At City-bound, neither Mr Heathcote or Ms Barty recalled seeing a roll of spare labels after the 1998 competition. The former recalled that the 1999 roll bore 1999 stamps. There is no reason to infer that a 1998 roll remained in either restaurant other than Mr Irwin's claim that he received a 1998 stamp.
728 The evidence from the Minchinbury restaurant also seems to exclude the presence of 1998 packaging at the restaurant during the 1999 competition. The evidence of Mr Collar demonstrates that the roll of spare labels for the 1998 competition was exhausted. Mr Ciantar said that the Minchinbury restaurant was trading at such a high level during the 1998 competition that the prospect that it retained 1998 stock after the end of the promotion was remote. The evidence from St Peters is to similar effect, Ms Madon saying that the roll of spare labels was used up by the end of the 1998 promotion.
729 That Mr Irwin is unable to identify the time and place of acquisition of the relevant stamp may be understandable. There is nothing surprising about the fact that a person who patronises a number of restaurants on a continuing basis may not remember where or when a particular incident occurred. I do not dismiss his evidence on that ground alone. However inability to provide details of a particular transaction is obviously a possible indication of fabrication or reconstruction. By avoiding details a witness reduces the possibility that he or she will be caught out in inconsistencies. In the present case it might be thought surprising that Mr Irwin is able to identify the order in which he received the stamps but not the restaurant or restaurants at which he received them. He would no doubt attribute this to his belief that the Park Lane stamp was a non-control stamp.
730 His evidence concerning his new car is also somewhat equivocal. It is a little difficult to accept that he could not have accumulated stamps in it. He did so during 1999. His explanation that the car had to be "empty" for inspections is barely plausible. It is difficult to imagine an employer becoming concerned at the presence of such items if everything else about the car is in order. In any event Mr Irwin received his new car prior to the end of the 1998 competition and conceded that he had stored stamps in its console during the 1998 competition. It is difficult to reconcile this with his evidence that he would not have done so because of regular inspections. Further, car cleanliness apparently did not exclude the possibility that a drink might be spilled on stamps in the console. The witness's evidence concerning the car was suggestive of an attempt to exclude a perceived weakness in his case rather than an honest attempt to explain why he was confident that his stamp was obtained in 1999. There is also the rather amusing suggestion that he would have been embarrassed to send relevant game stamps to his solicitor if they were stained with drink.
731 Various witnesses from each restaurant said that they did not see 1998 packaging during the 1999 competition. Mr Irwin does not swear that he received his disputed stamp from any particular restaurant. In those circumstances it is difficult to see why his evidence ought be accepted as proving that notwithstanding the evidence from restaurant employees, there was 1998 packaging in one or other of the restaurants during the 1999 competition. When one takes into account the criticisms of his evidence to which I have referred, I find myself unpersuaded that he received his disputed game stamp in the course of the 1999 competition.
DANIEL MARK JONES
Other Witnesses for Claimant: Nil
Restaurant: Caboolture
Disputed Game Stamp: Double (Coventry Street)
Alleged Date of Acquisition: Late June 1999
732 Mr Jones obtained a tray mat at the Bribie Interchange restaurant. At some time in late June 1999, he patronized the Caboolture restaurant, ordering a large Quarter Pounder Value Meal and a medium McChicken Value Meal. These meals consisted of two burgers, one box of large fries, one box of medium fries, one large Coke and one medium Coke. He recalls receiving six game stamps. He should have received two double labels and two single labels. One of the stamps had yellow backing and was for Coventry Street. Later that evening, after returning home, he checked all of his stamps and found that the Coventry Street stamp enabled him to complete the Leicester Square, Coventry Street and Piccadilly set. On the following day he presented his mat to the manager at Caboolture and obtained a redemption envelope. He subsequently posted his claim. It was rejected.
733 He did not keep any of his 1998 game stamps. He had claimed three food prizes in that promotion but did not otherwise compete. He did not swap game stamps with friends. He was with his girlfriend when he purchased the products with which he obtained the Coventry Street stamp. Stamps which he had previously obtained were kept in a ring box in the room which he and his girlfriend occupied at his parents' home. On exhibit 41 (his tray mat) there is a Fenchurch Street Station stamp which is apparently a 1998 stamp. He said that he received it in the 1999 competition. At least during the early part of the competition, he and his girlfriend patronized McDonald's every day or every second day. He discarded many of the stamps which he had collected. He thought that he had done so before he had been requested by his solicitors to send to them all stamps in his possession.
734 He thought that the packaging (exhibit 10) was the same as that which he had received throughout the 1999 competition. His Fenchurch Street Station and Coventry Street stamps were not from the same double label. Fenchurch Street Station was obtained much earlier. His recollection is that the stamps had yellow backings. He agreed that both Fenchurch Street Station and Coventry Street appeared to be greyer in colour than the other stamps. He was unable to explain this. It was suggested that he had obtained these stamps in the 1998 competition. His reply was, "Well, as far as I know they are from this year." He said that he could not have been mistaken. He gave no convincing reason for not entering the competition in 1998, but as I observed to counsel in the course of his cross-examination, it seems to me that a person may compete in such a competition in one year and not in another for any number of reasons or for no particular reason. An unconvincing reason may suggest dissimilation, but no reason may not do so In any event, he agreed that he had purchased products and redeemed food prizes in 1998. Thus he certainly received stamps from that competition.
735 The restaurant evidence appears to exclude the possibility that 1998 packaging remained in the restaurant after the end of the 1998 competition and until the 1999 competition. The roll of spare labels was stolen during the 1998 competition. There is no reason to assume that it could have re-emerged during the 1999 competition. In any event Mr Jones' stamp is a double. It is curious that his girlfriend was not called, although it is always possible that she simply did not notice anything or did not recall anything. He claimed to have received the Fenchurch Street Station stamp "way before" the disputed stamp. (See TS 328 ll 14-19.) Given the evidence as to the time taken to exhaust a carton of packaging, this suggests that there were at least two cartons of 1998 packaging in the restaurant and that they were distributed at different times. This is unlikely
736 As I have previously observed, I think it highly unlikely, if not impossible, that a 1998 stamp could have had yellow backing. That is what Mr Jones claims to have received. He does not claim to have received 1998 packaging. His evidence is consistent with that from the restaurant. It is very difficult to see how a 1998 stamp could have been affixed to 1999 packaging, regardless of the colour of the backing. In the circumstances I am not satisfied on the balance of probabilities that Mr Jones received the stamp during the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Gippsland Highway, Cranbourne
Disputed Game Stamp: Double (Coventry Street)
Alleged Date of Acquisition: 14 June 1999
737 Ms Laughlin patronized the restaurant at Gippsland Highway, Cranbourne on 14 June, at approximately 1.00 pm. She ordered, amongst other items, a large drink. She recalls receiving two game stamps on the cup. One of those stamps was yellow and was for Coventry Street. This enabled her to complete the Leicester Square, Coventry Street and Piccadilly set. Later that same day she presented her tray mat at the restaurant and received a redemption envelope. Her claim was rejected. She said that she was certain that the stamps which she relied upon were collected during the 1999 competition. She did not participate in the 1998 competition. At that time, she was pregnant and quite ill. She did not recall visiting a McDonald's restaurant or collecting game stamps during that time.
738 Ms Laughlin has three children aged eight, six and eleven months as at October 1999. She also has two step-children living with her. They are teenagers. She obtained the Coventry Street stamp off packaging which was then in the possession of her eight year old son. He said that he also had a Leicester Square stamp. Both stamps are contained in exhibit 93. The two stamps came from the same cup. At the time, he was sitting at another table with one of his cousins, aged ten. His cousin had four siblings with him. The witness did not see her son take the stamps off the cup, but she saw the Coventry Street and Leicester Square stamps whilst they were still joined together. Both had yellow backing. Each is the left hand stamp of a double. It is therefore impossible that they could have been joined. Further, the Leicester Square stamp is obviously a 1999 stamp, while the Coventry Street stamp is obviously a 1998 stamp. When confronted with this, Ms Laughlin said that she could not be "a hundred per cent certain" that they were joined when received. It is difficult, however, to accept her as a credible witness when she had asserted that she had seen them in that condition.
739 At the time in question, she had other game stamps in her purse which she had previously collected. She went home before she looked to see if she had any completed sets. Her son shares a room with her step-son who is fourteen. She was surprisingly certain that this fourteen year old boy could not have gone to McDonald's without a parent. As I have said, the claimant's eighteen year old step-daughter also lives with her. Ms Laughlin agreed that the drink cup in question matched that in exhibit 10, a purple 1999 competition cup. The witness thought that all of the cups obtained during the competition were of that colour and pattern.
740 Evidence from the restaurant appears to exclude the presence of 1998 packaging in the restaurant at the time of the 1999 competition. This is consistent with Ms Laughlin's evidence that she received yellow-backed stamps on purple packaging. I have dealt with my reasons for concluding that a 1998 stamp could not have had yellow backing and that it is unlikely that such a stamp could have been attached to 1999 packaging. Ms Laughlin's evidence that the two stamps were joined casts doubt on her reliability. I do not see how she could be sure that her stepson had not been to a restaurant without a parent. In any event, her son could have obtained a stamp from one of his cousins at the restaurant quite apart from any other avenues which may have been open to him. I am not satisfied that Ms Laughlin obtained the disputed stamp in the course of the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurants: Annerley, Aspley, Australia Fair, Beaudesert, Beenleigh, Burleigh Heads, Burleigh Waters, Caloundra, Gatton, Helensvale, Labrador, Mt Gravatt, Newmarket, Toowoomba South, The Gap
Disputed Game Stamps:
(1) Double (Park Lane)
(2) Double (Trafalgar Square)
(3) Single (Northumberland Avenue)
(4) Double (Northumberland Avenue)
(5) Double (King's Cross Station)
(6) Single (The Angel Islington)
(7) Single (Trafalgar Square)
Alleged Dates of Acquisition:
(1) 22 June 1999
(2)-(7) Before 27 June 1999
Note: The status of one Northumberland Avenue stamp as a "single" stamp is a little uncertain. It is more likely to be single than double.
741 Mr Leishman is a private inquiry agent. He obtained a tray mat at the Helensvale restaurant shortly after the commencement of the 1999 competition. He swore that between 4 June 1999 and 8 July 1999 he attended numerous restaurants. He would normally purchase hash browns, large fries and a large drink or shake. He recalled receiving game stamps with his purchases, including:
(1) Park Lane, possibly with a red back, enabling him to complete the Park Lane/Mayfair set;
(2) Trafalgar Square, possibly with a red back, enabling him to complete the Trafalgar Square, Fleet Street and The Strand set;
(3) Trafalgar Square, possibly with a red back, enabling him to complete the Trafalgar Square, The Strand and Fleet Street set;
(4) Northumberland Avenue, possibly with a red back, enabling him to complete the Northumberland Avenue, Pall Mall and Whitehall set;
(5) Northumberland Avenue, possibly with a red back, enabling him to complete another Northumberland Avenue, Pall Mall and Whitehall set;
(6) King's Cross Station, possibly with a red back, enabling him to complete the railway station set; and
(7) The Angel Islington, possibly with a red back, enabling him to complete The Angel Islington, Euston Road, and Pentonville Road set.
742 According to his affidavit all claims but one were presented on 8 July. The outstanding claim (including one of the disputed Trafalgar Square stamps) was presented on 16 July. All claims were rejected.
743 Mr Leishman travels all over south-east Queensland and visits McDonald's restaurants up to eight times per week. During the 1999 competition he placed all stamps on the dashboard of his vehicle and then gave them to his wife to match for prizes. In early July he put all of them together to formulate the winning entries. This seems a little inconsistent with the earlier paragraph in his affidavit in which he said that he relied on his wife to match the stamps. In the course of his oral evidence, he produced three other red stamps which he claimed to have obtained during the 1999 competition. They are exhibit 66. Exhibits 64 and 67 contain his allegedly winning stamps. Exhibit 65 is a photocopy of his "winning sets". In his affidavit he said that he had patronized the restaurant at Margaret Street, Toowoomba. In his oral evidence he said that this was a reference to the restaurant at Ruthven Street, Toowoomba South. As a former police officer, he has previously given evidence on many occasions. He was cross-examined about how he came to refer to the Margaret Street restaurant rather than to the Ruthven Street restaurant. The importance of this is that between 4 June and 8 July 1999, the Margaret Street restaurant was closed. Mr Leishman denied knowledge of this.
744 He said in oral evidence that he was in error in saying in his affidavit that all but one of his claims were presented at Helensvale on 8 July. This should have been 6 July. He completed his first winning set on 22 June at the Mt Gravatt restaurant. This appears to be the Mayfair/Park Lane set. (See TS 608.) He offered no reasonable explanation for failing to present it until 6 July. He said that he would have been in and out of McDonald's restaurants at least ten times during that period but had not had time to ask for a redemption envelope because he had appointments. He had recently started a new business. He said that he used the restaurant drive-through facilities, apparently implying that he could not have obtained a redemption envelope at those facilities. He examined his stamps on the weekend following 22 June. It seems that he found the other matches at this time. By 6 July (perhaps by 3 July) he had heard or read of the controversy concerning the competition. He became concerned about his winning stamps, possibly because he had read that the challenged stamps did not bear the golden arches. He spoke to the solicitors for the applicant before claiming his "prizes".
745 During the 1998 competition, he had eight or ten tray mats. He kept them on a bulldog clip and carried the bulldog clip with him. When he was eating a meal, he would affix the relevant stamps, throwing away any duplicate stamps (TS 614 ll 15-27). In 1999 he also had numerous tray mats but was too busy to stop and eat. He used drive-through facilities and stored the stamps on the dashboard of his car. Each night he would put them on a shelf in the kitchen and at weekends, he would affix them to his tray mat. He may not always have used drive-through facilities. He may have eaten at Australia Fair which does not have one. He agreed that some of the 1998 stamps appeared to be darker in colour than the 1999 stamps. He could not say whether any of them had red backing when received. He was shown exhibit 10, the 1999 competition packaging, and agreed that he had received that type of cup, or something similar during the competition. The fry boxes were also similar, although he declined to say that "on each and every occasion" he had received such packaging (TS 622 lines 11-12).
746 At some stage prior to giving evidence he had been asked by his solicitor to produce all relevant documents. It seems that he did not produce the numerous tray mats he used during the 1999 competition. He assumed that they had all been discarded. He thought that his wife would have thrown them out, but he did not ask her. He checked on this matter before giving evidence and found that they had not been discarded. He produced them. His 1998 tray mats have been discarded. He has three young children aged (at the time of his evidence) nearly seven, eight and nearly thirteen. He was asked why his wife had not claimed the prizes on his behalf, given that he was too busy to do so. He said that she was a swimming instructor and was gearing up for the season. She was also busy in the administration of their business office.
747 I did not find Mr Leishman to be an impressive witness. It would be easy to draw adverse inferences based upon the number of prizes which he claims, his inability to identify the relevant restaurants at which disputed stamps were obtained and his uncertainty as to when they were obtained. However a person who travels widely in his work and frequents McDonald's restaurants whilst so doing might conceivably find himself in such a position. However the reference to the Margaret Street restaurant in his affidavit, belatedly changed in his evidence, is of some concern. That he claimed to have patronized a restaurant which was closed at the time suggests invention. The "correction" of his earlier claim may have been prompted by discovery of the fact that the restaurant was closed at the relevant time. It is also possible that, as he suggested, he instructed his solicitors that he had acquired the product at a Toowoomba restaurant and they had inserted the detail, but this seems unlikely.
748 Another area of concern is his firm assertion that during 1999 he usually used drive-through facilities. At TS 617, he appears to have realised that Australia Fair (one of his nominated restaurants) did not have a drive-through facility. At TS 618 he suggested that he probably hadn't been at Australia Fair between 22 June and 6 July 1999. All of this is a little too convenient without necessarily demonstrating inconsistency or dishonesty. His evidence has about it the hallmark of a witness who is quite happy to tailor a story to suit his own interests. His evidence concerning non-discovery of the 1999 tray mats falls into the same category. His reservation concerning the colours of packaging and stamps is also very convenient. It is difficult to accept that a former police officer, now a private detective, who regularly frequented these restaurants, had not noticed such bright colours.
749 His explanation for not having claimed his prizes promptly is unconvincing. It is difficult to accept that he frequented McDonald's often enough to obtain seven prizes in three weeks but did not have the time to obtain a redemption envelope. His reference to his wife being busy as a swimming coach in June-July was also a little unlikely. He did not claim a prize until after the publicity concerning the problem with the competition and after he had spoken to the applicant's solicitors. As I have said, there was ample encouragement available to a person who had an inclination towards making a false claim. I do not mean by this that anybody was deliberately encouraging such claims, but support which assumed that some claimants were honest may well have encouraged others who were not. It is also significant that Mr Leishman collected a substantial number of stamps in 1998. Although, as I have said, I have been careful not to draw an adverse inference based solely upon the number of prizes and Mr Leishman's inability to say with certainty at which restaurants he obtained most of the disputed stamps, nonetheless this absence of detail does not assist his case. He has identified only the Mt Gravatt restaurant as the source of the stamp with which he completed the Mayfair/Park Lane set. I turn to the restaurant evidence.
Annerley
750 The evidence appears to exclude the presence of 1998 packaging at the restaurant during the 1999 competition. According to Ms Gough, the roll of spare 1998 labels was used during the competition. I have elsewhere dealt with the possibility of red game stamps being provided on 1999 packaging and indicated that I consider it to be unlikely. I have also pointed out that it is unlikely that 1998 packaging could have been distributed in any quantity in a restaurant without its being noticed by at least some of the staff. I keep in mind Mr Taylor's claim that he obtained his disputed stamp at this restaurant.
Aspley
751 This was the restaurant at which unused promotional packaging was detected in October 1998 and subsequently used. Mr Wigan carried out a search to ensure that no other packaging remained. Other witnesses indicated that there was no 1998 packaging in the restaurant during the 1999 competition. As to the roll of spare labels, it seems that it was not seen after the end of the 1998 competition by Ms Lynch who was the restaurant manager. There is no reason to believe that it could have re-surfaced during the 1999 competition other than for Mr Leishman's assertion that he possibly obtained a stamp or stamps there, Mr Faulk's claim and possibly Mr Hayward's.
Australia Fair
752 The evidence from this restaurant suggests that no 1998 stock was available for use during 1999. The 1998 roll of spare labels was exhausted during or shortly after that competition. I keep in mind the Campbells' claims concerning this restaurant.
Beaudesert
753 The evidence from Beaudesert indicates that no 1998 packaging was in the restaurant at the time of the 1999 competition. Promotional packaging was in short supply at the end of the 1998 competition. The roll of spare labels was used to relieve this situation. Although the evidence as to exhaustion of the roll may not be conclusive, it is clear that those witnesses who had worked at the restaurant in 1998 and been aware of the roll, thought that it had probably been used up. Certainly, nobody saw it after the end of the competition. Again, apart from this claim, there is no reason to believe that it re-emerged in the course of the 1999 competition.
Beenleigh
754 The evidence excludes the presence of 1998 packaging at the restaurant during the 1999 competition. The position with respect to the roll of spare 1998 labels is a little uncertain in that Mr Altmann thought that the remnants had been returned to Mr Fegelson's office for disposal. Mr Fegelson thought that they had either been sent to his office or disposed of at the restaurant. No witness has seen them since the end of the 1998 competition.
Burleigh Heads (referred to by Mr Leishman as "Miami") and Burleigh Waters
755 The restaurant evidence demonstrates that there was no 1998 packaging in either restaurant during the 1999 competition. The evidence of Ms Heath demonstrates that the rolls of spare labels at Burleigh Waters were used up in the course of the 1998 competition. The evidence of Ms Quinn demonstrates that the roll of spare labels at Burleigh Heads was also used during that competition.
Caloundra
756 The restaurant evidence establishes that there was no 1998 stock in the restaurant during the 1999 competition. The evidence of Ms Collins and Mr R M Hinds indicates that no spare labels remained in the restaurant after the end of the 1998 competition.
Gatton
757 The evidence demonstrates that no 1998 stock was present in the restaurant during the 1999 competition. The evidence of Messrs Bavister and Potter indicates that the roll of spare labels was fully used in 1998.
Helensvale
758 The evidence indicates that no 1998 stock was present in the restaurant during the 1999 competition. Mr Hodgson said that he did not see the roll of spare 1998 labels after the end of the competition. Mr Power said that there were labels remaining at the end of that competition but that they were destroyed.
Labrador
759 Ms McEwan performed virtually every monthly stocktake for twelve to eighteen months prior to September 1999. Since the end of the 1998 competition she has not seen any 1998 promotional material. It had all been used up during the run-out period following that competition. She does not know what happened to the roll of spare 1998 labels, but she did not see it during the 1999 competition. The Campbells may have suggested that they might have obtained their disputed stamps at Labrador.
Mt Gravatt
760 The evidence establishes that there was no 1998 packaging in the restaurant during the 1999 competition. Mr Mourilyan said that some stamps remained on the roll of spare labels at the end of the 1998 competition. He has not seen them since that time. Mr Mark Slennett-Roberts came to the restaurant in February 1999. He said that he has not seen the 1998 roll since that time. The evidence concerning the Whittaker claim suggested that this restaurant may have been the source of the relevant disputed stamp.
Newmarket (This restaurant was described by Mr Leishman as Alderley)
761 This restaurant was relocated in May 1999. The evidence indicates that there was no 1998 packaging in the restaurant during the 1999 competition. Ms Taylor was the second assistant manager at Newmarket during the 1998 competition. She saw the roll of spare labels in that year. It was kept in the safe. She did not use it and did not see it again after the end of the competition. This restaurant was also a possible source of the disputed stamp in the Whittaker claim.
Toowoomba South
762 The evidence indicates that there was no 1998 packaging in the restaurant at the time of the 1999 competition. The evidence of Mr Armitage and Ms White suggests that the roll of spare labels was fully used in that year. Mr Ward said that he had not seen it since the end of the competition.
The Gap
763 The evidence indicates that there was no 1998 packaging in the restaurant during the 1999 competition. Ms McCurley said that the 1998 roll of spare labels was not in the restaurant at the time of the 1999 competition. Ms Cox claimed to have received her disputed stamp here.
764 For reasons which I have previously given, I treat Mr Leishman's evidence with considerable reservation. The evidence from the restaurants strongly suggests that there was no 1998 stock in any of the restaurants at any relevant time and that the various rolls of spare labels from 1998 had either been exhausted during the competition or subsequently discarded. I consider it most unlikely that 1998 stamps could have been attached to 1999 packaging. It is difficult to see how Mr Leishman's case can be assisted by the evidence of other claimants that they received disputed stamps from restaurants nominated by him. This is partly because he has nominated so many restaurants and partly because that other evidence was generally of doubtful value. In those circumstances I do not accept Mr Leishman's evidence and am not satisfied that he received any of his disputed stamps in the course of the 1999 competition.
IAN ROBERT MAYNARD
Other witness for Claimant: Julie Lipscombe
Restaurants: Canning Vale, East Victoria Park, Maddington, Melville, O'Connor, Rockingham, Warnbro, Woodbridge (all in Western Australia)
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: Beginning of June, 1999
765 Mr Maynard patronized McDonald's three to four times per week for breakfast, and at other times with his family. When the claimant had breakfast at McDonald's he would have a McMuffin, an apple pie and coffee. The main restaurants which he attended were Rockingham, Warnbro and Melville. He also attended Woodbridge, O'Connor, Canning Vale, Maddington and East Victoria Park. He claimed to have received a Park Lane stamp at the beginning of June 1999. He gave it to Julie Lipscombe, his partner. He did not recall where he obtained it or the product with which he purchased it. On 14 June 1999 he purchased breakfast at East Victoria Park and obtained the Mayfair stamp. He called Ms Lipscombe and told her that he had received it and that she should find the Park Lane stamp. They later went to the Warnbro restaurant and obtained a redemption envelope. He forwarded the claim, but it was rejected.
766 On two occasions during 1999, he saw stamps from rolls being handed out by restaurant employees. On one occasion he was given two stamps. The stamps had not previously been attached to any product. On the other occasion Ms Lipscombe received two such stamps. As the disputed stamp is a double, it could not have come from a roll of spare labels. In par 22 of his affidavit he said that he had not entered the 1998 competition. However, in par 23 of his affidavit, he said that Ms Lipscombe had cleaned out her purse twice in the year prior to August 1999 and thrown out 1998 stamps on one of those occasions.
767 He and Ms Lipscombe have two children aged seven and eight. The family attended McDonald's restaurants during the course of the 1998 competition. They collected food redemption stamps for use at future visits and gave the other game stamps to the children who would affix them to a tray mat whilst in the restaurant. They did not take the mats home. During the 1999 competition Ms Lipscombe looked after the tray mats and stamps. Every stamp which the claimant received during the 1999 competition had a yellow back.
768 In cross-examination Mr Maynard said that he had a clear recollection of handing the Park Lane stamp to Ms Lipscombe and saying "Hang on to that. We will go put it on the board." This suggests that he was conscious of having received it at the relevant time. One might therefore expect more detail as to time and place. He does not recall receiving it as part of a double stamp. He thought that they had at least two tray mats, one of which is exhibit 61 and one, exhibit 63. Apparently exhibit 61 was sent to the applicant's solicitors in response to a request, but exhibit 63 was not. The witness agreed that the items of packaging in exhibit 10 were similar to those which he received in the course of the competition. He particularly identified the fry boxes and the apple pie box.
769 Mr Maynard's assertion that he did not participate in the competition in 1998 must be seen in the context of his evidence that he saw Ms Lipscombe clean out her purse and discard game stamps, suggesting participation by her in the 1998 competition and therefore the possibility that stamps were retained after the end of the 1998 competition. This is particularly significant as she was with him when he received the disputed Park Lane stamp. In the same vein is his evidence that during the 1998 competition, their children affixed stamps to tray mats.
770 Ms Lipscombe agreed that Mr Maynard gave her stamps which he had collected and that she would either put them in her purse or on to the tray mats. When the family went to McDonald's together, they would affix game stamps to the mats directly or she would put them in her purse and attach them at a later time. She recalled Mr Maynard telephoning her in mid-June to say that he had received a Mayfair stamp and asking her to look for the Park Lane stamp which he recalled having given her. She found the Park Lane stamp in her purse. When he arrived home, they went to the Warnbro restaurant where they allowed the children to place the stamps on the tray mat. They then obtained a redemption envelope. Ms Lipscombe did not have any 1998 stamps in her possession during the 1999 competition. She did not collect property stamps in 1998 although she did redeem some instant food prizes. Any remaining Instant Win game stamps were disposed of only weeks after the conclusion of the 1998 competition. She would have cleaned out her purse at least twice in the course of the last year. In cross-examination the witness said that she had swapped stamps with one person during the 1999 competition. She initially said that she had kept all of the stamps in her purse or on the tray mat. At a later stage she said that at some stage, she had transferred them to a child's jewellery box. They kept a folder containing material relating to the competition.
771 As I have previously observed, the fact that a claimant is unable to recall at which of numerous restaurants he or she obtained a particular stamp does not help the case. Given Mr Maynard's clear recollection of receiving the stamp and handing it to Ms Lipscombe, one might reasonably have expected him to recall where he was at the time. His recollection was that all of the stamps which he received had yellow backing and came with 1999 packaging. As I have previously demonstrated, it is virtually impossible for a 1998 stamp to have had yellow backing. It is also most unlikely that such a stamp could have been obtained with 1999 packaging. As this is a double stamp it cannot have come from a roll of spare 1998 stamps.
772 Mr Maynard's evidence that he did not compete in the 1998 competition is a little unconvincing. It may be that in par 22 of his affidavit he was trying to exclude his own involvement in the competition, whereas in par 23 he was acknowledging that Ms Lipscombe had participated. However the fact is that Ms Lipscombe collected 1998 stamps in her handbag, although she says that she did not collect property stamps. She found the disputed stamp in her hand bag. The children also had access to stamps in 1998, although Mr Maynard thought that they had not taken them home. This evidence suggests that there were avenues by which 1998 stamps may have found their way into Mr Maynard or Ms Lipscombe's possession in 1999. The children were of school age and so it is also likely that they had contact with other children. I turn to the restaurant evidence.
Canning Vale
773 The evidence establishes that there was no 1998 packaging in the restaurant during 1999. Mr Sanders' evidence demonstrates that the roll of spare labels provided in 1998 was used during that competition. It is not relevant for present purposes.
East Victoria Park
774 The evidence demonstrates that there was no 1998 promotional material in the restaurant during the 1999 competition. The evidence of Mr Evans and Ms Kuhnert shows that the roll of spare labels was used in the course of the 1998 competition. The roll is, in any event, not relevant for present purposes.
Maddington
775 Similar comments apply to the Maddington restaurant, save that the evidence concerning exhaustion of the roll of spare labels came from Ms Chalmers and Ms Agostino.
Melville
776 The evidence indicates that there was no 1998 promotional material in the restaurant during the 1999 promotion. Mr Stannard's evidence indicates that the rolls of spare 1998 stamps were exhausted.
O'Connor
777 The evidence indicates that there was no 1998 promotional packaging in the restaurant during the 1999 competition. The evidence of Mr Manika and Mr La Macchia demonstrates that the roll of spare 1998 stamps was used up during the competition.
Rockingham
778 The evidence demonstrates that there was no 1998 promotional packaging in the restaurant during the 1999 competition. The witnesses Sims and Bull say that they did not see the spare roll after the end of the 1998 competition. Mr Sinclair says that to his knowledge, it was exhausted early in the promotion.
Warnbro
779 This restaurant only opened on 15 May 1999. The evidence of Mr Bull and Ms Beacham suggests that there was no 1998 promotional packaging in the restaurant during the 1999 competition.
Woodbridge
780 The evidence of the witnesses Briffa and Beard demonstrates that there was no 1998 packaging left in the restaurant during the 1999 competition and that the roll of spare 1998 stamps was used up during the competition.
781 Given the evidence from the restaurants and the absence of any specific assertion by Mr Maynard that he obtained his disputed stamp at any one of them, there is no good reason for preferring his evidence to theirs. This is particularly so given the specific comments which I have already made concerning his evidence. He does not claim to have received 1998 packaging. I am not satisfied that he obtained the disputed stamp in the course of the 1999 competition.
PETER ANTHONY McGAHEY
Other Witnesses for Claimant: Nil
Restaurants: Erindale, Conder, Tuggeranong
Disputed Game Stamp: Single (Coventry Street)
Alleged Date of Acquisition: One to two weeks before 17 June 1999
782 Mr McGahey had patronized McDonald's about three times per week, using the drive-through facilities. On 17 June he recalled purchasing McDonald's products from the Nowra North McDonald's restaurant. He received a yellow Leicester Square stamp. One or two weeks previously, he had received the Piccadilly and Coventry Street stamps with products purchased at either Erindale, Conder or Tuggeranong. He had kept them in the ashtray of his car. On 18 June he went to the Tuggeranong restaurant and obtained a redemption envelope. He submitted his claim. It was rejected. During the 1998 promotion he was in Cairns and did not participate. He had owned his present motor vehicle for about four months in August 1999 and so could not have accumulated 1998 stamps in it. Although he had not participated in the 1998 competition, he had torn the stamps off packaging. They were discarded "with the rest of my rubbish". He kept Instant Win stamps and redeemed them for food prizes. This seems a little inconsistent with the assertion in his affidavit that he had not competed in 1998. He asserted that the discolouration of the Coventry Street stamp occurred after he had submitted his claim.
783 He could not remember the purchases with which he obtained the Coventry Street stamp. The cups received in 1999 were similar to those in exhibit 10. As far as he could recall they bore yellow stamps. The fry boxes in exhibit 10 were also similar to those in which he had obtained fries. They had also borne yellow stamps. His Coventry Street stamp would have come with a drink cup, a fry box or an apple pie box. He said at one stage that he always bought large fries and large drinks. However he later said that on some occasions, he may have bought smaller products. He frequently bought small drinks which did not bear any stamps but during the competition, he bought large drinks because they bore two stamps. He did not buy hash browns because he did not like them.
784 The evidence from Conder establishes that no 1998 packaging was in the restaurant during the 1999 promotion. The evidence of Ms Edward demonstrates that the unused portion of the roll of spare 1998 labels was disposed of at the end of the competition. The evidence from Erindale is to similar effect. Mr Hylton-Cummins said that all labels on the spare roll were used during the 1998 promotion. The evidence from Tuggeranong also establishes that no 1998 stock was in the restaurant during the 1999 competition. The evidence concerning the roll of spare labels is not quite as decisive. Ms Walker recalled the roll used in the 1998 competition. It was kept locked in the safe. She cannot recall whether it was used in its entirety. She did not see it during the 1999 competition. The only roll of labels she saw in 1999 had yellow labels.
785 Mr McGahey's evidence that the disputed stamp had yellow backing and that it was affixed to 1999 packaging renders his claim somewhat unlikely. The passage at TS 898-900 clearly indicates that his best recollection was that he obtained the Coventry Street stamp on a drink cup, an apple pie box or a fry box and that the fry box and cup would have been large. It was only when the question was pressed with a view to achieving certainty that he shifted ground to the extent of saying that he could, from time to time, have received a small cup. A small cup would not have borne a label, however he may have meant "medium". There is also the possibility that a product may have been sold accompanied by stamps from the spare roll. However he appears to have been aware of the difference between single and double stamps. He said at TS 982, "And I was buying the large ones due to the fact that there were two stamps on them as well." Had he received single labels from the roll, one assumes that he would have recalled. Of course such labels may have been affixed to products before he received them, although that possibility was not canvassed in the evidence of any of the restaurant witnesses.
786 It is a matter of some curiosity that whereas he recognized the Leicester Square stamp immediately upon purchase and was able to identify the restaurant in question, he was unable to identify the restaurant at which he had obtained the disputed stamp. It may be that his contemporaneous realization that the Leicester Square stamp completed a set caused him to take note of where he was. Again, there is no reason why Mr McGahey's evidence that he must have received the stamp at one of three restaurants should be preferred to the evidence of the various restaurant witnesses who said that they saw no 1998 packaging in the restaurants in the course of the 1999 competition. This is particularly so since Mr McGahey's own evidence as to packaging is quite consistent with theirs. He claims to have received a yellow stamp on 1999 packaging. As I have said on numerous occasions, I do not consider that it is at all likely that a 1998 stamp could have been supplied with yellow backing, nor that it could have been provided on 1999 packaging. I am not satisfied on the balance of probabilities that Mr McGahey received his disputed stamp in the course of the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Indooroopilly
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 22 June 1999
787 On 22 June Ms McInnes obtained a tray mat from the Indooroopilly restaurant. On that day she also ordered a large Grilled Chicken Meal, consisting of a grilled chicken burger, large fries and a large Diet Coke. She received four game stamps, two on the Diet Coke cup and two on the fry box. One stamp was Park Lane. Each product should have borne one double label. In her affidavit, she said that she could not recall the colour of the backing. This acquisition "enabled" her to complete the Park Lane/Mayfair set. However it seems that she actually received the Mayfair stamp from her sister on 25 June. On that day, at the Yamanto restaurant, she obtained a redemption envelope and posted it on 26 June. The claim was declined. Paragraph 13 of her affidavit is as follows:
Last year I did not play the game because I thought I would not win. I am certain that I did not use last year's game stamps as whatever we had from McDonald's lying around or what is left over from any competition I throw away in the bin before we left any McDonald's restaurant.
788 It is neither pedantic nor irrelevant to draw attention to the inconsistent tenses in this paragraph. Her initial assertion was that she had not played Monopoly in 1998. However the witness did not exclude the possibility that her stamp was received in 1998 upon that ground. She said rather that she would throw away "whatever we had from McDonald's lying around or what is left over from any competition ... ." It is not clear whether she is there referring to past or present practice. In any event, the fact that Ms McInnes felt the need to refer to such practice suggests that she had doubts as to whether she collected stamps in 1998.
789 In her evidence-in-chief she said that she had obtained the Mayfair stamp from her sister. This is perhaps inconsistent with par 14 of her affidavit in which she said:
I am certain that the tickets upon which I have rely [sic] to collect my prize were acquired by me from McDonald's restaurants during this year's competition, which commenced on 4 June 1999.
790 She agreed that during the competition she had received packaging similar to that in exhibit 10 and that it had borne yellow stamps. She has three children aged thirteen, ten and six. Her husband has patronized McDonald's over a number of years. The two elder children also patronized McDonald's, both with other people and with her. The six year old child only went to McDonald's with her. During the 1999 competition the family went to McDonald's on only one occasion. She said that neither she nor the children had otherwise been there during the competition. Paragraph 10 of her affidavit seems to suggest that the Mayfair stamp was obtained at Yamanto on 25 June. She said in oral evidence that her sister had given it to her. I would have inferred from those propositions that she and her sister were at Yamanto when her sister obtained the Mayfair stamp. However, if Ms McInnes patronized McDonald's only once in 1999, that could not be correct. Perhaps she went to Yamanto solely to obtain a redemption envelope. She agreed that the cup in which she received the Diet Coke was similar to that in exhibit 10, but she could not be sure that the yellow label was the same as that which she had received. She agreed in cross-examination that she was playing the game with her married sister.
791 The Indooroopilly restaurant closed prior to the commencement of the 1998 competition. There is evidence that it received promotional medium cups and medium fry boxes when it re-opened at the end of the competition, but these products are prima facie not relevant to the present claim as Ms McInnes says that she received her stamp on a large cup. Ms Allan said that the restaurant had not received any 1998 packaging or a roll of spare labels prior to its closing in 1998. Ms Wallace said that she saw no such roll in the course of the re-opening of the restaurant. The evidence indicates that no 1998 stock was in the restaurant during the 1999 competition. Ms McInnes does not suggest to the contrary. It is unlikely that the disputed stamp could have come into the restaurant in association with 1999 packaging for reasons which I have previously given. Ms McInnes's evidence suggests that she should have received a double label. When asked to say whether or not she did so, she appears to have avoided the question. Her son, who apparently peeled off the disputed stamp, was not called.
792 It is very difficult to see how Ms McInnes' claim can be made out. Her primary claim is that she received her 1998 Park Lane stamp with a large purple cup. This restaurant almost certainly received no 1998 stock other than the small quantity delivered on 14 August and probably used shortly thereafter. It is theoretically possible that it may have received 1998 stock during the 1999 competition, however for reasons given elsewhere, that is most unlikely. There is evidence of some transfers of large fry boxes but none of any transfer of large cups. Ms McInnes said that she also bought large fries, but she seems clearly to have identified the cup as the source of the relevant stamp. It is a single stamp, not a double. This casts further doubt upon her version. It seems most unlikely that there could have been any 1998 single stamps in the restaurant, either on product or on a roll of spare labels.
793 In all of the circumstances I am not satisfied on the balance of probabilities that Ms McInnes received the disputed stamp in the course of the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurants: Elsternwick, Clifton Hill, Traralgon, Doncaster East
Disputed Game Stamps:
(1) Single (Park Lane)
(2) Single (Marlborough Street)
Alleged Dates of Acquisition:
(1) Between 11 June and 1 July 1999
(2) Between 11 June and 1 July 1999
794 Mr Miller obtained a tray mat at either Traralgon, Elsternwick or Clifton Hill. Between 22 June and 1 July he attended with his wife at the drive-through facilities at Elsternwick and Clifton Hill and the restaurants at Traralgon and Doncaster East. On these occasions they ordered large drinks and large fries and received two game stamps with each product. One of these stamps was Park Lane and one, Marlborough Street. The Park Lane stamp enabled him to complete the Park Lane/Mayfair set. The Marlborough Street stamp allowed him to complete the Marlborough Street, Vine Street and Bow Street set. On about 13 July Mr Miller and his wife obtained a redemption envelope. The claims were declined. Mr Miller is certain that the stamps were acquired during the 1999 competition. He and his wife were interested in the competition because of the motor vehicle prize. Their daughter had recently moved to Jindabyne and did not have a car. They participated because they hoped to win a car for her.
795 In his oral evidence Mr Miller said that he could have obtained the disputed stamps as early as 11 June. Apart from the large drinks and large fries referred to in par 5 of his affidavit, they often ordered burgers. He also said that they may have bought drinks and fries of other sizes, in particular drinks. On some occasions they went to restaurants with other people. Shortly before 1 July, he discovered that he had two complete sets. He stored his game stamps in the centre console of his car. His wife stored hers in her purse. They usually affixed the stamps to the tray mat at the office. He could not explain why they had waited until 13 July to claim his prizes, save that they had heard, on or about 7 or 8 July, that McDonald's were declining to honour some claims. They also heard that a firm of solicitors was planning to take action. He contacted it, asking whether or not he should submit a claim. He did so on 13 July. The packaging contained in exhibit 10 was similar to that which he had received during the competition, but he could not honestly say so "categorically". He could not say whether the disputed stamps had yellow backing.
796 I have previously commented upon the significance to be attached to the fact that a claimant is unable to identify the restaurant at, or date upon which a relevant purchase was made. I can understand that a person patronizing numerous restaurants may accumulate stamps but not recall the source of a particular stamp. However a question arises as to the weight to be attached to evidence which lacks such particularity. There is also the question of the weight to be attached to the assertion that the stamp must have been acquired in the course of the 1999 competition simply because the witness does not recall having had it in his or her possession at any earlier time or asserts that he or she did not enter the 1998 competition.
797 The restaurant evidence from Clifton Hill indicates that no 1998 stock was in the restaurant during the 1999 competition. Mr Liew, the licensee, said that he had disposed of the remaining labels from the spare roll used in the course of the 1998 competition. The evidence from Doncaster similarly demonstrates that there was no 1998 stock in the restaurant during the 1999 competition. Mr Denmead, the operations manager responsible for three restaurants, including Doncaster East, recalls that in 1998, the roll of spare labels was stored in the safe. On one weekend during the promotion, it was removed for use. He did not see it again. It seems unlikely that it was stored somewhere in the restaurant and re-emerged in the course of the 1999 competition.
798 The evidence from Elsternwick is to similar effect. Mr Kelly did not recall seeing the roll of spare labels after the end of the competition, although he regularly went to the cash drawer where it had been kept. Mr Rubenstein said that a small number of labels remained on the roll at the end of the competition. Mr Knight said in oral evidence that he had thrown it away after the competition. The evidence from Traralgon is also to similar effect. Both Ms Lester and Ms Pendlebury say that the roll of spare labels was exhausted during the 1998 competition.
799 Mr Miller's primary position is that he obtained the stamps with large fry boxes and large cups. Both disputed stamps are singles. He was unable confidently to identify either the colour of the relevant packaging or the backing on the stamps. As I have said, he also has not identified the restaurant or time at which either stamp was obtained. His wife was not called. Mr Miller did not submit his claim until after he had spoken to solicitors who were proposing to commence proceedings. At the time of making his claim he also wrote to the Office of Fair Trading and Business Affairs. A copy of the letter is exhibit 92. Having regard to all of the evidence, I am not satisfied that Mr Miller obtained his disputed stamps in the course of the 1999 competition.
Other Witnesses for Claimant: Melody Lynch, Mark Robinson
Restaurant: Deception Bay
Disputed Game Stamp: Double (Marlborough Street)
Alleged Date of Acquisition: 26 June 1999
800 Mr Nolan lives with Ms Lynch. They have one child who is very young. Ms Lynch's brother also lives with them. Mr Nolan regularly attended McDonald's restaurants, usually Deception Bay, Caboolture or Nerang. He was aware of the 1998 competition but did not participate in it, save that he used some of the Instant Win food stamps. He was in Gunpowder near Mt Isa from February until July 1998. There were no McDonald's restaurants in Gunpowder. He did not participate in the competition when he returned to Brisbane. In September 1998, the home which he shared with Ms Lynch was destroyed by fire. They lost all of their personal possessions and papers.
801 Mr Nolan usually used the drive-through service at restaurants, normally ordering a large Big Mac Meal Deal and often, an apple pie. He obtained a tray mat at Deception Bay and kept it at home. If he ate away from home, he would remove the stamps and keep them in his wallet. When he arrived home, he would affix them to the tray mat. When the family ate McDonald's food at home, he would remove the stamps and affix them to the tray mat immediately.
802 On Saturday 26 June, at the drive-through facility at Deception Bay, he purchased two Big Mac Meal Deals and two sundaes. He took them home. He said in his affidavit that Ms Lynch was with him at the time. He later said otherwise in oral evidence. This may be a drafting deficiency in the affidavit. He removed the stamps from the packaging and found an orange Marlborough Street stamp. He realized that this completed a set with Bow Street and Vine Street. He claims that all three stamps had golden arches on them. He affixed the third stamp to the tray mat and on Sunday 27 June, went to the Deception Bay restaurant and obtained a redemption envelope, He submitted a claim which was rejected. When he received a colour photocopy of his coupon from Creata, he noted that the Marlborough Street stamp "... no longer had the golden arches on it. The stamps also appeared to be dirty. They were not like this when I sent them away." In cross-examination, he resiled from his assertion that there had been golden arches on the Marlborough Street stamp when he submitted the claim. He was shown exhibit 10 containing the 1999 packaging and agreed that he had received similar packaging during the competition and that the packaging bore yellow stamps.
803 It is a little difficult to understand how he could have sworn that each of the three stamps bore a golden arch (as he does in par 12 of his affidavit) when this is clearly not so. His explanation in cross-examination was evasive and unconvincing. The only explanation for his assertion is that he wished to create the impression that McDonald's or their agents had tampered with the stamp. In any case, the issue raises doubts concerning his credibility. He thought that he had obtained the Marlborough Street stamp from a large cup of Coca Cola but was unable to identify the other stamp from the double label.
804 Melody Hope Lynch regularly attended McDonald's restaurants, usually Deception Bay or Nerang. She usually used the drive-through service. She was with Mr Nolan at Deception Bay on 26 June 1999 when they obtained two Big Mac Meal Deals and two sundaes. They took the meals home and removed the stamps, discovering that they had a Marlborough Street stamp which completed a set with Vine Street and Bow Street. All three stamps had golden arches. In the course of her oral evidence-in-chief, she said that she was not 100 per cent sure that she had seen golden arches on each stamp. She also thought that the Marlborough Street stamp had come from a drink cup. She agreed that the packaging in exhibit 10 matched the large cup with which the stamp had been received and that the stamp had a yellow back. It seems that she remains of the view that she was present at the restaurant when the product in question was obtained, making it even more difficult to understand Mr Nolan's change of heart on that issue. There was at one stage to have been an affidavit from a person described as B J Tasman Lynch (see TS 837 at ll 24, 25). He is Ms Lynch's brother. However the affidavit was not read.
805 Mark Robinson was previously the manager at Deception Bay. I have previously discussed his evidence. (See Hooper's claim.) Ms Hooper claims to have received a double stamp at Deception Bay on 16 June although she conceded in cross-examination that she was not sure that it had been obtained during the 1999 competition (TS 453 ll 25-26). I have summarized the evidence relating to Deception Bay and my conclusions concerning it in connection with that claim. There are unsatisfactory aspects to Mr Nolan's evidence. In the circumstances I am not satisfied that he received the disputed stamp during the 1999 competition.
Other witness for Claimant: Amanda Purtle
Restaurant: Forster
Disputed Game Stamp: Single (Park Lane)
Alleged Date of Acquisition: 16 June 1999
806 This claim appears to have been made on behalf of Ms Purtle's daughter, Amanda. Ms Purtle said that on 16 June 1999, between 12, midday and 2.00 pm, she patronized the restaurant at Forster with Amanda, who ordered an apple pie and two boxes of cookies. She received two game stamps with that purchase. One of the stamps was Park Lane. On 19 June they received a Mayfair stamp, enabling Amanda to complete the Mayfair-Park Lane set. They subsequently obtained a redemption envelope and submitted their claim. It was unsuccessful. Ms Purtle asserted that the disputed stamp was obtained during the 1999 competition. She recalled the exact date of acquisition. In a supplementary affidavit she said that her daughter received the Mayfair stamp on 10 July and not 19 June. She said that she recalled this because it was the night that her daughter played ten-pin bowling and the night of the fireworks in Forster. Amanda awakened Ms Purtle when she arrived home to tell her. The claimant attributed the error to a misunderstanding between herself and her solicitor. This may possibly be so. It appears from Amanda's affidavit that the Mayfair stamp was obtained at Taree.
807 In the course of cross-examination Ms Purtle was asked whether they had received another stamp with the Park Lane stamp. She thought that they had received a Fleet Street stamp but said that, "I'm only guessing that it might have been Fleet Street - well, because it was underneath Park Lane and it was a red ticket." By this she meant that on 16 June, the stamps were in the console of her car with the Park Lane stamp on top. She agreed that during the 1998 competition, they had patronized McDonald's and collected stamps. Her son Aaron had two or three stamps on a tray mat. Amanda did not play. The witness had discarded the mat after the competition. Ms Purtle said that the stamps submitted in support of this claim had not come from the 1998 competition.
808 Amanda Maree Louise Purtle was born on 26 March 1982. She recalled patronizing the Forster restaurant between 12, midday and 2.00 pm on 16 June 1999, ordering an apple pie and two boxes of cookies. She received two game stamps, one of which was Park Lane. On 10 July she patronized the Taree restaurant after playing ten-pin bowling. She ordered a large Coke. One of the stamps she received with that product was a Mayfair stamp. On 11 July she obtained a redemption envelope at Forster. She is certain that the stamps upon which she relied were acquired during the 1999 competition. She did not compete in the 1998 competition although she did redeem some instant food prizes. She said that she could not possibly have mixed her 1999 game stamps with others, "... as I had kept them all in my room in a coin bag." She specifically recalled the dates on which she received the Mayfair and Park Lane stamps. She peeled off the Park Lane stamp whilst she was in the drive-through at the Forster restaurant. She thought that she may have received a Fleet Street stamp with the Park Lane stamp. She recalled her receipt of Park Lane because it was "the most important set on the board". Notwithstanding this, it appears from TS 337 ll 10-14 that after receiving the Mayfair stamp, she did not realize she had a completed set until she looked at the tray mat and saw the Park Lane stamp. This suggests that she then had no recollection of having acquired it. She said that she had not collected property stamps in 1998 because she did not think she would have any chance of winning. However she gave property stamps to her friends. She said that she was not sure whether the Park Lane stamp had yellow backing. The Mayfair stamp had yellow backing. She was certain that the Park Lane stamp came off an apple pie box.
809 A single stamp would not normally have been found on an apple pie box. It may have been a single stamp from a roll of spare labels. However Amanda appears to have understood the difference between single and double labels (TS 332-3). She did not suggest that she had received two single labels, although her evidence may be equivocal on the point. A 1998 label could not have had yellow backing. The stamp could not have been supplied with 1998 packaging as apple pies were not promotional lines in 1998. Thus it seems that the only conceivable explanations are that the restaurant was using labels off a 1998 roll in the course of the 1999 competition or single 1998 labels were attached to 1999 pie boxes during the manufacturing process. I have previously indicated that it is highly improbable that the latter event occurred. The evidence from Forster establishes that all 1998 stock was used immediately after the competition. Both Mr and Mrs Smith are confident that labels remaining on the roll of spare 1998 labels were disposed of following the end of the 1998 competition. Thus it seems improbable that a 1998 label could have become affixed to, or supplied with an apple pie box in the course of the 1999 competition. I am not satisfied that the disputed stamp was obtained in the course of the 1999 competition.
Other Witnesses for Claimant: Scott Robinson, Doric Smith
Restaurants: Fairy Meadow, Wollongong, Dapto
Disputed Game Stamp: Double (King's Cross)
Alleged Dates of Acquisition: 19 June, 21 June or 1 July
810 Ms Robinson is the mother of Drewan Scott Robinson who was born on 21 March 1995. Her father is Doric Malcolm Smith. Her husband is Scott Robinson. Mrs Robinson's father and her son obtained a tray mat at the Dapto restaurant on 25 June 1999. On that day they also obtained a McValue Meal comprising a Big Mac, fries and a cup of tea and a McHappy Meal. They received a set of game stamps, one of which was Fenchurch Street Station. On Saturday 19 June Mr & Mrs Robinson and a friend, Ms McPhail, purchased two cherry pies at Fairy Meadow, receiving four game stamps, one of which was of the "station" variety. They cannot remember which it was. Ms McPhail is married to an employee of the respondent who worked at both Fairy Meadow and Wollongong. He considered the Robinsons to be of good repute.
811 On Monday 21 June Mr Robinson obtained a "station" stamp from the Wollongong restaurant. On Thursday 1 July Mr Robinson and Drewan Scott Robinson obtained another station stamp at Dapto, completing the set. Ms Robinson obtained a redemption envelope on 2 July. The claim was unsuccessful. She had not kept a tray mat or game stamps from any previous McDonald's competition. She and her mother, Robyn Jean Smith, on two occasions, received red-backed stamps with purchases made during the 1999 competition.
812 When she submitted her claim Mrs Robinson also submitted a statutory declaration because she knew that there might be problems concerning it. This was because the King's Cross stamp did not have golden arches. Ms Robinson did not recall the colour of the backing on the stamp which she received on 19 June. She said that she received a red food stamp (which is part of exhibit 106) after the media publicity concerning the competition had commenced. It was attached to a cup or a fry box. She did not know the whereabouts of the mates of the King's Cross stamp and the two red food redemption stamps in exhibit 106. She did not receive either of those stamps from her mother or her sister. The packaging in exhibit 10 seemed to be the same as the packaging which she saw during the 1999 competition.
813 Scott Robinson patronized the drive-through section at Wollongong on 21 June 1999 on his way to an SES meeting. He purchased two McValue Meals and received eight game stamps which he put into his SES bag. He gave them to his wife on the night of 28 June 1999, that is a week later. On Thursday, 1 July he and his son patronized the drive-through section at Dapto after visiting the doctor. They ordered one McValue Meal and one Happy Meal and received four stamps. They placed them on the tray mat upon arriving home and realized that they had completed the railway station set. Mr Robinson was certain that his stamps were obtained in the course of the 1999 competition. He could recall "on more than one occasion receiving red-backed stamps attached to packaging" after the media attention concerning the competition. It was possible that the red stamps which he received were those in exhibit 106. His subsequent evidence suggested that they were not. He said that he had not kept them. He did not compete in the 1998 competition. Although he purchased McDonald's products in 1998, he did not "actively" collect game stamps.
814 He recalled receiving the tray mat from his father-in-law, Doric Smith on 25 June with two stamps on it. He could not remember which they were. One of these would have been a railway station. At this time, he already had another station stamp in his bag. About an hour-and-a-half to two hours after receiving the stamp on 1 July, he heard that there was some dispute concerning the competition. He was unable to identify the packaging in exhibit 10 as being similar to that which he had received during the competition.
815 Mr Doric Malcolm Smith said that he and his grandson patronized the Dapto restaurant on 25 June. He collected a tray mat and also received game stamps, including one for Fenchurch Street Station. He peeled off the back of the stamp, and his grandson affixed it to the mat. Later that day, when Mr Scott Robinson picked up his son, the boy took the tray mat with him. Mr Smith did not compete in the 1998 competition.
816 There is no reason to doubt Mr Smith's evidence that he obtained the Fenchurch Street Station stamp from Dapto on or about 25 June. That means that the King's Cross stamp must have come from either Wollongong (obtained by Mr Robinson), Fairy Meadow (obtained by Mr & Mrs Robinson with cherry pies) or from Dapto (obtained by Mr Robinson and his son on 1 July). As cherry pies were not part of the 1998 promotion, packaging received with them must have been 1999 packaging. As I have previously explained, there is little prospect that a 1998 label could have been attached to 1999 packaging. The stamp is a double and so could not have been obtained from a roll of spare labels. It thus seems highly unlikely that the King's Cross stamp could have been obtained at Fairy Meadow. This means that it must either have been obtained by Mr Robinson at Wollongong or by Mr Robinson and his son at Dapto.
817 According to Mr Robinson, he went home from Dapto on 1 July and added the station stamp to the tray mat, thus producing a set of four. I find it strange that he should not have been able to recall which stamp it was that he used to complete the set, given the consequences of his having done so. This view is reinforced by the fact that an hour or two later, he heard that there was some difficulty concerning the competition. One would expect that he would have made an effort to keep fresh in his mind details surrounding his participation. Even if, at that stage, he was unable to remember the actual property in question, one would have expected him to be able to remember, for example, the position which it occupied on the coupon. Further, Mrs Robinson had apparently affixed two of the other stamps to the mat. I would have expected her to have some recollection of the property which was outstanding. I do not exclude the possibility that they are being truthful when they say that they do not know, but it does seem a little unlikely.
818 To this must be added the curiosity concerning their evidence about red-backed game stamps. They asserted that they had frequently received such stamps. Clearly, the King's Cross stamp would have had a red back. They also have two red-backed food redemption stamps. Their evidence suggests that these were not two of a pair, nor was either the mate of the King's Cross stamp. No explanation is given as to where the other three red stamps might be. The absence of "mates" is curious in view of the relatively large number of stamps which were kept. (See exhibit 105 and 106.) I suspect that Mr & Mrs Robinson were exploiting the "red stamp" issue because they perceived it to be a basis for attack upon the system adopted by McDonald's to protect the integrity of the 1999 competition. Although I have considerable reservations about the evidence of Mr & Mrs Robinson, I do not reject it out of hand. It must be considered in the context of the relevant restaurant evidence.
819 The evidence from Dapto appears to exclude the possibility of 1998 stock in the restaurant in 1999. Out of completeness I also observe that Mr Eldridge disposed of the remainder of the roll of spare labels for the 1998 competition. The evidence from Fairy Meadow similarly establishes that no 1998 promotional stock was in the restaurant during the 1999 competition, as does the evidence from Wollongong.
820 Ms Robinson thought that the packaging in exhibit 10 was similar to that received by her during the 1999 competition. Mr Robinson was not sure. I have given my reasons for concluding that it is unlikely that 1999 packaging could bear 1998 stamps. I have also concluded that if a carton of 1998 packaging were released in a restaurant, the staff would probably notice. This is a double stamp and cannot have come from a roll of spare labels. Given these matters and my criticisms of the claimant's evidence, including the fact that neither Mr Robinson nor Mrs Robinson actually recalls receiving the disputed stamp, I am not satisfied on the balance of probabilities that it was received by either of them, or by anybody else in the course of the 1999 competition.
JAMIE ALEXANDER SILK
Other Witnesses for Claimant: Nil
Restaurant: Mackay (City Express)
Disputed Game Stamp: Double (Park Lane)
Alleged Date of Acquisition: 10 June 1999
821 From November 1996 until December 1998 Mr Silk was living in England where he rarely purchased McDonald's products. He returned to Australia and, on 27 January 1999, started work at the "Electric Dreams" amusement arcade in Victoria Street, Mackay. He would open the restaurant at about 9.00 am from Monday to Thursday and on Fridays and Saturdays, he would start work early in the afternoon. On most morning shifts he would purchase breakfast at the McDonald's restaurant located a couple of doors down the road. He would usually purchase a muffin, hash brown and an orange juice. The hash brown bag and the orange juice cup bore McMatch & Win stamps. On evening shifts he would purchase a large Burger Meal with large fries and a large Diet Coke. He would eat McDonald's on one of the two nights each week on which he worked.
822 He recalls the 1999 competition. He obtained a tray mat. Every stamp which he collected had yellow backing and yellow arches on the front. When he received a duplicate stamp, he would place it in a small plastic coin bag in his office. This was a communal collecting point which he maintained with Scott Chambers, another employee. He kept his tray mat (with stamps affixed to it) in a carry bag. He recalled obtaining the Mayfair stamp about one week after the competition started. He had purchased a muffin, hash brown and an orange juice. The stamp had a yellow back and golden arches. On 10 June 1999 he did not have breakfast because his employer was away. At about 11.00 am, he went to the Mackay restaurant and purchased a meal consisting of one Big Mac, one large fries and one large Diet Coke. One of the stamps on the large fry box was a Park Lane stamp. He obtained a redemption envelope. His claim was unsuccessful.
823 Exhibit 72 is Mr Silk's claim coupon. The Park Lane stamp is in very bad condition, hardly accurately described by his suggestion that the bottom is slightly faded. (See par 27 of his affidavit.) He agreed that the packaging in exhibit 10 was similar to that on which he had received his stamps. All had yellow backing. He understood the Park Lane stamp to have come from a large fry box, although it could have come from a drink. It was certainly one part of a double label. He did not know the identity of the other stamp. The Park Lane stamp is in much the same condition in which he received it. He spoke to a lady called Fiona Miller at the Mackay restaurant shortly after receiving the stamp. He denied that she said anything about the stamp being faded.
824 The Mackay restaurant is actually known as the City Express restaurant. The evidence from the restaurant indicates that no 1998 packaging was in the restaurant following the end of the 1998 competition, it having been, by then, then identified and transferred to another restaurant. It therefore seems unlikely that there was any 1998 packaging in the restaurant in the course of the 1999 competition. Mr Silk claimed to have received 1999 packaging. It is unlikely that a 1998 double stamp could have been attached to such packaging. Neither Ms Thomson nor Mr Gilmour has seen the roll of spare labels since the end of the 1998 competition. It is not relevant for present purposes. For reasons previously given, I consider it unlikely that a carton of 1998 packaging could have been distributed in 1999 without the staff becoming aware of it.
825 Ms Miller said that she had a conversation with a man who was clearly Mr Silk. He showed her a Park Lane stamp and drew her attention to the fact that it was faded. She asked how it had become faded. He replied that he had found it at the bottom of his car. I see no reason to reject Ms Miller's evidence. Mr Silk's statement to her that he had found the stamp at the bottom of his car suggests strongly that he could not account for its provenance with any certainty. I certainly could not accept his evidence as to receiving it in 1999. I am not satisfied on the balance of probabilities that the disputed stamp was received in the course of the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Browns Plains
Disputed Game Stamp: Double (King's Cross)
Alleged Date of Acquisition: 16 July 1999
826 Mr Stevens obtained a McMatch & Win tray mat at the Browns Plains restaurant shortly after the beginning of the 1999 competition. On 16 July, at about 12.40 pm, at that restaurant, he ordered a large Big Mac Meal, consisting of a Big Mac burger, large fries and a large Coke. He received four game stamps, one of which was King's Cross. Its back was red. This enabled him to complete the Marylebone Street, Fenchurch Street, Liverpool Street, King's Cross Station property set. On 17 July he went to the Browns Plains restaurant and was handed a redemption envelope. His claim was unsuccessful. He said that he had not submitted any 1998 game stamps in his claim as he did not participate in that competition, nor had he swapped stamps with anybody.
827 It seems from his oral evidence that the King's Cross Station was the last of the set to be obtained and that he obtained them all from Browns Plains. By the time he submitted them, he was aware that one had a red back and the others, yellow backs. He was not sure whether he knew about the controversy concerning the competition before he submitted his claim. He could not recall whether he had seen a current affairs programme dealing with the problem prior to so doing. He was shown exhibit 10. He could not be sure that it was the same as the packaging with which he received his stamps. For some reason, he submitted a statutory declaration with his claim. Yet he asserted that he could not see any reason why his claim should be controversial. The cross-examination at TS 477-8 discloses an odd mixture of concern that the stamp might be controversial and that it might be lost in the mail. The curiosity of this mixture suggests a lack of frankness.
828 The evidence from Browns Plains indicates that there was no 1998 packaging in the restaurant during the 1999 competition. For the sake of completeness I should say that Mr Grady said that he had disposed of the roll of spare 1998 labels. By 16 July, given the state of publicity concerning the competition, I would have expected virtually everybody in Australia to have been aware of the general nature of the problem which the respondent was experiencing. I find it a little difficult to accept that Mr Stevens would not have realized that the difference in colour of the backing on the stamps was of some significance. Further, given the publicity, it seems unlikely that restaurant staff would not have noticed a red label on a fry box or cup at the time of supplying it, let alone the distribution of 1998 packaging. It is most unlikely that the stamp came with 1999 packaging.
829 I am not satisfied that Mr Stevens received the disputed stamp in the course of the 1999 competition.
Other witness for Claimant: Kerrie-Anne Dobson
Restaurant: Annerley, Springwood
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Early in the competition
830 Mr Taylor recalled the commencement of the 1999 competition. At an early stage, he purchased a cherry pie and medium shake, receiving stamps with red backs with his purchases. Even if his cup bore a red stamp, it is difficult to see how a pie box could bear such a stamp as pies were not promotional items in 1998. Later in his evidence (TS 814-5) he said that he had received only one red stamp. One of the stamps was Trafalgar Square. On 24 July 1999 he received another stamp at the Coolangatta restaurant which stamp enabled him to complete the Trafalgar Square, Fleet Street and The Strand set. He subsequently obtained a redemption envelope and submitted his claim on or about 30 July 1999. It was rejected. He did not enter the 1998 competition. During the 1999 competition he kept all stamps in the console of his car. He recalls that he cleaned the car about a week after the commencement of the competition, at which time he threw away rubbish. His fiancee was with him at the time he received the Trafalgar Square stamp. They received a double stamp and a single stamp. By 24 July he had six, seven or eight stamps. He only kept those which "seemed relevant".
831 On 24 July, he purchased a breakfast which included a hash brown with a Bacon & Egg McMuffin and coffee. He also purchased a breakfast with a Sausage & Egg McMuffin. He does not recall how many stamps he received on that occasion, but they included The Strand and Fleet Street. By this time he had heard that there was a controversy surrounding the competition. He knew that part of the controversy concerned red stamps which the respondent alleged were from the 1998 competition. He could not recall whether the cups in exhibit 10 were similar to those which he saw during the competition. He also said that he had not peeled the Trafalgar Square stamp. His fiancee had done so. He ate at McDonald's during 1998, purchasing items with stamps attached. He denied that he had kept any stamps. He said, however, that he would open them to see if he had won an "instant" prize. As far as I can see Mr Taylor did not identify the restaurant at which he obtained his Trafalgar Square stamp.
832 Mr Taylor's fiancee, Kerrie-Anne Dobson said that she recalled visiting the drive-through facility at the Springwood restaurant with Mr Taylor. On another occasion, whilst going to visit a friend at the Princess Alexandra Hospital, they patronized a drive-through facility in that vicinity, presumably the Annerley restaurant. She was with him when he received the two stamps which completed the set. This was at breakfast. She has two children who live with them, her son Ryan, aged fourteen and her daughter Elise, aged twelve. Mr Taylor has lived with them since February 1998. She thought that her children had previously received instant food prizes and may have gone to McDonald's with her during the winter of 1999. She could not actually recall their having done so. She said that her children were of an age at which they may well have gone to McDonald's by themselves and collected stamps. It was suggested to her that they may also have done so during 1998. She did not think that they would have gone there without her in 1998. There was an air of unreality about this aspect of her evidence. It sounded much more like wishful thinking than an accurate reflection of her beliefs. The children did not give evidence. Ms Dobson also said in cross-examination that prior to their prize claim being rejected, they had consulted the Department of Fair Trading.
833 I have already summarized the Annerley and Springwood evidence in connection with the Leishman and Denniss claims. I keep these claims in mind in assessing Mr Taylor's claim. They offer no support for Mr Taylor's claim. The absence of evidence as to the actual place and time of acquisition of the disputed stamp creates concern. The assertion by Mr Taylor that he had obtained red stamps early in the competition and his subsequent statement that there was only one such stamp is also of some significance. I have also expressed some doubts as to Ms Dobson's evidence. In addition, there is the failure to call her children. I am not satisfied that the disputed stamp was obtained during the 1999 competition.
Other Witnesses for Claimant: Nil
Restaurant: Loganholme
Disputed Game Stamp: Double (Marlborough Street)
Alleged Date of Acquisition: The first two to three weeks of the promotion and before 25 June 1999
834 Ms Troutman recalled the commencement of the 1999 competition. She obtained a tray mat at the Loganholme restaurant. In the first two or three weeks of the promotion, she patronized the drive-through facility at that restaurant, ordering a large Cheeseburger Meal, consisting of a cheeseburger, large fries and a large Coke. She received four game stamps with the purchase, including the disputed stamp. She cannot remember the colour of its back. It enabled her to complete the Bow Street, Marlborough Street and Vine Street set. On 14 July she presented her tray mat at the restaurant and obtained a redemption envelope. Her claim was unsuccessful. Exhibit 38 contains the redemption envelope. Exhibit 39 is her tray mat which bears a 1998 King's Cross stamp. This is the mate of the Marlborough Street stamp. Thus, on the day in question, she must have received one 1998 double label and one 1999 double label as there are no other 1998 stamps on the tray mat. This inference assumes that she affixed all stamps to the tray mat.
835 She said:
I am certain I did not use last year's game stamp as I have moved house and whatever was lying around was thrown away in the bin. I am also certain that I did not use last year's game stamps as I did not play the game and the only thing I collected was the food.
836 Whether or not a claimant participated in the 1998 competition is relevant only to the extent that it supports his or her claim that a disputed stamp was obtained during the 1999 competition. A denial of "playing the game" in 1998 became something of a mantra in the claimants' evidence. Such a denial had different meanings for different witnesses. In Ms Troutman's case, her use of the expression did not mean that she had not received or used stamps in 1998. She had received and used food redemption stamps and therefore she had probably also received Monopoly stamps. She meant only that she had not consciously collected those stamps.
837 She is married with one young child. She identified the fry boxes in exhibit 10 as similar to that on which she obtained the Marlborough Street stamp. The Marlborough Street and King's Cross stamps are in poor condition because she dropped them into her food. Ms Troutman, at one stage, chose to opt out of these proceedings, but she subsequently withdrew that election. She said that she opted out because she thought that she would not have the time or the opportunity to participate in proceedings. She unexpectedly found that she was able to do so and re-entered the class.
838 The restaurant evidence indicates that there was no 1998 packaging in the restaurant during the 1999 competition. At the end of that competition a conscious effort was made to use up remaining stock with the stamps removed. There was a full field inspection in September 1998 which involved the usual preparation. Ms Davey recalls disposing of the roll of spare 1998 labels, although that is not presently relevant. Ms Troutman did not claim to have received the Marlborough Street stamp with 1998 packaging. She said that the packaging in exhibit 10 was similar to that which she had received. The only possible explanation is that 1998 stamps were affixed to 1999 packaging in the course of manufacture. I have already indicated that I consider that to be highly unlikely. Ms Troutman's explanation for having opted out of the proceedings is a little unconvincing. After all, not all class members have ventilated their claims in proceedings to date. She could well have indicated that she was not available to participate in the proceedings at the present time but remained in the class. One other possible explanation for her withdrawing is uncertainty as to the validity of her claim. I am not satisfied that the disputed stamp was received in the course of the 1999 competition.
JOSEPH TERENCE WAYNE WHITTAKER
Other witness for Claimant: Norma Kay Whittaker
Restaurants: Newmarket, Mt Gravatt
Disputed Game Stamp: Single (Trafalgar Square)
Alleged Date of Acquisition: Between 10 - 25 June 1999
839 Mr Whittaker recalled the commencement of the 1999 competition. On 25 June, he obtained a tray mat at the Newmarket restaurant. Some time between 10 June and 25 June he patronized the drive-through facility at Newmarket, ordering a McMuffin Breakfast Value Meal. He received a game stamp with a hash brown. The stamp was for Trafalgar Square. This enabled him to complete the Trafalgar Square, Fleet Street and The Strand set. About 5.30 pm on 25 June he presented his tray mat to the restaurant manager and obtained a redemption envelope. His claim was unsuccessful. He could guarantee that he had not used a 1998 stamp as he cleans out his car regularly and did not compete in the 1998 competition. He has not swapped stamps with anyone else. His children have all left home.
840 In his oral evidence he said that he could not be sure that he had personally received the Trafalgar Square stamp. He may have received it from his wife. On one view of it, that might be thought to be inconsistent with his assertion that he had not "swapped" stamps. However it may be that he would not describe a transfer between husband and wife as a "swap". He considered that the hash brown bag in exhibit 10 was similar to that on which he had received his stamp. He probably meant only that the bag which he received was a "light envelope". He thought that it "had a yellow sticker" on the outside. He did not know whether the Trafalgar Square stamp had yellow backing but thought it probably did. He kept his stamps in the console of his vehicle. He did not know in which order he had received the winning set. After obtaining the tray mat, he would affix the stamps to it whilst in the vehicle. His wife also stored stamps in her car. They would also be affixed to the tray mat. He thought that the disputed stamp was his rather than his wife's because it appeared to be discoloured. He carried his coffee mug in the console of his car. That may have caused the discolouration.
841 Ms Whittaker recalled the commencement of the 1999 competition. Throughout the competition, she patronized the drive-through facilities at Newmarket and Mt Gravatt about three times per week. She would purchase a Breakfast Meal which included a hash brown, bearing one game stamp. She removed the game stamps and kept them in the console of her car which had been purchased in May 1999. She recalled the occasion on which her husband matched the three properties in the set. He had gone to both cars, presumably to collect stamps. When he returned to the house, he was very excited. He showed her the winning property set. All of the stamps in the console of her car were from the 1999 competition. She was not aware of a similar competition having been conducted in 1998. Ms Whittaker's affidavit was sworn on 29 September 1999 whilst her husband's was sworn on 17 August. She could not identify the packaging in exhibit 10 as being similar to that which she received during the competition, nor could she say whether the stamps had yellow backing.
842 I see no reason to reject Mrs Whittaker's evidence that she obtained stamps from Newmarket and Mt Gravatt during the course of the 1999 competition and that her car was a 1999 model. The evidence from Mt Gravatt establishes that there was no 1998 stock in the restaurant during the 1999 competition. Mr Slennett-Roberts, the owner-operator, said that he had not seen the roll of spare labels after the end of the 1998 competition. Mr Mourilyan said that he had understood, at the end of the 1998 competition, that the manager was going to dispose of it and saw him walking away with it, although he did not actually see it discarded. This evidence makes it most unlikely that the roll was still in the restaurant during the 1999 competition. The Newmarket restaurant was relocated just before the commencement of the 1999 competition. Stock had been run down to facilitate the relocation. It is therefore reasonable to infer that any 1998 stock would have been identified at that time. Other evidence indicates that there was no 1998 stock in the restaurant during the 1999 competition. The fact that all stock was identified and a decision made as to whether to take it to the new restaurant makes it quite unlikely that the 1998 roll of spare labels was in the restaurant during the 1999 competition. I also keep in mind the fact that Mr Leishman named this restaurant as a possible source of one or more of his stamps.
843 Given the change in Mr Whittaker's evidence concerning acquisition of the stamp, it would be very difficult to accept at face value his assertion that it was obtained in the course of the 1999 competition, particularly having regard to the restaurant evidence. In the circumstances I am not satisfied that the stamp was obtained during the 1999 competition.
ORDERS
844 I conclude that all of the present claimants must fail in their claims. It is not necessary for me to address the various legal questions which may otherwise have arisen. Indeed, it would be difficult, and perhaps inappropriate to do so in the absence of findings of fact capable of supporting one or other of the claims. In any event, I understand that as a result of a decision of the Full Court on appeal from an interlocutory decision, the more substantial legal issues have been resolved, subject to the possibility of an application to the High Court for special leave to appeal. Upon publication of these reasons, I will adjourn the matter in order to enable the parties to consider them. I will subsequently hear formal applications for further findings of fact, at which time I will also hear submissions as to orders and costs.
I certify that the preceding eight hundred and thirty-nine (839) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. |
Associate:
Dated: 9 March 2001
Counsel for the Applicant: |
At various times the applicant was represented by the following counsel: Mr K G Bennett Mr J N Gallagher SC Mr Griffin QC Mr S S W Couper QC Mr D Gordon Ms D A Skennar |
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Solicitor for the Applicant: |
Shine Roche McGowan |
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Counsel for the Respondent: |
At various times the respondent was represented by the following counsel: Mr P D M McMurdo QC Mr M Tobias QC Mr D Robinson |
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Solicitor for the Respondent: |
Baker & McKenzie |
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Dates of Hearing: |
1-October 1999; 4-8 October 1999; 11-15 October 1999; 20-22 October 1999; 26-29 October 1999; 11 February 2000; 21-25 February 2000; 28 February - 3 March 2000; 6-9 March 2000; 13-17 March 2000; 22-24 March 2000; 22-26 May 2000; 29 May - 2 June 2000; 7 July 2000; 17-20 July 2000 |
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Date of Judgment: |
9 March 2001 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2001/209.html