Australian Competition and Consumer Commission v Snowdale Holdings Pty Ltd - [2016] FCA 541

FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Snowdale Holdings Pty Ltd [2016] FCA 541

File number(s): WAD 462 of 2013

Judge(s): SIOPIS J

Date of judgment: 18 May 2016

Catchwords: CONSUMER LAW – eggs were sold and marketed as “free range eggs” – hens housed in very large sheds with pop holes – whether the conditions in which the laying hens were found inhibited the ability and propensity of the hens to move around freely on an open range – whether most hens moved around freely on an open range on most days – whether the conduct of the respondent was misleading or deceptive or likely to mislead or deceive in describing the eggs laid by hens farmed in the prevailing conditions as “free range eggs” – whether the respondent contravened ss 18, 29 and 33 of the Australian Consumer Law.

Legislation:
Australian Consumer Law ss 18, 18(1), 29(1)(a), 33, 219(2) (Sch 2 of the Competition and Consumer Act 2010 (Cth))

Competition and Consumer Act 2010 (Cth) ss 155(1)(b), 155(1)(c)

Evidence Act 1995 (Cth) s 140

Trade Practices Act 1974 (Cth) ss 55, 53(a)

Cases cited:
Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435

Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45

CPA Australia Ltd v Dunn (2007) 74 IPR 495

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73

Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] FCA 665

Briginshaw v Briginshaw (1938) 60 CLR 336

Australian Competition and Consumer Commission v C.I. & Co Pty Ltd [2010] FCA 1511

Australian Competition and Consumer Commission v Bruhn [2012] FCA 959

Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028

Date of hearing: 8-10, 13-17, 20, 22, 24 April and 20 May 2015

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 539

Counsel for the Applicant: Ms G Archer SC and Mr W Keane

Solicitor for the Applicant: Norton Rose Fulbright

Counsel for the Respondent: Mr P McGowan

Solicitor for the Respondent: Hotchkin Hanly Lawyers

ORDERS

WAD 462 of 2013

BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:
SNOWDALE HOLDINGS PTY LTD (ACN 009 372 534)

Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

18 may 2016

THE COURT ORDERS THAT:
1.The application is adjourned to a date to be fixed for the making of orders and fixing of penalties attendant upon the findings made in these reasons for judgment.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SIOPIS J:

Snowdale Holdings Pty Ltd (Snowdale), the respondent, carries on, and during the period 8 April 2011 to 9 December 2013 carried on, the business in Western Australia of producing eggs from laying hens on a very large scale.
At various times during the period 8 April 2011 to 9 December 2013 (the relevant period), Snowdale packed eggs that it produced at two of its egg production farms into cartons containing labels which used the term “free range eggs” to describe the eggs contained in the cartons. Snowdale sold those cartons of eggs to retailers for sale to their customers under the brand names: Swan Valley Egg Farm, Swan Valley Egg Co, Carabooda Lovingly Hand Packed free range eggs, free range eggs by Ellah, Wanneroo Free Range Eggs and Mega Free Range Eggs. Free range eggs are sold at a premium price.
The retailers included well-known supermarket chains, such as Woolworths and Coles. The retailers placed the cartons of eggs supplied by Snowdale on their supermarket shelves and in that way the labels on the cartons became visible to consumers. In addition to the words “free range eggs”, many of the labels contained other words and some also contained pictures. I will refer in detail to the labels used on and in the cartons which are the subject of complaint in this case later in these reasons.
At times during the relevant period, Snowdale also operated a website which it used to market and advertise the eggs under the brand name “free range eggs by Ellah”. Snowdale also published a poster during the relevant period which advertised its Swan Valley Egg Co eggs as free range eggs.
The eggs which Snowdale sold and promoted as free range eggs during the relevant period came from laying hens that were housed in four industrial sized structures which were referred to during the proceeding as “barns” or “sheds” located on a property at Carabooda (referred to during the proceeding as the “Carabooda farm”); and, for a significant part of that period, also from a shed located on a property in the Swan Valley (referred to as the “Swan Valley farm”).
Each of the four sheds at the Carabooda farm was 96.4 m long and 13.6 m wide. The shed at the Swan Valley farm was 82.8 m long and 11 m wide.
Each of the sheds at Carabooda had the capacity to house about 18,000 laying hens, whilst the shed at the Swan Valley farm had the capacity to house about 12,740 laying hens. Adjacent to each of the sheds was a vacant area of land which was fenced. There were openings on one side, and later, at Carabooda, on both sides, of the sheds which gave the hens a means of access to the vacant areas of land adjacent to each of the sheds. These openings were, and are, called “pop holes” and the purpose of the pop holes was to permit hens to use the pop holes as a means of exiting the shed to access the adjacent area of land, called the “range” or the “open range”. The number of pop holes at the sheds at Carabooda increased during the period in question. I will deal with the farming conditions in more detail later in the reasons.
The Australian Competition and Consumer Commission (ACCC), the applicant, claims that in, during the relevant period, selling, marketing and advertising the eggs produced under the farming conditions which prevailed in relation to the five sheds referred to above, as “free range eggs”, Snowdale engaged in conduct which was misleading or deceptive, or likely to mislead or deceive, and so contravened the Australian Consumer Law (the ACL) in Sch 2 of the Competition and Consumer Act 2010 (Cth).
In short, the ACCC alleged that, during the relevant period, the impugned farming conditions were such as to restrict the ability and propensity of the hens to leave the sheds and access the open ranges, so that, in respect of each shed, most hens did not actually leave the shed on most days. In those circumstances, said the ACCC, it amounted to misleading or deceptive conduct to represent that the eggs produced in those farming conditions were “free range eggs”.
The respondent denies the claim.
I set out below a number of background facts.
BACKGROUND
Mr Barry Cocking is, and was, at all material times, a director of Snowdale. Mr Cocking was, during the relevant period, responsible for the operation of the egg production business carried on by Snowdale. During the relevant period, Snowdale sold approximately 71% of the eggs it produced as free range eggs, and charged a higher price for those eggs than if they had been sold as “barn laid” or “cage free” eggs. Until November 2011, when they moved to Guildford, Mr Barry Cocking and his wife, Mrs Chimene Cocking, lived in a house located at the Swan Valley farm.
Ms Ellah Cocking is the daughter of Mr and Mrs Cocking. Ms Ellah Cocking was assigned some management responsibility in respect of the free range eggs production business carried on at the Swan Valley farm from sometime in early 2011. As I will discuss in greater detail later in these reasons, Ms Ellah Cocking featured strongly in Snowdale’s strategy to market its “free range eggs by Ellah” brand of eggs. The “Ellah” referred to in the brand name “free range eggs by Ellah” is a reference to Ms Ellah Cocking.
The process used to produce the eggs sold as free range eggs in the sheds on the two farms referred to above was, in outline, as follows.
The birds which ultimately became the laying hens housed in the relevant sheds at Carabooda and Swan Valley were bought by Snowdale as day old chicks. From November 2011, Snowdale bought the day old chicks from the Altona Hatchery, which delivered them to the Carabooda farm. Mr Dennis Green was the person at Altona Hatchery who, at Mr Cocking’s request, dealt with Mr Cocking in relation to the sale of the day old chicks.
The day old chicks were then raised in two rearing sheds at Carabooda for about 16 weeks. A flock of the birds was then transferred to one of the free range sheds at Swan Valley and Carabooda, where they were trained for a further period of four to five weeks. The training included conditioning the hens to use the food, water and nesting facilities within each shed. The nesting facilities were provided by a nesting box which was part of a continuous structure which ran down the middle of the shed for almost the entire length of the shed. The hens would lay the eggs in the nesting boxes and the eggs would then be conveyed to a collection point. The floor of each of the sheds which housed the hens was slatted so that the manure produced by the hens would pass through the slats on to a conveyor belt beneath the slatted floor. The food for the hens was provided in the shed using a feeding system which Mr Cocking described as a “chain feeding” system, which was essentially a chain of small pans in which the food was placed and then circulated around the shed. There was also within the shed a system which provided drinking water for the hens, referred to as water lines, which comprised pipes hung from the roof stretching horizontally throughout the length of the shed. Attached to these pipes at regular intervals were further downward pipes at the end of which was an opening referred to as a “nipple”, which the birds would access in order to drink the water. The shed was temperature controlled. It had cooling fans and foggers which produced a fine mist of water through the shed to cool it down.
When the flock of laying hens in a shed had reached the end of their laying lives, they were “euthanized”. The sheds were then cleaned out, and a new flock of young birds was taken from the rearing sheds and placed in the shed to replace the previous flock.
During the relevant period, there was in operation the Code of Practice for Poultry in Western Australia (Department of Local Government and Regional Development, March 2003) (the Model Code). The Model Code states:
2.1.1Egg production
The three basic housing systems for egg production are defined below. It is recognised that individual marketing definitions for table eggs may require more specific descriptions for the housing systems.
2.1.1.1Cage systems
Birds in cage systems are continuously housed in cages within a shed.
2.1.1.2Barn Systems (Non-cage Systems)
Birds in barn systems are free to roam within a shed which may have more than one level. The floor may be based on litter and/or other material such as slats or wire mesh.
2.1.1.3Free-Range Systems (Non-cage Systems)
Birds in free-range systems are housed in sheds and have access to an outdoor range.
That Model Code included specifications in relation to farming practices including guidelines for stocking densities and pop hole availability for free range systems as defined by the Model Code. Thus, the Model Code provided for a stocking density inside the sheds of up to 30 kg per square metre of stocking space. On the basis that an adult laying hen weighed about 2.1 kg, that resulted in a density of just under 15 birds per square metre. The Model Code also provided for a standard of 500 hens in a shed per metre of pop hole.
In April 2011, at the beginning of the relevant period, Snowdale was producing eggs sold and marketed as free range eggs from sheds 5, 6, 7 and 8 at Carabooda. There were other sheds on the farm, but they were not used for the production of eggs marketed as free range eggs. As mentioned, each of the sheds 5, 6, 7 and 8 was 96.4 m long and 13.6 m wide and had the capacity to house 18,000 laying hens each. Until July 2013, there were pop holes located along the south side of each of sheds 5, 6, 7 and 8 but, after July 2013, the number of pop holes at those sheds increased. I will deal with the farming conditions at those sheds in greater detail later in these reasons.
In April 2011, the Swan Valley farm shed was 82.8 m long and 11 m wide, having an internal area of approximately 910 m². This shed was referred to as shed 1 at the Swan Valley farm. At that time, there were 10 pop holes located in the northern side of the shed. Also, in April 2011, there was a large undivided area of land immediately adjacent to the north of that shed which had not been divided into separate areas by fencing. The pop holes in shed 1 at Swan Valley were immediately adjacent to this large undivided area of land. Subsequently, fences were installed and three ranges were created, referred to as range A, range B and range C. In April 2011, the shed was empty and undergoing renovations. The shed was used later in the year to house hens whose eggs were sold as free range eggs. I will deal with the farming conditions in relation to the Swan Valley shed in greater detail later in these reasons.
At some time in 2011, Snowdale commenced aggregating at the Swan Valley farm, eggs which were produced at the four sheds at Carabooda and shed 1 at the Swan Valley farm. The eggs were packed into cartons. Snowdale sold those cartons of eggs at a premium price to retailers for sale to their customers under the brand names: Swan Valley Egg Farm, Swan Valley Egg Co, Carabooda Lovingly Hand Packed free range eggs, free range eggs by Ellah, Wanneroo Free Range Eggs and Mega Free Range Eggs. Free range eggs were sold at a premium price by retailers to their customers.
In packing the eggs into the cartons, Snowdale did not have regard to the origin of the eggs. Thus, for example, eggs from hens housed in the Carabooda sheds were included among the eggs packed in the cartons labelled “free range eggs by Ellah”.
In September 2011, two environmental health officers, from the City of Wanneroo, Mr Phillip Wesley and Mr Wayne Harris visited the Carabooda farm as a consequence of an odour complaint from market gardeners. The two officers had a conversation with a person they understood to be the manager of the farm about the propensity of the hens to exit the sheds at Carabooda and enter the open ranges adjacent to the sheds. I will deal with this conversation later in these reasons.
On 28 February 2012, Mr Cocking sent an email to councillors of the City of Swan in support of an application for retrospective approval to increase the number of hens that Snowdale would be permitted to keep for egg production at the Swan Valley farm from 24,000 to 80,000 hens. In the email, Mr Cocking advised that the Swan Valley farm had been operating at full capacity of 80,000 hens.
In July 2012, Mr Peter Groot became the farm manager at Carabooda. His employment ended in February 2015. During his tenure as farm manager at Carabooda, Mr Groot provided weekly reports by email to Mr Cocking. These reports included progress reports on the chicks in the rearing sheds and egg production reports in respect of the production sheds, including sheds 5, 6, 7 and 8. Mr Groot also made observations in those reports about other developments at the Carabooda farm.
On 28 March 2013, a substantiation notice to give information and produce documents was issued by the ACCC to Snowdale under s 219(2) of the ACL. The substantiation notice asked a number of specific questions about the farming conditions relating to the production of the eggs which Snowdale sold as free range eggs. Among the questions asked was a question about stocking density in the free range sheds. The question, and the answer given by Mr Cocking on behalf of Snowdale in its response dated 10 May 2013, was as follows:
b.In relation to each of the free range chicken sheds and associated yard areas identified in response to questions 3.a. above state:
i.the highest internal stocking densities since 1 January 2013 and describe how those density figures have been calculated, including the number and average weight of adult hens housing each shed at that time.
Response
14 birds per square metre
Density calculated using floor area and bird weight (approx 2 kg per bird)
The calculation method for the highest internal stocking density used by Mr Cocking in the response to the substantiation notice, therefore, indicated that the highest internal stocking density since January 2013 for each of sheds 5, 6, 7 and 8 was calculated on the basis of a flock size of approximately 18,000 hens.
Snowdale’s response also stated that the internal area of each of the sheds 5, 6 and 7 was 1,311 m². However, the internal area of shed 8 was said to be 1,088 m². I observe, however, that the ACCC subsequently pleaded, and Snowdale subsequently admitted, that the internal area of shed 8 was also 1,311 m².
Snowdale’s response also reported that the indoor area of shed 1 at Swan Valley was said to be 910 m², and, consequently, that the highest internal stocking density since January 2013 for Swan Valley, was calculated on the basis of a flock size of about 12,740 hens in that shed.
There was also annexed to the Snowdale response a diagram of the relevant sheds at Carabooda and Swan Valley. In respect of each of the sheds at Carabooda the diagram stated there were “approximately 18,000” hens. In respect of the shed at Swan Valley the diagram stated that there were “approximately 12,750” hens.
In addition, Snowdale’s response to the substantiation notice indicated that the dimensions of the outside access areas for each shed were as follows:
Response
The outside areas for each respective free range shed have been estimated for the purposes of replying to the ACCC’s notice.
Carabooda Shed 4 – 2,000m²
Carabooda Shed 5 – 3,500m²
Carabooda Shed 6 – 2,300m²
Carabooda Shed 7 – 2,500m²
Carabooda Shed 8 – 2,600m²
Swan Valley Shed 1 – 13,000m²
At the trial, Mr Cocking also admitted in cross-examination, that the size of the outdoor access areas which he had provided in the response were inflated. In fact, the areas of the outdoor ranges reported by Mr Cocking were inflated by between 22% to 37% in respect of each outdoor range at Carabooda and about 50% in respect of Swan Valley.
Mr Cocking also explained in evidence, that his reference in the response to shed 4 at Carabooda being a free range shed was a mistake. He said that at the time that he provided the response, he only intended in the future to use shed 4 for the production of free range eggs.
On 18 April 2013, Mr Wesley and Ms Catherine Fleming, also an environmental health officer from the City of Wanneroo, visited the Carabooda farm in response to an application made by Snowdale to undertake the production of caged eggs. They had a conversation with Mr Cocking and Mr Groot, the farm manager, about the extent to which the hens in the free range sheds exited the sheds. I will deal with that conversation later in these reasons.
On 21 April 2013, three days after the visit from the environmental health officers, Mr Groot in his weekly report to Mr Cocking made the following comment:
The meeting with the City of Wanneroo seemed to go well although got a bit hairy when they asked to see the gates that let the birds out of the sheds. The sooner Cataby is up and running and Carabooda becomes cage free the better I think. All doubts gone.

In May 2013 at the latest, Snowdale published material on its website, which promoted the sale of eggs sold and marketed as “free range eggs by Ellah” packaged in the cartons which carried the labels referred to at [73] to [82] below. The website address was I will refer in more detail to the published material on the website below.
In late June or early July 2013, Snowdale entered into a lease with the Department of Conservation and Land Management for the lease of an area of Crown land of about 75 ha which was adjacent to the Carabooda location. Thereafter, Mr Cocking authorised the construction of fenced runs from each of sheds 5, 6, 7 and 8 to this open tract of land.
In July 2013, the number of pop holes at each of the four Carabooda sheds was increased. Thereafter, there were five pop holes on the northern side of each shed - which until then had no pop holes – and five pop holes on the southern side of each shed.
Further, following the addition of the five pop holes to the northern side of each shed, there was a reconfiguration of the range areas available for access by the hens which were adjacent to each shed. A new range was also established adjacent to the northern side of shed 8. I will deal in more detail with the question of the outdoor ranges later in these reasons.
On 14 August 2013, the ACCC issued a notice under s 155(1)(b) of the Competition and Consumer Act 2010 (Cth) (the s 155 notice) requiring Snowdale to provide information and furnish documents about, among other things, the conditions in which it produced the eggs which it marketed and sold as free range eggs.
In August and September 2013, Snowdale published the poster advertising the Swan Valley Egg Co Value Pack of free range eggs for Father’s day. That poster is described in more detail below.
By 1 September 2013, the fencing for the runs linking each of sheds 5, 6, 7 and 8 at the Carabooda farm to the newly leased 75 ha tract of land had been completed. There was an issue at trial about the extent to which the hens actually used the 75 ha area of land, and I will deal with this later in these reasons.
On 30 September 2013, Snowdale closed the free range farming operation at the Swan Valley location.
By notices dated 11 October 2013 and 24 October 2013, Snowdale responded in writing to the s 155 notice issued by the ACCC to Snowdale.
From about October 2013 to December 2013, the number of pop holes were increased again at each of the sheds at Carabooda.
On 24 October 2013, at approximately 11:00 am, two officers from the ACCC attended at a property adjoining the Carabooda farm and observed the Carabooda farm from that property. Those officers were Mr Martin Howard and Ms Brenda Banister-Jones.
On the next day, Mr Howard in the company of Ms Alicia Le’Roy, also an officer of the ACCC, returned to the property adjoining the Carabooda farm at approximately 9:20 am, and observed the sheds on the Carabooda farm from that property. Ms Le’Roy took photographs and a video recording of sheds 5, 6, 7 and 8 at the Carabooda farm.
On 25 October 2013 and 28 October 2013, Mr Cocking attended the offices of the ACCC and was asked questions about the farming conditions at the free range sheds at Carabooda and Swan Valley at an examination pursuant to s 155(1)(c) of the Competition and Consumer Act (the s 155 examination).
On 28 October 2013, Mr Howard and Mr Adrian Bettella attended the property adjoining the Carabooda farm at approximately 1:20 pm.
On 1 November 2013 at about 3:50 pm, Ms Banister-Jones and Mr Howard attended the property adjoining the Carabooda farm and observed sheds 5, 6, 7 and 8. Ms Banister-Jones took photographs and made a video recording.
On 9 December 2013, the ACCC commenced this proceeding. Some time prior to the trial of this matter, Snowdale ceased carrying on egg production from sheds 5, 6, 7 and 8 at Carabooda.
To the extent that the foregoing paragraphs contain statements of fact, I make findings of fact to that effect.
THE CLAIM MADE BY THE ACCC
The ACCC alleged that during the period 8 April 2011 to 9 December 2013, Snowdale by supplying, or causing to be supplied, eggs in the free range egg cartons referred to at [65] to [82] below, and by publishing, or causing to be published, the Snowdale website and the Snowdale poster, represented that the eggs supplied in the free range egg cartons were produced:
(a)by laying hens that were farmed in conditions so that the laying hens were able to move around freely on an open range on an ordinary day; and/or
(b)by laying hens most of which moved about freely on an open range on most days.
Particulars
An “ordinary day” is every day other than a day when on the open ranges weather conditions endangered the safety of the laying hens or predators were present or the laying hens were being medicated.
The ACCC alleged that by making the representation (which it referred to as “the free range representation”), Snowdale engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, because the eggs contained in the free range egg cartons were produced by hens:
(a)that were farmed in conditions so that the laying hens were unable to move around freely on an open range on an ordinary day; and/or
(b)most of which did not in fact move about freely on an open range on most days.
In support of the allegation referred to in [55] above, the ACCC alleged that the cumulative effect of the flock sizes, the dimensions and interior contents of the sheds, the size, placement and use of the pop holes, the presence of physical obstacles in the sheds, and the size and condition of the outdoor ranges, during the relevant period, reduced the ability and propensity of the hens, during that period, to exit sheds 5, 6, 7 and 8 at Carabooda and shed 1 at Swan Valley and move around freely on the open ranges; so that most hens did not, in fact, move about freely on an open range on most days.
The ACCC alleged that Snowdale’s conduct contravened s 18(1) of the ACL, as well as s 29(1)(a) of the ACL and s 33 of the ACL.
Section 18(1) of the ACL provides that:
A person must not, in trade or commence, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 29(1)(a) of the ACL provides that:
A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(a)make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use.
Section 33 of the ACL provides that:
A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
The ACCC alleged that, in addition to contravening s 18 of the ACL, Snowdale also contravened s 29(1)(a) because the representation that it made was a false or misleading representation as to the quality of the eggs which it had sold as free range eggs; and, also, that those eggs had a particular history.
Further, the ACCC alleged that Snowdale contravened s 33 of the ACL because the representation that it made was liable to mislead the public as to the nature or characteristics of the eggs which it sold as free range eggs.
SNOWDALE’S IMPUGNED PUBLICATIONS
As mentioned, the ACCC have relied upon three categories of publications produced by Snowdale as giving rise to the alleged free range representation. These publications comprised eight types of labels which were affixed to the cartons of eggs, the contents of Snowdale’s website and a poster. It is common cause that the publications were made.
The egg carton labels
There are eight different types of carton labels which are the subject of the proceeding. All eight of the impugned printed labels contain the words “free range eggs” and six of the eight carton labels contain additional words and images. I will refer below to each of the labels.
Swan Valley Egg Farm cartons
The labels in the first category of labels have an orange background. The label comprises a photograph of a young girl in a field with several hens. There is also a logo of a white hen standing outside on a banner which states: “Swan Valley Egg Farm”. The label also prominently contains the words across the top of the picture “Premium Free Range Eggs”. These labels were attached to the cartons which contained large (600 g), extra large (700 g) and jumbo (800 g) sized eggs. These labels were used during the whole of the relevant period. A copy of the label is Annexure 1 to these reasons for judgment.
Swan Valley Egg Co cartons
The labels in the second category of labels have a photograph of a single hen standing alone in a grassy open field. Beneath the picture of the single hen are the words: “premium free range eggs”. The picture also contains a logo of a hen in silhouette adjacent to the words: “Swan Valley Egg Co”. Beneath those words are the words: “Quality & Freshness Guaranteed by Farmer” and then a signature: “Barry Cocking”. These labels were attached to cartons which contained large (600 g) and extra large (700 g) sized eggs. These labels were used from May 2011 to September 2013. A copy of the label is Annexure 2 to these reasons for judgment.
Swan Valley Egg Co Value Pack cartons
The labels in the third category of labels have a blue and white background. This label was attached to the top of the carton of 18 eggs (1 kg). The label features stylised illustrations of three hens outside an American prairie style barn with sprigs of greenery, a butterfly and a flower and clouds. The largest of the three hens is very prominent. The words “Free Range Eggs” in stylised font are printed on this hen; and the words “Swan Valley Egg Co” are adjacent to that hen. Adjacent to the stylised illustrations is a paragraph of words under the heading: “Free Range Eggs”. The words are:
Our hens live in large sheds on our local WA egg farm. Inside they have comfy nest boxes and are fed a mix of naturally grown WA grains. Outdoors they are free to exercise in our paddocks…WA FARMER Barry Cocking [In the form of a signature.]
Below the stylised picture, the following phrases appear in a line, each of which is adjacent to a stylised picture of a love heart: “local WA farm”, “hormone free”, “natural WA grains”, and “comfy nest boxes”.
The label on the front of the carton bears the words “free range” in stylised print with a picture of a smiling egg, with the following phrases, each of which is also adjacent to a stylised picture of a love heart: “free to exercise”, “farm direct”, “farm fresh” and “least food miles”. This label was used from April 2013 to December 2013. A copy of the label is Annexure 3 to these reasons for judgment.
Carabooda Lovingly Hand Packed cartons
The labels in the fourth category of labels contains the words: “12 lovingly hand packed free range eggs direct from our farm” which dominate the label. The label has on the left side a stylised illustration of a hen under a smiling sun and cloud; and on the right side a picture of three smiling eggs and three love hearts with a speech bubble stating: “assorted sizes”. At the bottom of the label are the following words: “Our delicious free range eggs are hand packed just as they are - straight from the hen house to you” and “Enjoy the goodness of free range eggs at their freshest and most natural state”, separated by a small stylised illustration of the front of an American prairie style barn. This label was used during the whole of the relevant period. A copy of the label is Annexure 4 to these reasons for judgment.
Wanneroo Free Range Egg cartons
The labels in the fifth category of labels are half light green and half dark green. The light green side contains the words: “Wanneroo Free Range Eggs”, and beneath those words are the words: “fresh local Western Australian eggs”. The dark green side comprises a photograph of nine eggs in a group nestled in straw. The cartons come in large (600 g), extra large (700 g) and jumbo (800 g) sizes. The label was attached to the cartons containing those eggs. These labels were used during the whole of the relevant period. A copy of the label is Annexure 5 to these reasons for judgment.
Mega Free Range Eggs cartons
The layout of the labels in the sixth category of labels is very simple. The label has a white background which contains the words: “Mega Free Range Eggs” written in green. The eggs come in a “XXXL” (900 g) size and the label was attached to the cartons containing those eggs. This label was used during the whole of the relevant period. A copy of the label is Annexure 6 to these reasons for judgment.
Petite free range eggs by Ellah cartons
The labels in the seventh category of labels are white and pink and were used on cartons containing 700 g eggs. The label on the outside of the carton contains the words: “petite free range eggs by Ellah”, with “Ellah” written in large pink script. These words, particularly, the word, “Ellah”, dominate the label. Adjacent to the words is a stylised picture of a hen and an egg. Beneath that picture, the words: “12 petite free range eggs” appear; and beneath those words are the words: “Born and raised on our Swan Valley farm means I know eggs, and my eggs are the freshest and best. Love Ellah xox”. On the side of the carton are the words: “Eggs lovingly produced by Ellah” and the address of the Swan Valley farm.
On the inside carton cover is a predominantly pink label which bears a photograph of Ms Ellah Cocking with a single hen and a dog in a grassy outdoor area. Beneath that photograph are the words:
I now have my own free range hens that lay the freshest eggs. I am usually at the farmers markets so come and say hello.
The label (the new generation farmer label) also bears three other photographs of Ms Cocking as a child, and the following text:
I’m a new generation farmer, passionate about the care and welfare of my girls. To find out more go to Love Ellah xox
This label was used from May 2011 to December 2013. A copy of the label and the new generation farmer label is Annexure 7 Pts 1 and 2 to these reasons for judgment
Free range eggs by Ellah cartons
The labels in the eighth category of labels were used on cartons of eggs sold as “free range eggs by Ellah” containing the following sizes and varieties of eggs: 350 g, 600 g, 700 g, “Ellah’s extra large 700 grams” and “Ellah’s 800 grams”. The labels used for the different sizes and varieties bear the following unique features.
In respect of 350 g eggs, the label has a pink background and bears a stylised silhouette of two black hens and two white eggs as well as the words: “6 perfect free range eggs 350 grams net weight”. Beneath those words are the following words: “Born and raised on our Swan Valley farm means I know eggs, and my eggs are the freshest and the best. Love Ellah xox”. Below one of the hens are the words: “Six perfect free range eggs by Ellah”. On the inside cover of the carton is the new generation farmer label. These labels were used from April 2013 to December 2013.
The label for the 600 g eggs, has a purple background and bears the words: “free range eggs by Ellah”, a silhouette of a black hen and a white egg as well as the words: “12 great free range eggs 600 grams net weight”, and beneath those words are the words: “Born and raised on our Swan Valley farm means I know eggs, and my eggs are the freshest and the best. Love Ellah xox”. On the inside cover of the carton is the new generation farmer label. These labels were used from April 2013 to December 2013.
The label for the 700 g eggs has a pink background and bears a stylised silhouette of a black hen and a white egg as well as the words: “12 perfect free range eggs 700 grams net weight”, “Born and raised on our Swan Valley farm means I know eggs, and my eggs are the freshest and the best. Love Ellah xox”. On the inside cover of the carton is the new generation farmer label. These labels were used from May 2011 to December 2013.
The label for the extra large 700 g eggs has a dark blue background and bears a stylised silhouette of a pink hen and a white egg as well as the words: “10 extra large free range eggs 700 grams net weight”. Beneath those words are the words: “Born and raised on our Swan Valley farm means I know eggs, and my eggs are the freshest and the best. Love Ellah xox”. On the inside cover of the carton is the new generation farmer label. These labels were used from May 2011 to December 2013.
The label for the 800 g eggs has a dark blue background and has the words: “free range eggs by Ellah”. Adjacent to those words is a silhouette of a pink hen and a white egg and the words: “12 impressive free range eggs 800 grams net weight”; and below those words are the words: “Born and raised on our Swan Valley farm means I know eggs, and my eggs are the freshest and the best. Love Ellah xox”. On the inside cover of the carton is the new generation farmer label. These labels were used from April 2013 to December 2013. A copy of the label and the new generation farmer label is Annexure 8 Pts 1 and 2 to these reasons for judgment.
The Website
As mentioned, from May 2013, Snowdale advertised the eggs which it sold and marketed as “free range eggs by Ellah”, on its website.
The style of the website was in the form of a written message from Ms Ellah Cocking to the reader. The following words appeared on the opening page of the website:
Hello. I’m Ellah!
Welcome to my new website.
I’m a new generation egg farmer, passionate about the care and welfare of my girls. My happy free range hens lay the freshest eggs, ensuring you receive perfect eggs straight from my farm to your fridge. Click on the links above to find out more! Love Ellah xox
The pages of the website contained text and stylised drawings of an American prairie style barn and a single tractor and some hens on an open range. The website also contained photographs of Ms Ellah Cocking as an adult and also photographs of her as a child, and photographs and video recordings of hens on the open range adjoining shed 1 at the Swan Valley farm. The ACCC referred in its statement of claim, specifically, to the following text on the website:
(i)I am dedicated to raising happy healthy hens and producing delicious free range eggs;
(ii)My happy free range hens lay the freshest eggs, ensuring you receive perfect eggs straight from my farm to your fridge;
(iii)We get our girls as day old chickens, all cute fluffy and small. They then stay in the barn so that we can control the climate and ensure that they are eating and drinking enough. Once they are old enough, they move into their new homes in my free range paddock. Here they have a barn that provides them with food, water, nesting boxes and shelter from the elements. They also have a big open paddock that allows them to roam freely, bask in the sun and scratch around in the dirt;
(iv)My hens are fed a mix of grains and wheat (with no nasty additives), as well as whatever they dig up outside;
(v)Happy healthy hens + freedom to roam + a little bit of love = The Perfect Egg; and
(vi)My free range hens are happy, healthy and well looked after.
In addition, the webpage contained the following statements:
(i)On my farm we have combined the right mix to produce the perfect eggs; and
(ii)They share the paddock with their “bodyguards” two gorgeous alpacas Leonardo and Pierro who are always on the lookout.
The reference to the alpacas was a reference to the alpacas at the Swan Valley farm. After April 2014, the contents of the website was amended and the statements referred to at [85] at (ii) and (vi) above were removed.

The ACCC also referred to images and video recordings on the website of laying hens on an open range. A cached copy of the relevant website pages is Annexure 9 Pts 1, 2, 3 and 4 to these reasons for judgment.
The Poster
During the period August to September 2013, Snowdale published a poster which advertised the eggs which it sold in its Swan Valley Egg Co Value Pack (referred to at [67] above). The poster contained the words: “Father’s day special 18 Free Range Eggs”. Beneath those words was a picture of the Swan Valley Egg Co Value Pack. A copy of the poster is Annexure 10 to these reasons for judgment.
THE ISSUES
The claim made by the ACCC raises the following main issues:
(a)Did Snowdale’s publications give rise to the free range representation alleged by the ACCC?
(b)If so, was the free range representation false? That question gives rise to the following questions.
(c)What were the farming conditions during the relevant period at each of sheds 5, 6, 7 and 8 at the Carabooda farm and shed 1 at the Swan Valley farm?
(d)What was the cumulative effect of the farming conditions on the ability and propensity of the hens to exit the sheds and move around freely on the open ranges?
(e)Did most of the hens move about freely on the open ranges on most days?
THE WITNESSES
The ACCC called evidence from Mr Wayne Leslie Harris, Mr Phillip Ross Wesley, Ms Catherine Fleming, Mr Martin Wyndham Howard, Ms Brenda Arlene Banister-Jones, Mr Anthony Gerard Hilton, Ms Alicia Margaret Le’Roy, Mr Adrian Joseph Bettella and Mrs Rosa Tricoli. Each was cross-examined. The ACCC also called an expert witness, Dr Raf Freire.
Mr Wayne Leslie Harris
Mr Harris is a coordinator of health services with the City of Wanneroo. Mr Harris visited the Carabooda farm with his colleague, Mr Phillip Wesley, on 14 September 2011, to investigate an odour complaint. Mr Harris was a satisfactory witness and I accept his evidence.
Mr Phillip Ross Wesley
Mr Wesley is a senior environmental health officer with the City of Wanneroo who attended at Carabooda farm on two occasions – once with Mr Harris and then with Ms Fleming. Mr Wesley gave evidence and was cross-examined. Mr Wesley was a good witness. I accept his evidence.
Ms Catherine Fleming
Ms Fleming is and was, at the relevant time, an environmental health officer with the City of Wanneroo. Ms Fleming gave evidence and was cross-examined. Ms Fleming visited the Carabooda farm on 18 April 2013 in the company of Mr Wesley. Ms Fleming was a somewhat nervous witness who gave evidence to the best of her ability. I accept Ms Fleming’s evidence.
Mr Martin Wyndham Howard
Mr Howard gave evidence and was cross-examined. He was in late October and early November 2013, an assistant director in the enforcement operations WA branch of the ACCC. Mr Howard visited the neighbouring property to the Carabooda farm with other colleagues on four occasions, namely, 24, 25, 28 October 2013 and 1 November 2013. Mr Howard annexed to his affidavit a disc which included about 70 photographs which he had taken on one of these visits. Mr Howard was a satisfactory witness, who was prepared to make reasonable concessions about the extent of his recollection. I accept Mr Howard’s evidence.
Ms Brenda Arlene Banister-Jones
Ms Banister-Jones is an investigation officer with the ACCC in the enforcement operations WA branch. Ms Banister-Jones observed the Carabooda farm from the neighbouring property on two occasions, namely, 24 October 2013 and 1 November 2013. On 1 November 2013, Ms Banister-Jones took photographs and made a video recording of her observations of the Carabooda farm. Ms Banister-Jones gave evidence and was cross-examined. Ms Banister-Jones was a satisfactory witness and I accept Ms Banister-Jones’ evidence.
Ms Banister-Jones also deposed to an affidavit which exhibited aerial images of the Swan Valley farm and Carabooda farm at different times which had been obtained from a website, Ms Banister-Jones was not cross-examined on this affidavit.
Mr Anthony Gerard Hilton
Mr Hilton is a director of the ACCC, who gave evidence and was cross-examined. Mr Hilton made two affidavits which were uncontroversial and which annexed, among other things, the notices issued to Snowdale and Mr Cocking by the ACCC and the responses thereto, the impugned publications and the transcript of Mr Cocking’s s 155 examination by the ACCC. Mr Hilton was cross-examined about an investigation in 2011 of Snowdale which the ACCC had commenced and then terminated. Mr Hilton was a satisfactory witness and I accept his evidence.
Ms Alicia Margaret Le’Roy
Ms Le’Roy gave evidence and was cross-examined. On 25 October 2013, Ms Le’Roy was a senior investigator employed by the ACCC, and she, along with Mr Howard, visited the neighbouring property to the Carabooda farm. Ms Le’Roy took photographs and made a video recording of her observations of the Carabooda farm. The video recording was played in Court and the video recording showed images of sheds 5, 6, 7 and 8 and the adjacent outdoor ranges. Ms Le’Roy was a satisfactory witness and I accept her evidence.
Mr Adrian Joseph Bettella
Mr Bettella gave evidence and was cross-examined. He was in October 2013, an assistant director in the enforcement operations WA branch of the ACCC. He observed the Carabooda farm on one occasion, namely, on 28 October 2013. He gave evidence to the best of his ability. However, the weight to be given to his evidence is questionable because, on his evidence, he did not walk sufficiently far along the border of the neighbouring property to have a good view of the free range sheds on the Carabooda farm.
Mrs Rosa Tricoli
Mrs Tricoli is the owner of a property which is on the northern boundary of the Swan Valley farm. Mrs Tricoli gave evidence and was cross-examined. Mrs Tricoli said that from about August 2011, she observed the Swan Valley farm on almost a daily basis by standing on milk crates and looking over the fence into the adjacent yard which was the yard adjacent to shed 1 - the free range shed at Swan Valley.
Mrs Tricoli was cross-examined. Mrs Tricoli was not cross-examined on her evidence of the observations that she made. Rather, an attack was made on her evidence on the basis that she was biased against Mr and Mrs Cocking. Mrs Tricoli said that she had at one time been very friendly with Mr and Mrs Cocking and was the godmother of one of their daughters. However, the relationship had subsequently broken down. Mrs Tricoli said that she had opposed the application which Snowdale had made to the State Administrative Tribunal for a retrospective grant of a licence to keep a large number of chickens on the property. Mrs Tricoli said that she had opposed the application because of the stench which the farm had created in the vicinity. Mrs Tricoli said in cross-examination, that she had told Mr and Mrs Cocking that she objected to the smell of the chicken farming operations and that she had suggested to Mr and Mrs Cocking that they move the chicken farming operations out of the Swan Valley, but she denied she had said she wanted them out of the Swan Valley so that she could subdivide her land as a means of providing money for her grandchildren.
Mrs Tricoli was a forthright witness and gave her evidence to the best of her ability. However, in the end, I did not find Mrs Tricoli’s evidence to be of assistance.
Mr Peter Groot
Mr Peter Groot was the farm manager at Carabooda farm. He was originally on the list of persons due to give evidence as part of Snowdale’s case. However, Mr Groot was not available when called. The ACCC then tendered Mr Groot’s affidavit of 15 December 2014.
Dr Raf Freire
I deal at some length with the evidence of Dr Freire and Snowdale’s criticisms of that evidence later in these reasons. I find that Dr Freire was an impressive witness, and I have accepted his evidence.
SNOWDALE’S WITNESSES
There were 35 persons who gave evidence as part of Snowdale’s case. Not all of the witnesses were cross-examined. The main witnesses, however, were Mr Barry Cocking, Ms Ellah Cocking and Mr Dennis Green.
Snowdale called as witnesses a number of Mr Barry Cocking’s relatives. These persons were:
(1)Mr Barry Barton, his father-in-law;
(2)Mrs Maureen Barton, his mother-in-law;
(3)Mr Alexander Cocking, his son;
(4)Mrs Chimene Cocking, his wife and director of Snowdale;
(5)Ms Ellah Cocking, his daughter;
(6)Ms Emilia Cocking, his daughter;
(7)Mr Jeremy Fischer, employee of Snowdale at the Swan Valley farm and Ms Ellah Cocking’s husband;
(8)Ms Emma Slavin, the sister-in-law of Ms Chimene Cocking;
(9)Mr Paul Grogan, who is Mr Cocking’s nephew and who was employed by Snowdale at the Carabooda farm.
Mr Wayde Knight, an insurance broker for Snowdale also gave evidence. Mr Knight is the fiancé of Mr Barry Cocking’s niece.
Mr Benjamin Whelan, a former part-time delivery driver for Snowdale, who worked at the Swan Valley farm, also gave evidence. Mr Whelan was at the time of the trial, in a relationship with Mr Cocking’s daughter, Ms Emilia Cocking.
In addition, Snowdale adduced evidence from the following persons who had worked on, or visited, either one or both of the Carabooda farm and the Swan Valley farm during the relevant period:
(1)Ms Lisa Jackson, a shop assistant at the shop at the Swan Valley farm;
(2)Ms Michaela Wolpers, a family friend of Mr and Mrs Cocking and daughter of Ms Paula Christensen;
(3)Ms Paula Christensen, a family friend of Mr and Mrs Cocking;
(4)Mr Kimberley Holmes, an agribusiness manager employed by Rural Bank;
(5)Mr Allister Milne, a former employee of Snowdale at the Swan Valley farm;
(6)Mr Max Babe, a truck driver in Mr Roger Susac’s business, who collected chicken manure from the Swan Valley and Carabooda farms;
(7)Mr Christopher Anthony, an electrician, who was the principal of the business, Beechboro Electrical, Refrigeration & Air-conditioning Services, who performed electrical work at the Swan Valley and Carabooda farms;
(8)Mr Peter Berryman, a finance broker who, between March 1996 and December 2013, worked as a finance broker for Westminster National and who provided finance broking services to Snowdale during that period;
(9)Mr Steven Guest, a delivery driver employed by Snowdale, who collected eggs from the Swan Valley and Carabooda farms;
(10)Mr Justin Anthony, an electrician employed in his father’s business, Beechboro Electrical, Refrigeration & Air-conditioning Services, who performed electrical work at the Swan Valley and Carabooda farms;
(11)Mr Brian Miles, a valuer, who visited and provided valuations of the Swan Valley farm in November 2009 and November 2012;
(12)Mr Roger Susac, the owner of a trucking and heavy machinery business, who collected chicken manure from the Swan Valley and Carabooda farms;
(13)Ms Jenny Pinto, a freelance bookkeeper, who was employed by Snowdale on a part‑time basis;
(14)Mr Darren Deveraux, an employee of Snowdale at the Swan Valley farm since September 2013, who on multiple occasions between April 2011 and September 2013, visited the Swan Valley farm for social reasons;
(15)Mr Trevor Gellatly, a shearer that visited the Swan Valley farm once in October 2011 and once in October 2012 to shear the two alpacas;
(16)Mr Kim Siow, a director of Agri Enterprises, who visited Swan Valley farm;
(17)Mr Carl Knapp, an employee of a packaging supplier, who had visited both the Swan Valley and Carabooda farms on one occasion each to discuss Snowdale’s packaging needs;
(18)Mr Kevin Cousins, a former employee of Snowdale, who worked at the Swan Valley and Carabooda farms from November 2001 until January 2013;
(19)Mr Chau Vo, an egg distributor, who visited the Swan Valley and Carabooda farms to collect eggs for distribution;
(20)Mr Eric Vo, brother and employee of Mr Chau Vo, who visited the Swan Valley and Carabooda farms to collect eggs for distribution;
(21)Mr Evo Slots, a director of B&M Slots Pty Ltd, a company that supplied and installed poultry equipment at the Carabooda Farm;
(22)Mr Rodney Nowell, a sub-contractor, who lived at the Carabooda farm for approximately four weeks in 2011 while installing a nesting box system and egg conveyor at the Carabooda farm.
The witnesses who were not cross-examined were: Ms Slavin, Mr Whelan, Ms Jackson, Mr Babe, Mr Guest, Mr Susac, Ms Pinto, Mr Deveraux, Mr Gellatly, Mr Knapp.
The vast majority of these witnesses were called by Snowdale to give evidence of the number of hens which each person saw on the outside range areas at sheds 5, 6, 7 and 8 at the Carabooda farm, and at shed 1 at the Swan Valley farm.
I deal with the evidence of these witnesses later in these reasons.
Mr Barry Cocking
As mentioned, Mr Cocking is a director of Snowdale and was, during the relevant period, responsible for, and actively involved, in the management of the egg production business of Snowdale.
Mr Cocking gave evidence and was cross-examined. Mr Cocking was an unimpressive witness. I have found his evidence to be unreliable.
One manifestation of Mr Cocking’s unreliability emerged from the disparity between the pre‑trial statements which Mr Cocking, on behalf of Snowdale, made in Snowdale’s responses to the ACCC’s substantiation notice and the s 155 notice, and the facts that subsequently emerged. Thus, it emerged that Snowdale’s response to the substantiation notice exaggerated the size of the outdoor range area at Swan Valley by about 50%. Mr Cocking, on behalf of Snowdale, said that the free range yard at Swan Valley was approximately 13,000 m². However, at the trial, nearmap photographs established that the free range yard was 6,489 m². Likewise, it emerged that Snowdale’s substantiation notice response exaggerated the size of the outdoor ranges at Carabooda by on average 30%.
Further, in Snowdale’s response to the substantiation notice, Mr Cocking also included shed 4 at Carabooda as a free range shed. Later, he said that he had been mistaken and shed 4 had never housed hens, which laid eggs that were sold as free range eggs.
Also, in Snowdale’s response dated 18 October 2013, to the s 155 notice, Mr Cocking had said that there was a policy of one pop hole being kept open 24 hours per day at both Carabooda and Swan Valley. Mr Groot’s evidence was that the pop holes were all closed at night at Carabooda. During his cross-examination, Mr Cocking said that at the time he gave his answer, that was his understanding, but he subsequently found out that at Carabooda, the farm manager changed the policy and did not leave a single pop hole open 24 hours per day.
There were also disparities in the information given by Mr Cocking in Snowdale’s response to the substantiation notice and his evidence about the number of pop holes at Carabooda. I refer to that evidence later in these reasons.
Also, whilst giving evidence, Mr Cocking sought in an obvious way to tailor his evidence in a manner which he thought would assist Snowdale’s case. Mr Cocking refused to make concessions which he thought would damage Snowdale’s case, even when the requirement to make concessions was obvious.
An example of this occurred when Mr Cocking was being cross-examined about the number of hens that were placed in shed 1 at Swan Valley. It was suggested to Mr Cocking that he had in February 2012, advised the councillors of the City of Swan that he had been operating the Swan Valley farm at its full capacity of 80,000 hens since June 2007.
Mr Cocking was taken to his email of 28 February 2012 to the councillors of the City of Swan which contained statements to that effect. Mr Cocking obstinately refused to accept the objective evidence as disclosed by the terms of the email that he wrote, and insisted that he was not referring to the number of hens actually in the sheds at Swan Valley since June 2007, but rather to the capacity of the sheds. I deal in greater detail with this email later in these reasons.
Another instance of Mr Cocking refusing to acknowledge the obvious, because he perceived the answer would harm Snowdale’s case, was when Mr Cocking denied in cross-examination, that the purpose of installing the additional five pop holes was to ease access for the hens to the free range yards. Mr Cocking insisted that they were put in to effectuate what he referred to as a “paddock redistribution”.
The unreliability of Mr Cocking’s evidence was further revealed when he was cross‑examined in relation to the extent of Snowdale’s discovery of documents.
Snowdale gave discovery of a number of documents authored by Mr Groot. In the discovery affidavit, the documents were described as “untitled documents”. In fact, the documents were weekly reports by Mr Groot referring to significant events that occurred at the Carabooda farm, including the progress of the birds in the rearing sheds, egg production performance and impending tasks on the farm. Discovery and inspection was given of the Groot reports as stand-alone single documents, and not as annexures to emails.
Shortly prior to trial, the ACCC’s solicitors sought, by a letter, discovery specifically of egg production records for the free range sheds for the purpose of estimating the number of hens in each shed; and also discovery of email communications between Mr Cocking and the farm managers at the Carabooda and Swan Valley farms. No such discovery was given by Snowdale.
During cross-examination, Mr Cocking admitted that the Groot reports had been emailed to him and that he would have replied to Mr Groot by email.
Senior Counsel for the ACCC then asked Mr Cocking to bring to Court the following day copies of the email responses that he had made to Mr Groot in response to his emailed reports. Senior Counsel also asked Mr Cocking to explain why the Groot reports had been discovered and produced for inspection in a form which did not disclose that each of the reports was part of an email communication to him by Mr Groot. Mr Cocking replied that he would have forwarded the emails from Mr Groot on to Snowdale’s solicitors and he would not have himself separately printed the reports attached to Mr Groot’s emails.
When asked in Court on the following day to produce the email responses he had made to Mr Groot’s emails, Mr Cocking said that he had not looked for them at his home on the previous day. However, later in the day in Court, counsel for Snowdale said that the only documents that his instructing solicitors had been given were the documents which had been discovered and produced for inspection, namely, the single pages comprising the Groot reports without any accompanying documents.
During an adjournment, Mr Cocking and Snowdale’s solicitors conducted a search of Mr Cocking’s computer. That search produced four emails from Mr Groot to Mr Cocking and the documents were produced to the Court. Those emails attached a Groot report for the week in question as well as a detailed spreadsheet report containing a daily record of the eggs which had been produced in each of the sheds at Carabooda in the relevant week. However, there were no emails in respect of any of the other 31 Groot reports. Nor was any email produced comprising a response by Mr Cocking to any of Mr Groot’s emails attaching his report and egg production spreadsheet.
During subsequent cross-examination, Mr Cocking ultimately admitted that, contrary to his previous evidence, he had not produced to Snowdale’s solicitors the emails which Mr Groot had regularly sent him containing the reports and egg production spreadsheets. He also admitted that, contrary to his previous evidence, he had printed the Groot reports as a separate document, and he had given the printed Groot reports to Snowdale’s solicitors in a file for the purpose of discovery and inspection.

This episode not only undermined the reliability of Mr Cocking’s evidence as to the material he gave to Snowdale’s solicitors for the purpose of giving discovery, but it also illustrated that Mr Cocking had taken deliberate steps to conceal the existence of the spreadsheets that identified details of egg production by separating them for the Groot reports before providing those reports to Snowdale’s solicitors.
The emergence of the egg production spreadsheets during the trial gave rise to Mr Cocking giving more unsatisfactory evidence.
Prior to trial, the ACCC’s solicitors, in an attempt to agree facts, invited Snowdale to provide an estimate of the hen numbers in each shed based upon the egg production numbers for each shed. Snowdale declined to do so. At the trial, Mr Cocking gave evidence that he did not know the size of the flocks in the sheds, and that, save for the limited flock sizes, pleaded in relation to sheds 5, 6, 7 and 8 at Carabooda, Snowdale did not keep records of the flock sizes.
However, during cross-examination, Mr Cocking was asked whether, based on the spreadsheet for the egg production of 98,418 eggs for the week ending 30 September 2012, it would be possible to estimate the flock size of the hens in the sheds at Carabooda. It was put to Mr Cocking that a total of 98,418 eggs in one week would “tell you that there were 16,400 hens, approximately”. Mr Cocking agreed that it was possible to estimate the number of hens based upon egg production.
The following cross-examination then took place:
Mr Cocking, 98,418 eggs in one week would tell you that there were 16,400 hens, approximately. Would you agree with that?---I don’t have a calculator with me, no, but could be, yes.
It’s a simple calculation though, isn’t it? If you’re saying, as you said last week, approximately one hen is going to lay six eggs a week, it’s pretty easy to work out from a total number of eggs how many hens were likely to have been in that shed in that week, isn’t it?---Mmm.
Do you agree?---Yes, but as I say, I don’t have a calculator to divide it out exactly.
So - - -?---But if you’re assuming – if you’re assuming 16,000 – okay. Yes.
All right. And you’ve chosen not do that exercise in relation to the records that you have to establish the flock sizes?---I’m missing the point. I don’t understand the question.
Well, we’ve just done an exercise with one Excel spreadsheet that tells us that in the week ending 23 September 2012 there are approximately 16,400 hens in shed 5?---Approximately. I – possibly, yes.
And you have elected not to do that exercise in relation to other Excel spreadsheets of this type in order to be able to assist the court about the flock sizes in those barns during the relevant period; correct?---I – I – I’ve never done an exercise like that, no.
Later in the cross examination, the following exchange occurred:
You told us earlier that you never tried to do a calculation of flock sizes based on the number of eggs that were laid by chickens in a barn; is that correct?---Can you give me the question again, thank you?
Well, I showed you the Excel spreadsheets with the egg numbers and I put to you that the respondent had chosen not do a calculation from egg numbers to be able to tell the court what the flock sizes were throughout the period, correct?---Because in those flocks in those sheds we didn’t know what the birds were in the shed. So we couldn’t – we didn’t have the bird number to do the calculation.
But you can work out the bird number from the number of eggs, can’t you?---No. It’s not precise. It’s a pointless exercise.
But you can estimate it, can’t you?---It’s a pointless exercise. We’ve never done that. As you see in Peter Groot’s – there he said it’s up two per cent; up two per cent on what? Up two per cent on last week is the information that we needed to know.
Mr Cocking was then taken to a paragraph of his affidavit which had been deleted in which Mr Cocking had undertaken an exercise in calculating the number of hens in the Swan Valley shed by reference to egg production numbers in order to show that there were only 8,000 hens in the shed at Swan Valley. Then the following exchange occurred:
So you did that exercise for Swan Valley. Correct?---Yes.
When the answer suited you. Correct?---No.
But you’ve made no effort to do that exercise in relation to Carabooda barns, have you?---No.
And your evidence before, about never having done that exercise, was false. Correct?---Yes. I didn’t remember doing this.
Because of the unreliability of Mr Cocking’s evidence, I have approached Mr Cocking’s evidence with considerable caution.
Ms Ellah Cocking
Ms Ellah Cocking gave evidence and was cross-examined. Ms Cocking was also an unsatisfactory witness.
Ms Cocking was cross-examined about her participation in Snowdale’s marketing strategy to promote the sale of eggs under the brand name “free range eggs by Ellah”. It emerged during that cross-examination, that Ms Cocking was content to provide consumers with misleading information as part of that marketing strategy in order to promote Snowdale’s business interests.
Ms Cocking was taken to statements on Snowdale’s website which, said the ACCC, sought to create the impression that she had a farm, that she looked after, and was concerned about the welfare of, the hens on her farm which she referred to as “her girls”, that the eggs in the “free range eggs by Ellah” cartons were laid by those hens, and that the farm was the Swan Valley farm. Among the statements on the Snowdale website, to which the ACCC referred, were:
I’m a new generation farmer, passionate about the care and welfare of my girls. My happy free range hens lay the freshest eggs, ensuring you receive perfect eggs straight from my farm to your fridge.
…
Once they are old enough they move to their new homes in my free range paddock.
Ms Cocking was also taken to publications in August 2011, November 2011 and March 2012 referring to interviews that Ms Cocking had given to journalists in which Ms Cocking made statements which created the impression that the eggs sold under the label “free range eggs by Ellah”, were the product of hens on “her farm”.
Ms Cocking accepted that the references to “her farm” in the publications were references to the Swan Valley farm.
However, in fact, as mentioned, after the middle of 2011, when the eggs from Carabooda and Swan Valley were aggregated at Swan Valley, the “free range eggs by Ellah” cartons were filled with eggs indiscriminately without regard to their origin, with the consequence that those cartons comprised mostly eggs from the Carabooda farm.
The following exchange occurred during cross-examination:
Okay. Now, when you spoke to the reporter, you described the farm in such a way as to communicate to consumers what those chickens that laid those eggs – what their environment was; correct?---Yes.
And you knew that that was important to some consumers, didn’t you?---I do.
And you knew that people are very interested in the extent to which chickens are actually going outside?---Yes.
And you wanted to show them a nice yard that had hens roaming around in it; correct?---Yes.
And all of the marketing was focused on you and your farm; correct?---Yes.
But the eggs that were in Ellah cartons also came from Carabooda hens, didn’t they?‑--Yes. They did.
…
Later in the cross examination, the following exchange occurred:
When you put on your website - - -?---Yes.
- - - all of the stuff about your farm and photos and videos that you did later on
- - -?---Yes. Yes.
- - - at the time you put the photos and videos up, on 23 February - - -?---Yes.
- - - 2013, by that time most of the eggs came from Carabooda; correct?---Yes. That’s correct.
Ms Cocking was indifferent about having created the misleading impression that the eggs sold as “free range eggs by Ellah” were laid by the hens on her farm, which she called “my girls”, and for whose welfare she was concerned, when in fact most of those eggs had been laid by other hens. During cross-examination, the following exchange occurred:
The eggs in here more probably, if we do it by the numbers, came from Carabooda?‑‑‑Not necessarily in the beginning because I wasn’t supplying hardly anywhere.
Yes. But when you were supplying there were four, five, six, seven, eight – four sheds at Carabooda?---Yes.
With between 14 and 18,000 chickens in it?---Mmm.
And your shed - - -?---Yes.
- - - that had between 8 and twelve, the probability is most of these eggs would have been from Carabooda; correct?---Yes. Some of them would have come from Carabooda.
Most of them?---If the numbers say that.
Well, do the numbers not say that?---I’m not sure. You’re - - -
Did you have as many free range hens as your father did at Carabooda?---No.
Not by a long shot?---No. But they’re still the free range hens.
And later, the following cross-examination occurred:
But when you’re talking about my girls - - -? Mmm.
- - - and a little bit of love - - -?---Yes.
- - - you were communicating to consumers - - -?---Mmm.
- - - that they came from your chickens, weren’t you?---The entire farm is a family business, so I would say that they’re all our chickens.
Further, Ms Cocking tailored her evidence to support Snowdale’s case. There were occasions when Ms Cocking was obstinate and refused to give a straight answer to a question when the answer was obvious, but she thought the answer would harm Snowdale’s case.
One example of this was when Ms Cocking refused initially to accept in cross-examination, that her reasons for installing ramps at the pop holes in shed 1 at Swan Valley was to make it easier for the hens to get in and out of the shed. The following exchange occurred during cross-examination:
…And why did you have them put in?---I don’t know if there was anything behind it, but it was just an idea of mine to ramp it out a bit. There was no real reasoning behind it.
But you must have had some purpose for doing it, because it would have involved somebody doing some work?---Yes, I just wanted to try it out I think. It was my paddock and I was trying different things.
But why would you try that? What did you think it might do?---I couldn’t tell you. I just did it. There was no real reasoning behind it.
A further example of Ms Cocking declining to give an answer, when the answer was obvious, occurred at 256 of the transcript when she was being cross-examined on her evidence that ranges A, B and C had been used throughout the relevant period as outdoor range areas. Ms Cocking was taken to a close up of a nearmap aerial photograph of the area, comprising what was referred to as ranges A, B and C, which was adjacent to shed 1 at the Swan Valley farm. That photograph clearly showed that there was a gap between the edge of the shed and the end of a fence which only partially extended along the southern border of range C and the end of the shed. An acknowledgment of the existence of a gap would have been adverse to Ms Cocking’s evidence that range C had been used at that time as an outdoor range area.
The following cross-examination took place:
Actually, to orient you, I will start you at 123. The next one is a close-up. So starting at 123?---Yes.
This is 23 January 2012. If we go over the page now, we get a closer-up?---Yes.
And this gives you a very good view of the gap between the fence at the south of range C and the end of the barn, doesn’t it?---It does.
And there’s nothing there, is there?---It’s – I couldn’t tell you.
I beg your pardon?---I’m not sure.
You’re not sure?---No.
Likewise, Ms Cocking was, at 274 and 275 of the transcript, taken to another nearmap aerial photograph which was taken on 14 May 2013 – about 6-7 weeks after the issue of the substantiation notice. That photograph showed the presence for the first time of hens on the area known as range B. The photograph also showed that the vegetation in the range B area had been substantially denuded save for some vegetation on the right-hand side of the range B area. This was in contrast to earlier nearmap aerial photographs of the range B area which showed fairly lush vegetation in that area, which would indicate the absence of hens. The following exchange occurred:
And again this is obviously still after the substantiation notice, and we see a lot of chickens; is that right?---That’s correct.
And if you look at the photograph that is not a close-up, can you now see a fence between Range B and Range C?---Yes. I can.
And can you now see that Range B is almost as denuded as Range A?---No. That wouldn’t be the case.
Well, look at the photograph?---I am looking at the photographs. I see a lot of vegetation running up the right-hand side and then I can’t see the rest of the other side because of all of the shade from the trees and the house.
Okay. What about the area that is not in shade to the north of that?---You - - -
Do you agree that that looks as denuded as the Range A area?---No. Range A is completely flat. There is no - - -
I’m asking you about the area to the north of the shade?---Yes.
Do you agree with me that that looks - - -?---No. I don’t. Range A, like I was saying, is completely – the land is completely flat because it’s barren whereas range B, there’s shapes, I guess I would say, that appear to be vegetation.
Ms Cocking refused in cross-examination to acknowledge the obvious.
In my view, Ms Cocking’s refusal to answer questions was because she perceived that a truthful answer would harm the interests of Snowdale.
I find that Ms Cocking tailored her evidence to promote what she thought would advance Snowdale’s case.
I have approached the evidence of Ms Cocking with considerable caution.
Mr Dennis Green
Mr Green presented an expert report. For the reasons which I discuss later in these reasons, I place no weight on the expert report of Mr Green, and approach his evidence generally with considerable caution.
DID SNOWDALE MAKE THE REPRESENTATION IN THE TERMS ALLEGED?
I now deal with the question of whether the publications referred to by the ACCC conveyed the free range representation pleaded by the ACCC. As mentioned, that representation was that during the period 8 April 2011 to 9 December 2013, Snowdale by supplying or causing to be supplied eggs in the free range egg cartons referred to above, and by publishing, or causing to be published, the Snowdale website and the Snowdale poster, represented that the eggs supplied in the free range egg cartons were produced:
(a)by laying hens that were farmed in conditions so that the laying hens were able to move around freely on an open range on an ordinary day; and/or
(b)by laying hens most of which moved about freely on an open range on most days.
Particulars
An “ordinary day” is every day other than a day when on the open ranges weather conditions endangered the safety of the laying hens or predators were present or the laying hens were being medicated.
The onus is on the ACCC to establish the representation which it pleaded. If it fails to establish that the representation was made, the ACCC’s case fails. Somewhat unusually, and unnecessarily, for a respondent, Snowdale, at para 43 of its defence, pleaded an alternative representation, namely that by its conduct it had represented that the laying hens were farmed in conditions whereby they had access to an open range. This is a meaning consistent with the meaning of “free range” farming adopted by the Model Code.
This presumably reflects Mr Cocking’s view as to the meaning of “free range eggs”. In cross-examination, Mr Cocking said that “free range” farming meant “[b]irds not in a cage. Inside a barn. Free access inside the barn. Access outside.”
I will deal with Snowdale’s submissions in detail in due course.
However, it is apparent that the difference in the pleaded positions of the parties was the following. The ACCC contended that the expression “free range eggs” meant that the hens were farmed in conditions such that the hens were able to access and most actually did access, and move around freely on, an outdoor range on most days. Conversely, Snowdale’s pleaded position was that it was sufficient if the hens were housed in sheds which had a means of access to an outdoor range, regardless, as to the extent the hens actually used that access to go outside on to the outdoor range.
In considering whether the Snowdale publications gave rise to the representation the ACCC pleaded, it is necessary to apply the principles which the courts have developed to determine whether impugned conduct is misleading or deceptive, or is likely to mislead or deceive, under the ACL and its predecessor, the Trade Practices Act 1974 (Cth). I now set out below a summary of the relevant principles.
In assessing whether conduct is misleading or deceptive or likely to mislead or deceive, the impugned conduct must be identified and considered as a whole, and regard must be had to the full factual context in which that impugned conduct occurred (Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 (Google Inc) at [89] and [102]).
For the conduct to be misleading or deceptive, or likely to mislead or deceive, the impugned conduct must have the tendency to lead the consumer into error.
Where, as in this case, it is alleged that the impugned conduct comprises the making of a representation to the public at large, the conduct must be judged by the effect of the conduct upon ordinary or reasonable members from the class of consumers to whom the representation was addressed (Google Inc at [118]). This will require the Court to identify the class of consumers to whom the representation was addressed and then consider objectively how ordinary or reasonable members of the class would understand the representation (Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 at [105]).
In some instances, the words and images comprising a representation may be capable of conveying different meanings to different people. The question then is whether the meaning contended for is reasonably open and might be drawn by a significant number of persons to whom the representation was addressed.
The following observations of Weinberg J in CPA Australia Ltd v Dunn (2007) 74 IPR 495 at [28], are germane:
Statements that are capable of more than one meaning may be misleading or deceptive provided that the meaning for which the applicant contends is one that would be reasonably open, and might be drawn by a significant number of those to whom the representation is made. In the same way, a statement may contain a representation that is implied, rather than express. That is why a statement that is literally true can be misleading or deceptive.
Also, in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73 (Coles) at [46], Allsop CJ approved the following observations by Hill J in Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 50:
Where, as in the present case, the advertisement is capable of more than one meaning, the question of whether the conduct of placing the advertisement in a newspaper is misleading or deceptive conduct must be tested against each meaning which is reasonably open. This is perhaps but another way of saying that the advertisement will be misleading or likely to mislead or deceive if any reasonable interpretation of it would lead a member of the class who can be expected to read it into error…
Allsop CJ then went on to observe in relation to those observations at [47]:
These comments are of particular importance in assessing the evidence in this case. Where advertising material uses simple phrases and words evoking attractive notions, but without necessarily precise meaning, ambiguity or reasonably available different meanings may well arise. Context and the "dominant message" will be important. If one or more of the reasonably available different meanings is misleading, the conduct may well be misleading or deceptive, or false and misleading.

A number of other witnesses gave evidence as to the estimated number of hens they saw by reference to a specific numerical range, which was largely consistent with Mr Milne’s estimate. These witnesses were, Mr Guest, who was a delivery driver who went to the Swan Valley farm every day to collect eggs for delivery, Ms Jackson, who worked at the Swan Valley farm for five days a fortnight during the relevant period, Mr Susac, a truck driver who visited the Swan Valley farm about twice a week during the relevant period, and Ms Pinto, who was a part-time bookkeeper employed by Snowdale.
There were also witnesses who estimated seeing “hundreds” or between 500 to 1,000 hens. The witnesses who fell into this category were, Mr Berryman, a finance broker; Mr Alexander Cocking; Mr Deveraux, a contractor; Mr Gellatly, a shearer, who visited the Swan Valley farm once a year to shear the alpacas; Mr Knapp, who visited the Swan Valley for two hours on 23 March 2012; Mr Whelan, who worked for Snowdale as a part-time delivery driver and in the shop selling eggs; and Mr Siow, who supplied egg packaging and machinery to Snowdale. Also, in this category was Ms Slavin, who was Mrs Cocking’s sister-in-law and who, during the relevant period, visited the Swan Valley farm about twice a month to visit Mr and Mrs Cocking and, thereafter, Mr and Mrs Barton.
The estimates of the number of hens seen by these witnesses is not inconsistent with Mr Milne’s evidence. The estimates of all of these witnesses also approximate the predictions and estimates made by Dr Freire as to the number of hens that would go out on the outdoor range at any one time.
There were, however, a number of eye witnesses who estimated that they saw one or more thousand hens in the Swan Valley farm free range area.
Among those witnesses were, Ms Christensen, Mr Cousins, Mrs Cocking, Mr Fischer, Mr Holmes, Mr Chao Vo and Mr Eric Vo. Each gave evidence that each saw, what he or she estimated to be, thousands of chickens in the free range yard adjacent to shed 1 at the Swan Valley farm. I have already stated, when dealing with the estimates of the hens seen outdoors at Carabooda, that I find the estimates made by these witnesses to be unreliable. I, therefore, prefer the evidence of Mr Milne to the evidence of each of these witnesses.
Each of Mr and Mrs Barton said that they saw thousands of chickens in the open range. Mr and Mrs Barton, are the parents of Mrs Cocking. Mr and Mrs Barton lived in the house formerly occupied by Mr and Mrs Cocking on the Swan Valley farm.
Neither of Mr Barton or Mrs Barton deposed to having expertise or experience in chicken farming or counting chickens. I prefer the evidence of Mr Milne.
Ms Ellah Cocking gave evidence that she had seen between 1,000 to 5,000 chickens in the free range yard. I have already found that Ms Ellah Cocking’s evidence should be approached with considerable caution. I prefer the evidence of Mr Milne.
In his affidavit, Mr Miles estimated that he saw about 500 to 1,000 chickens in the free range yard. In cross-examination, he changed his estimate to between 500 to 2,000 chickens. Mr Miles is a valuer, who attended the Swan Valley farm to conduct a valuation in November 2012. Mr Miles did not depose to having any experience in chicken farming or in counting chickens. In fact, Mr Miles admitted in cross-examination, that he was not very good at counting chickens. Further, his evidence is also unconvincing because he said that on the occasion of his visit, he only went into shed 1 to take photographs and had not actually gone into the free range yard. He said he could only see part of the free range yard. I prefer the evidence of Mr Milne.
Mr Knight, who is an insurance broker, and also Mr Cocking’s niece’s fiancée, said that he had seen what he estimated to be thousands of hens in the open range. Mr Knight did not profess to having any expertise in chicken farming or in counting chickens. I find his estimates to be unreliable. There is another reason for rejecting Mr Knight’s evidence. Mr Knight said he had seen thousands of chickens on each of his three visits to the Swan Valley farm. Mr Knight said that he visited in 2011, 2012 and 2013 to arrange insurance coverage for Snowdale. In cross-examination, Mr Knight said that he visited the farm in mid-April 2011 and saw hens outside at that time. It was common ground that there were no hens in the open range adjacent to shed 1 at that time. I prefer the evidence of Mr Milne.
Ms Emilia Cocking said that in 2011, after the hens were put into shed 1, she would look out into the free range yard in the mornings. She said the hens gathered around a little shaded area that had been built for them in the free range yard. Further, Ms Emilia Cocking said that she estimated seeing 1,000 to 2,000 hens outside on each and every occasion that she was at shed 1 during the period January 2012 to December 2012. She said that during that time she and her sister, Ms Ellah Cocking, went into the free range yard once a week until June 2012. Ms Emilia Cocking said that she saw the same number of hens on the free range yard when she was at the Swan Valley farm during the period January 2013 to September 2013.
Ms Emilia Cocking said that when she and her sister scattered wheat around on the free range paddock, lots of chickens would run to them and stand at their feet and peck at the wheat they had thrown on the ground. There was attached to Ms Emilia Cocking’s affidavit, a photograph (EKC-2) showing Ms Ellah Cocking standing in range A in March 2013 with a number of chickens around her. Ms Emilia Cocking said that she estimated that there were between 1,000 to 2,000 chickens outside each time they fed the chickens in 2013. Ms Emilia Cocking said in cross-examination, that the photograph represented a fair representation of the number of chickens that were in the free range area when she and her sister fed the chickens. While the photograph does not reflect the whole of the range A area, it reflects a substantial part of the range area and includes the area where Ms Emilia Cocking said that the hens gathered. The number of hens in that photograph is very substantially less than a thousand hens. I prefer the evidence of Mr Milne to the evidence of Ms Emilia Cocking.
Mr Holmes gave evidence that he saw at least a thousand hens in total wandering in the free range yard at Swan Valley. I place no weight on this evidence. Mr Holmes does not identify how many visits he made to the Swan Valley farm and when those visits occurred.
Mr Green, in his evidence, stated that he observed what he estimated to be between 40% to 50% of the flock outdoors at the Swan Valley. This would, in a flock of 12,000 hens, amount to between 4,800 to 6,000 hens being outside at any one time. I have already stated I would approach the evidence of Mr Green, for the reasons given, with considerable caution. I, therefore, prefer the evidence of Milne.
Ms Wolpers gave evidence that in June 2011, while filming for a school project, she saw 1,000 chickens in the free range yard at Swan Valley. Ms Wolpers said that between 19 December 2011 and 7 January 2012, she and her mother stayed at Mr and Mrs Cockings’ house on the farm, and she walked around the Swan Valley farm and each time she looked in the free range yard she estimated that there were about “1,000 and 2,000 chickens” in that yard. She also said that in about June 2011, she filmed Ms Ellah Cocking at the Swan Valley farm talking about free range eggs. Ms Wolpers said that Ms Cocking was standing in the free range paddock and the chickens were in the background. Ms Wolpers said, on that occasion, she thought she saw 1,000 chickens. Under cross-examination, Ms Wolpers stated that she had seen chickens outside at Swan Valley in April 2011. As mentioned, it is common cause that there were no free range chickens at Swan Valley in April 2011, nor indeed were there free range chickens in the Swan Valley yard in June 2011, when Ms Wolpers said she had filmed Ms Ellah Cocking with the chickens. I prefer the evidence of Mr Milne.
It follows that I find that the maximum number of hens that went outside shed 1 at the Swan Valley and moved about freely on the open range, during the relevant period, was, on an ordinary day (within the meaning pleaded by the ACCC), 600 hens, being the estimate provided by Mr Milne.
CONCLUSION
Section 18(1) of the ACL
I now consider whether, based on the findings I have made, Snowdale in the relevant period engaged in misleading or deceptive conduct or conduct which is likely to mislead or deceive, in contravention of s 18(1) of the ACL.
I should preface my findings by saying that because this is a proceeding in which the ACCC seeks declarations, injunctions and penalties, the consequences for Snowdale are serious. I have, therefore, approached the factual findings that I have made on the basis that s 140 of the Evidence Act 1995 (Cth) applies. Applying that approach, I observe that the evidential foundation for the factual findings I have made has enabled me to be comfortably satisfied, or to put it another way, to feel “an actual persuasion”, as to the factual findings made. (See, Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.)
First, as I found above Snowdale made the free range representation.
Secondly, it is plain that Snowdale’s conduct in making the free range representation was conduct in trade or commerce. No one contended to the contrary.
Thirdly, I find that the free range representation made by Snowdale was false. This is because the ACCC has established, on a balance of probabilities, that most of the hens in each of sheds 5, 6, 7 and 8 at Carabooda and shed 1 at Swan Valley did not, during the relevant period, move around freely on an open range on most days; and that this circumstance arose because the ability of the hens to move around freely on an open range was significantly inhibited by the combination of the four farming conditions, namely, the number of pop holes, the number of birds per metre of pop hole, flock size and shed size, identified by Dr Freire in [326] above.
There are two bases which are interrelated for coming to this view, namely, the evidence of Dr Freire, and the evidence of a number of the eye witnesses.
As I have said, I accept the evidence of Dr Freire that a combination of the farming conditions which he identified meant that it was highly unlikely that most of the hens in shed 1 at Swan Valley, and in sheds 5, 6, 7 and 8 at Carabooda, whether before, or after October 2013, would have gone out of the sheds and moved around freely on the open range on an ordinary day. I have also accepted the estimate made by Dr Freire that, by reason of the farming conditions, about 4% of the flock may have been expected to be on the open range at any one time and that an appropriate multiplier to apply in determining the percentage of the hens which were likely to roam around freely on an open range on an ordinary day, was between two and five.
I deal first with the position at Carabooda.
On the application of the estimates made by Dr Freire the following circumstances arise.
In respect of the relevant period, up to October 2013, and assuming a flock size of 17,000 hens, the number of hens to be expected to be outside on an open range at any one time would be about 680 hens, and this would lead to an estimate of between 1,360 to 3,400 hens exiting the shed and roaming freely on an open range on an ordinary day. In respect of shed 5, which I have found was restocked in July 2013 with 12,040 hens, the estimate would be approximately 480 hens on an open range at any one time, leading to an estimate of between 960 to 2,400 hens exiting the shed and roaming freely on an open range on an ordinary day.
In respect of the period after October 2013, the position would have been slightly different with an increase in Dr Freire’s estimate to about 4.6% of the flock that may be expected to be on an open range at any one time on an ordinary day. On the application of that estimate, and the multiplier, to a flock of 17,000 hens, between about 1,560 to 3,900 hens would have been expected to have exited the sheds and moved freely on an open range on an ordinary day. In respect of a flock of 11,819 hens, being the lowest flock size pleaded by Snowdale, the number of hens expected to have exited the sheds and roamed freely on an outdoor range on an ordinary day would be between about 1,090 to 2,720 hens.
The consequence is that on the application of the estimates made by Dr Freire that the farming conditions in combination were such that most of the hens were not able to and did not move around freely on an open range on most days.
Mr Grogan, whose evidence I have accepted, estimated that the maximum number of hens that he saw outside at any one time would have been about 300. If one then applies the multiplier to Mr Grogan’s estimate, the maximum number of hens that may have been expected to have roamed freely on an outdoor range on an ordinary day, would have been between 600 and 1,500. That number of hens is substantially less than half of even the smallest flock size pleaded by Snowdale, namely, 11,819 hens in shed 5 on the last day of the relevant period.
I also observe that a substantial number of the witnesses who saw hens on the outdoor ranges at Carabooda, gave evidence which would be consistent with Dr Freire’s estimate of the number of hens which would have been expected to have roamed freely on an open range at any one time on an ordinary day.
I find, accordingly, that most of the hens in each of sheds 5, 6, 7 and 8 at Carabooda did not move around freely on an open range on most days.
I now deal with the farming conditions at shed 1 at Swan Valley. I have found that, throughout the relevant period, shed 1 was stocked with a minimum of 12,000 hens.
In applying Dr Freire’s estimate and multiplier the following circumstances arise. About 480 hens would have been expected to exit the shed and move around freely on the open range at any one time on an ordinary day, and about 960 to 2,400 hens would have been expected to roam freely on the open range on an ordinary day.
The consequence is that on the application of the estimates made by Dr Freire that the farming conditions in combination were such that most of the hens were not able to and did not move around freely on an open range on most days.
In respect of the eye witness evidence, I have accepted the evidence of Mr Milne as being the most reliable estimate. On the application of the multiplier to 600 hens, being the maximum number of hens which Mr Milne estimated as having seen outside shed 1 at any one time, the number of hens that may be expected to have exited shed 1 and to have roamed freely on the open range on an ordinary day is between 1,200 and 3,000 hens. This number of hens is also substantially less than half of the flock size of 12,000 hens housed in shed 1.
Accordingly, I find that most hens did not exit shed 1 at Swan Valley and roam freely on an open range on most days.
I also find on the basis of the evidence of Dr Freire, that the circumstance referred to at [508] and [513] above, occurred by reason of the combination of farming conditions referred to by Dr Freire at [326] above, which significantly inhibited the ability of the hens to exit sheds 5, 6, 7 and 8 at Carabooda and shed 1 at Swan Valley, and roam around freely on an open range on an ordinary day. For the avoidance of doubt, my reference to on an “ordinary day”, is a reference to the term as pleaded by the ACCC.
It follows that I find that the free range representation made by Snowdale was false and, therefore, was misleading or deceptive or likely to mislead or deceive.
I also find that there is a direct nexus between the falsity of the free range representation and the error induced in the minds of a substantial number of consumers to whom the free range representation was addressed.
Accordingly, I find that by supplying, and causing to be supplied, eggs in cartons containing the labels referred to in [65] to [82] above, by publishing the website referred to at [83] and [84] above and publishing the poster referred to at [89] above, Snowdale, during the relevant period, contravened s 18(1) of the ACL.
Section 29(1)(a) of the ACL
Section 18(1) of the ACL proscribes a person from engaging in conduct which is misleading or deceptive or likely to mislead or deceive. Section 29(1)(a) of the ACL proscribes a person from making, in connection with the supply, or promotion of the supply of goods, a “false or misleading representation” that, relevantly, the goods are of a particular quality or have had a particular history. There is no relevant distinction between the words “misleading or deceptive” or “likely to mislead or deceive” or a “false or misleading representation”. (See, Coles at [40].) This is particularly so, in this case, where the contravention of s 18 alleged by the ACCC, is the making by Snowdale of a false or misleading representation.
Accordingly, the reasoning, and the conclusions to which I have come, in considering whether Snowdale contravened s 18(1) of the ACL also applies mutatis mutandis to the question of whether, within the meaning of s 29(1)(a) of the ACL, Snowdale made a false or misleading representation when it made the free range representation.
There are two further questions which need to be considered in relation to determining whether the free range representation made by Snowdale contravened s 29(1)(a) of the ACL.
The first question, is whether the free range representation made by Snowdale, is to be classified as a representation that the eggs supplied in the free range egg cartons were of a particular quality. In the case of Australian Competition and Consumer Commission v C.I. & Co Pty Ltd [2010] FCA 1511 (C.I. & Co Pty Ltd) at [16], North J observed, in relation to s 53(a) of the Trade Practices Act, the predecessor section to s 29(1)(a) of the ACL:
In relation to s 53(a) of the Act, the question arises whether the free range label constitutes a representation that the eggs were of a particular standard or quality. I agree that the free range representation is a representation as to quality. The representation suggests that the eggs are produced by a more humane environment for the laying hens and that consumers might regard free range eggs as having a different quality, that is to say, a different circumstance of production.
In my view, North J’s observations are applicable to this case. Further, Snowdale made no submission to the effect that the free range representation, if proved, would not be a representation that the eggs supplied in the free range egg cartons were of a particular quality.
I find that the free range representation was a representation as to quality within the meaning of s 29(1)(a) of the ACL.
The second question, is whether the free range representation is to be classified as a representation that the eggs supplied by Snowdale in the free range egg cartons, have a “particular history”. In my view, the free range representation is to be so classified because the representation is to the effect that the eggs in the cartons are eggs which have been laid by hens that have been raised in particular farming conditions; namely, conditions such that most hens roam freely on an open range on most days.
It follows, therefore, that I find that, in making the free range representation in the circumstances which I have found above, Snowdale also contravened s 29(1)(a) of the ACL.
Section 33 of the ACL
Section 33 proscribes a person from engaging in conduct that is “liable to mislead the public” as to, relevantly, the nature and characteristics of the goods supplied.
There is a difference between the language used in s 18 and the language used in s 33 of the ACL, in that s 33 proscribes a person from engaging in conduct that is “liable to mislead the public”, whereas s 18 proscribes a person from engaging in conduct which is misleading or deceptive or likely to mislead or deceive. In Coles at [44], Allsop CJ observed that the difference was that s 33 applied to a narrower range of conduct than the conduct referred to in s 18, and what was required under s 33, was that there be an “actual probability that the public would be misled”.

Snowdale contended that s 33 had no application to the circumstances of this case because the free range representation, if proved, was not liable to mislead the public as to the nature or characteristics of the eggs supplied by Snowdale in the free range egg cartons. Snowdale relied upon the observations of Tracey J in Turi Foods (No 4) at [124] to [129]. In that case, Tracey J was dealing with s 55 of the Trade Practices Act, the predecessor section to s 33 of the ACL. Snowdale relied particularly upon the following observations of Tracey J at [127] and [128]:
127In the context of s 55 the nature and characteristics of goods are to be identified by reference to their internal constitution or utility rather than the manner of their creation. Section 55 will thus be contravened, for example, if it is represented that 35% of liquid in a container is fruit juice when the truth is that juice comprised only 17% of the contents: cf Trade Practices Commission v Glo Juice Company Pty Ltd (1987) 73 ALR 407. Similarly, a contravention will occur if a manufacturer advertises that children’s car seats conform in their structure with a particular Australian standard: cf Temperley v Playground Supplies Pty Ltd (1980) 3 TPR 506. A contravention will also occur if a false representation is made about the operational capacity of goods. Thus, in Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646, it was conceded that s 33 of the ACL had been contravened when the manufacturer of an iPad advertised that its product could be connected to the 4G network in Australia when the contrary was true.
128The “free to roam” representations did not relate to the inherent qualities of the chickens. They related to the circumstances in which the chickens were raised. There was, as the respondents submitted, no evidence to link those circumstances with any inherent quality such as taste or fat content of any processed chickens which were marketed by producers or processors.
Tracey J, therefore, found that there had been no contravention of s 55 of the Trade Practices Act.
Snowdale submitted that the free range representation did not go to the “internal constitution” of the eggs sold by Snowdale and, therefore, s 33 had no application in this case.
The ACCC, however, contended that there was a difference in the authorities on the meaning to be given to the word “characteristics” in the context of the application of s 33 to representations about eggs. The ACCC relied upon the following observations of North J in C.I. & Co Pty Ltd at [17]:
The agreed facts also establish that the first respondent’s conduct was in breach of s 55 of the Act. One issue addressed by the applicant in its submissions is the question whether the representation that the eggs were free range eggs was conduct liable to mislead the public as to the nature or characteristics of the eggs within the terms of s 55. The representation concerns the method of the production of the eggs, or the environment in which the eggs were produced. These matters describe the characteristics of the eggs, namely, the circumstances in which they were produced. I prefer the view that the representation was liable to mislead as to the characteristics rather than the nature of the eggs.
The ACCC also relied upon the observations of Lander J in Australian Competition and Consumer Commission v Bruhn [2012] FCA 959 (Bruhn) which were to similar effect as the observations of North J in C.I. & Co Pty Ltd. In Bruhn, the misleading conduct was that the respondent had described caged eggs as “free range” eggs.
Further, the ACCC referred to the decision of Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028. This was a case, where, as in C.I. & Co Pty Ltd and Bruhn, there were agreed sets of facts, and the respondent had admitted that in advertising and selling its eggs as free range eggs when they were not, it had engaged in conduct that was liable to mislead the public as to the nature or characteristics of the eggs in contravention of s 33 of the ACL. Flick J observed that the admissions had been properly made.
It is apparent that the balance of authority favours a wider meaning of the word “characteristics” of goods in s 33, at least when applied to eggs, than that favoured by Tracey J in Turi Foods (No 4). It is to be observed that each of the cases to which Tracey J referred in [127] in support of the narrower construction, referred to a man-made product, namely, fruit juice, a child’s seat and a tablet computer.
In my respectful view, the ambit of the word “characteristics” when applied to goods in s 33 is flexible and can, in certain circumstances, be given a wider meaning than the meaning of “internal constitution” or “utility”, referred to by Tracey J. Thus, in respect of a natural product such as an egg, where there is a differentiation in the market place by reference to the conditions in which the hens that laid the eggs were kept, the word “characteristics”, can have a meaning other than the “internal constitution” or “utility” of the egg. For that reason, I prefer to follow the weight of the authority on this question.
Accordingly, I find that the free range representation was a representation which related to the characteristics of the eggs which Snowdale sold in the free range egg cartons.
I also find that the free range representation was made in the context where there was an actual probability that the parties, being a substantial number of consumers, would be misled. This is because the product is a staple food and is available for purchase from a wide range of retailers. Otherwise, the findings that I have made in considering whether there was a contravention of s 18(1) of the ACL, mutatis mutandis, apply.
I, accordingly, find that by making the free range representation in the circumstances alleged by the ACCC, Snowdale contravened s 33 of the ACL.
I will hear the parties at a date to be fixed in relation to the appropriate orders and penalties attendant upon the findings made in these reasons for judgment.

I certify that the preceding five hundred and thirty-nine (539) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
Associate:
Dated: 18 May 2016
Annexure 1
Annexure 2
Annexure 3
Annexure 4
Annexure 5
Annexure 6
Annexure 7 Part 1
Annexure 7 Part 2
Annexure 8 Part 1
Annexure 8 Part 2
Annexure 9 Part 1
Annexure 9 Part 2
Annexure 9 Part 3
Annexure 9 Part 4
Annexure 10

File number(s):	WAD 462 of 2013
Judge(s):	SIOPIS J
Date of judgment:	18 May 2016
Catchwords:	CONSUMER LAW – eggs were sold and marketed as “free range eggs” – hens housed in very large sheds with pop holes – whether the conditions in which the laying hens were found inhibited the ability and propensity of the hens to move around freely on an open range – whether most hens moved around freely on an open range on most days – whether the conduct of the respondent was misleading or deceptive or likely to mislead or deceive in describing the eggs laid by hens farmed in the prevailing conditions as “free range eggs” – whether the respondent contravened ss 18, 29 and 33 of the Australian Consumer Law.
Legislation:	Australian Consumer Law ss 18, 18(1), 29(1)(a), 33, 219(2) (Sch 2 of the Competition and Consumer Act 2010 (Cth)) Competition and Consumer Act 2010 (Cth) ss 155(1)(b), 155(1)(c) Evidence Act 1995 (Cth) s 140 Trade Practices Act 1974 (Cth) ss 55, 53(a)
Cases cited:	Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 CPA Australia Ltd v Dunn (2007) 74 IPR 495 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73 Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] FCA 665 Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Competition and Consumer Commission v C.I. & Co Pty Ltd [2010] FCA 1511 Australian Competition and Consumer Commission v Bruhn [2012] FCA 959 Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028
Date of hearing:	8-10, 13-17, 20, 22, 24 April and 20 May 2015
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	539
Counsel for the Applicant:	Ms G Archer SC and Mr W Keane
Solicitor for the Applicant:	Norton Rose Fulbright
Counsel for the Respondent:	Mr P McGowan
Solicitor for the Respondent:	Hotchkin Hanly Lawyers