• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

REASONS FOR JUDGMENT 1 The Australian Competition and Consumer Commission ("the ACCC") filed a Fast Track statement in this proceeding on 5 September 2011. 2 The fourth respondent is the Australian Chicken Meat Federation Inc. ("the ACMF"). It is the peak body of the Australian chicken meat industry and represents meat chicken breeders, growers, processors and suppliers. 3 The ACCC alleges that the ACMF has published on its website various statements which constitute representations to the effect that meat chickens, which are raised or grown in a shed system in Australia, are raised or grown in large sheds in which the chickens have substantial space available, allowing them to roam around freely. Precisely what is meant by phrases such as "substantial space available" and "roam around freely" are matters which are open to competing constructions. 4 The ACCC alleges that the ACMF's so-called "free to roam" representation contravened ss 52, 53(a) and 55 of the Trade Practices Act 1974 (Cth) ("the TP Act") and, after 1 January 2011, the equivalent provisions of the Australian Consumer Law. This is because some or all of the chickens grown by the other respondents are covered by the representation and are reared in such densities that they do not, as a practical matter, have substantial space available to roam around freely. 5 The information relating to the densities has been provided by the other respondents, pursuant to demands made by the ACCC, pursuant to s 155 of the TP Act. 6 By interlocutory application filed on 23 November 2011 the ACMF seeks an order pursuant to r 26.01(1)(c) of the Federal Court Rules 2011 ("the Federal Court Rules") that the proceeding against it be dismissed because no reasonable cause of action is disclosed. 7 Further or alternatively, it seeks an order pursuant to r 26.01(1)(a) of the Federal Court Rules that the proceeding against it be dismissed because the ACCC has no reasonable prospect of successfully prosecuting its claims. 8 In the alternative, the ACMF seeks an order that the ACCC provide particulars of the claims by it in paragraph 47 of the amended Fast Track statement, and an order that the orders made in the proceeding by Gordon J on 26 October 2011 be varied, so as to permit the ACMF to put on its evidence within seven days of the date of the determination of its interlocutory application. 9 The ACCC resists the making of orders dismissing the proceedings and requiring it to provide particulars, but is prepared to consent to orders enlarging the time within which the ACMF might put on its evidence. 10 The ACMF contends that the evidence of chicken density in sheds is incapable of establishing that the free to roam representation is false or misleading. It contends that a statement of average space, that is the space of the shed divided by the number of chickens in it, is incapable of establishing that the space available to any one chicken is so limited as to affect its ability to move around. The evidence establishes that the average space available to each chicken is about 500 centimetres squared. There is, as yet, no evidence as to the average size of each chicken, although the ACCC says that it is in a position to provide evidence about this matter should agreement not be able to be reached. 11 Certainly, the ACMF would be in a position to ascertain, if it does not already know, the average size of chickens in the sheds of the other respondents at various stages of their development. The ACCC contends that 500 centimetres squared is such a small area as to support an inference that the free to roam representation is false and misleading. 12 The Court's powers summarily to terminate a proceeding must always be exercised with caution: see Spencer v Commonwealth (2010) 241 CLR 118 at 131. It is not necessary for an applicant to establish that its opponent's case is hopeless or bound to fail. Where, however, there is a real - as distinct from a fanciful - issue of fact or law to be decided, the proceeding should go to trial: see Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [44]. 13 This, in my view, is such a case. It is not possible, at this stage, to conclude that the ACCC has no reasonable prospect of proving its case at trial. Matters of fact and degree are involved. So too are issues about how members of the community, who read the advertisements or statements containing the impugned representations, would reasonably interpret them. 14 Five hundred centimetres squared is a remarkably small space. In order for any one chicken to have a larger area of movement, others would have to be confined within an even smaller space. It cannot, in my view, be said that, on this evidence alone, the inference sought by the ACCC cannot reasonably be drawn: see Jefferson Ford Proprietary Limited v Ford Motor Company of Australia Limited (2008) 167 FCR 372 at 409. 15 If, as ACMF's submissions imply, space additional to that available in particular sheds is available, it will be open to ACMF or other respondents at trial to adduce such evidence. If such evidence is led, it may assist ACMF's defence. No such evidence has yet been adduced. 16 I do not consider that any further particulars are necessary. The ACCC has, in its submissions opposing summary judgment, adequately set out the case it proposes to make at trial against the ACMF. 17 I will direct that the ACMF put on its evidence on or before 16 December 2011. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.