RESTAURANT EVIDENCE
210 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.
211 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.
212 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.
213 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.
214 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.
215 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.
216 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.
217 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.
218 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.
219 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.
220 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.
221 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.
222 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.
223 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.
224 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.
225 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.
226 I turn to the specific restaurants.