The attempt by KFC to overturn an $8 million damages decision in favour of a young girl who contracted severe salmonella poisoning from a chicken twister has suffered a setback, with a Supreme Court judge criticising the company's grounds for appeal.
Monika Samaan became seriously ill after eating the twister at the Villawood KFC in 2005 when she was seven years old, suffering brain damage that has left her confined to a wheelchair and unable to speak.
After an extended court battle, KFC was ordered to pay $8 million to Monika's family to assist with the intensive day-to-day care she will require for the rest of her life.
The fast-food giant elected to appeal the decision, including seeking an order that the Samaan family pay its legal costs - likely to amount to hundreds of thousands of dollars.
But the appeal hit a stumbling block in the NSW Supreme Court today, with Justice Clifton Hoeben ordering KFC's lawyers to rewrite their grounds of appeal because they were simply a restatement of the company's failed argument in the initial court hearing.
"They don't come within a bull's roar of complying with the rules [relating to appeals]," Justice Hoeben said.
"They really read as submissions that should have been or probably were made at trial ... there's hardly any law there."
KFC denies that the Samaan family purchased a chicken twister from the Villawood store on the day in question, and thus maintains that it was not responsible for her infection. This argument forms the backbone of the appeal.
Lawyers for the Samaan family say this argument was effectively rejected by the hearing judge, Justice Stephen Rothman, in April this year.
Generally, a successful appeal will be based either on fresh evidence, a demonstration that a judge erred on a matter of law, or proof that a hearing was not conducted in accordance with the proper administration of justice.