Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd

Federal Court of Australia|2011-02-10|Before: Mr J, Finkelstein J

The first respondent is guilty of contempt by reason of its breaches of the undertaking it gave to the Federal Court of Australia on 27 August 2009.
The second respondent is guilty of contempt by reason of his breaches of the undertaking he gave to the Federal Court of Australia on 27 August 2009.

THE COURT ORDERS THAT: For the purposes of these orders, the following definitions apply: (a) "allergy" or "allergies" means a physical hypersensitivity in an individual to certain substances which are normally harmless such as pollen, foods and fruits and which produces an allergic reaction in that individual and which may be initiated by: (i) contact with the skin; (ii) inhalation; (iii) ingestion; or (iv) injection; (b) "allergen" means a substance which elicits an allergic reaction in an individual; and (c) "allergic reaction" means an immunological process of specific allergen recognition and pathological response. Fines 3. The first respondent be fined in the sum of $7500, such sum to be paid within 90 days. 4. The second respondent be fined $7500, such sum to be paid within 90 days. Injunctions and undertakings 5. The undertaking given by the first respondent on 27 August 2009 be and it hereby is discharged. 6. The undertaking given by the second respondent on 27 August 2009 be and it hereby is discharged. 7. The first respondent be and it hereby is restrained for a period of three years, whether by itself, its directors, servants, agents or otherwise, in trade or commerce, from making, publishing or causing to be made or published in any form whatsoever, representations to the effect that: (a) it can accurately test for and identify an allergen for a person and/or a substance which causes a person's allergic reaction; (b) it can cure or eliminate, or successfully treat, any allergies or any allergic reactions; (c) its treatment for a person's allergies or allergic reactions is safe and/or low risk; (d) after its treatment of a person's allergies or allergic reactions it is safe for that person to have contact with the allergen to which the person had an allergic reaction; and/or any representations to the same or similar purport or effect. 8. The second respondent be and he hereby is restrained for a period of three years from being directly or indirectly knowingly concerned in, or a party to, the conduct of the first respondent or any other corporation whereby the first respondent or the other corporation whether by itself, its directors, servants, agents or otherwise, in trade or commerce, makes any representation to the effect that: (a) it can accurately test for and identify an allergen for a person and/or a substance which causes a person's allergic reaction; (b) it can cure or eliminate, or successfully treat, any allergies or any allergic reactions; (c) its treatment for a person's allergies or allergic reactions is safe and/or low risk; (d) after its treatment of a person's allergies or allergic reactions it is safe for that person to have contact with the allergen to which the person had an allergic reaction; and/or any representations to the same or similar purport or effect. Corrective advertising 9. Within 14 days the first respondent, at its own expense, publish a notice in the terms and form of Annexure 1 to these orders, which notice is to be affixed on the front counter and/or the point of sale at each of the clinics operated by the first respondent for a continuous period of 90 days and in a manner such that the notice is not obscured. 10. Within 21 days the first respondent, at its own expense, cause a notice in the terms and form of Annexure 2 to these orders to be published on all websites and Twitter and Facebook pages which are owned, operated, controlled or maintained by or on behalf of the first respondent for a continuous period of 90 days and ensure that: (a) the notice is viewable by clicking a 'click-through' icon located on the websites and Facebook and Twitter pages; (b) the 'click-through' icon is located at the top of the homepage of the websites and Facebook and Twitter pages; (c) the 'click-through' icon contains the words "False and Misleading Conduct and Contempt of Court by Allergy Pathway - Corrective Notice Ordered by Federal Court of Australia" prominently in red text on a black background and the words "click here"; and (d) the notice occupies the entire page that is accessed via the "click-through" icon referred to above. 11. Within 21 days the first respondent, at its own expense, publish and distribute (whether electronically or otherwise) a letter in the terms and form of Annexure 3 to these orders to all persons who are the first respondent's customers at the date of this order or who were customers of the first respondent during the period 27 July 2010 to the date of this order. Costs 12. The first and second respondents pay the applicant's costs of and incidental to the notice of motion filed 23 September 2010 on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. ANNEXURE 1 INFORMATION NOTICE An important message from Allergy Pathway Pty Ltd (formerly Advanced Allergy Elimination Pty Ltd) Allergy Pathway and its Director guilty of contempt of Court in connection with false, misleading and deceptive conduct Following action by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia declared that Allergy Pathway Pty Ltd, formerly Advanced Allergy Elimination Pty Ltd (Allergy Pathway) and its Director, Mr Paul Keir are guilty of contempt of Court. The Court found that Allergy Pathway and Mr Keir had breached undertakings they had given to the Court in August 2009 that they would not make representations which the Court had found to be false, misleading and deceptive and in contravention of the Trade Practices Act 1974 (the TPA). Allergy Pathway made the offending representations in relation to its ability to diagnose and treat allergies. Initial false, misleading or deceptive conduct Between 8 July 2008 and 10 July 2009, Allergy Pathway (then Advanced Allergy Elimination Pty Ltd or AAE) made the offending representations in statements published and adopted on its then website at , in brochures and a DVD it published and provided to consumers and in advertisements it caused to be published in newspapers, magazines and on the radio. In August 2009, the Court declared that AAE had contravened the TPA because the following representations it made prior to changing its name to Allergy Pathway were either not true or were misleading or deceptive:

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 361 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

AND: ALLERGY PATHWAY PTY LTD (FORMERLY ADVANCED ALLERGY ELIMINATION PTY LTD)

JUDGE: FINKELSTEIN J DATE: 10 FEBRUARY 2011 PLACE: MELBOURNE

The application 1 The applicant, the Australian Competition and Consumer Commission (ACCC), moves to punish the first respondent, Allergy Pathway Pty Ltd, and its sole director, the second respondent, Mr Keir, for contempt for having breached undertakings given to the Court on 27 August 2009.

Background 2 Allergy Pathway operates clinics for the diagnosis and treatment of allergies. The methods it uses for testing for allergies include a "muscle strength indicator" technique. Its treatment methods include a technique based on "positive and negative conditioning". The means by which Allergy Pathway provides information about its services include posts on its website, Facebook and Twitter pages. It also advertises its services on the radio, in newspapers and in brochures distributed to clients, prospective clients and other interested persons. 3 In early 2009 the ACCC brought an action against the respondents alleging that Allergy Pathway had contravened ss 52, 53(aa), 53(c) and 55A of the Trade Practices Act 1974 (Cth) (TPA). Those sections proscribe misleading or deceptive conduct, falsely representing that services are of a particular standard or quality, representing that services have benefits which they do not have, and engaging in conduct that is liable to mislead the public. It was alleged that Allergy Pathway had in a variety of publications falsely represented that (a) it could test for allergens; (b) it could cure or eliminate virtually all allergies or allergic reactions; (c) it could successfully treat a person's allergies or allergic reactions; (d) its treatment of persons with allergies was safe and/or low risk; and (e) it was safe to have contact with a substance or allergen to which the person had an adverse reaction after Allergy Pathway's treatment. It was also alleged that Mr Keir was "involved" in Allergy Pathway's contraventions within the meaning of s 75B of the TPA. 4 To make good its claim the ACCC tendered a report by Professor Douglass, the Head of the Allergy Asthma and Clinical Immunology Service at the Alfred Hospital. In that report Professor Douglass made the following general observations which are relevant to this application: Whilst there are proven methods of successful desensitization of individuals with allergic disease by incremental exposure to allergens, known as desensitization or 'immunotherapy', these methods do entail the risk of inducing a generalized allergic reaction and have not been shown to be successful in general medical practice with respect to food allergies. In the conventional medical literature, fatalities have been reported due to immunotherapy for both inhalant and food allergies. The statement that patients with true allergies can initiate contact with the substance that had previously caused the allergic reaction will, in my opinion if followed, expose some individuals to the risk of severe allergic reaction or even death. … Allergen immunotherapy is the only form of treatment which can alter the natural history and immunological parameters of allergic disease. By this I mean that the natural progression of allergic diseases appear to be altered by the administration of allergen immunotherapy. For example there is good evidence that the risk of severe allergic reactions to insect stings can be reduced by immunotherapy. … The scientific concept of allergens, their properties and identification is not consistent with the AAE statement 'Successful elimination of allergies/sensitivities may require clearing of preliminary allergens first. If components of allergens are not cleared the items containing those compounds will remain allergenic.' … Medically valid treatments for allergy include drug treatments and allergent specific therapies such as allergen immunotherapy. The use of these treatments is described in evidence-based guidelines such as the ARIA consensus document (Allergic Rhinitis and its Impact on Asthma), the Global Initiative in Asthma (GINA) consensus document and guidelines on immunotherapy. During the course of my practice, I have not been made aware of a medically validated therapeutic process of 'positive conditioning' or 'negative conditioning' with regard to allergies. I am therefore unaware of 'positive conditioning' and 'negative conditioning' as an effective form of allergy treatment. I am aware that 'positive conditioning' and 'negative treatment' does not form part of the body of authoritative treatment guidelines for allergic diseases. In my opinion I do not believe the scientific literature has information to support 'positive conditioning' or 'negative conditioning' treatments to cure or eliminate allergies. … I am not aware of the muscle strength testing as a medically validated test for allergy, nor is it recommended in international consensus treatment and diagnosis guidelines. … As a clinical practitioner in the field of allergy for over 18 years I am not aware of acupressure or muscle testing being used in Australia or internationally to effectively treat allergies by medical practitioners. … The categories of allergens claimed to be treated by AAE include contactant, inhalant, ingestant and injectant. I am not aware of effective strategies of allergen immunotherapy for contactant allergies. I have stated previously the difficulties in treating ingestant allergies. I am unable to verify the statements claiming cure or improvement of allergies through the Allergy Elimination Technique. I do not believe there is published scientific evidence to support these claims. … [I]ndividuals with true allergic disease could be harmed by this treatment. Many of the symptoms claimed to be relieved in the AAE publicity brochures, such as irritable bowel syndrome, diarrhoea and attention deficit disorder are unlikely due to an allergic process and therefore unlikely to have an immunological basis. However the brochures do state that 'ingestant' allergies can be eliminated. I take this to mean food allergies. At the current time to my knowledge, there is no safe, scientifically-based treatment for food allergies. … I am concerned by claims that AAE can treat wheezing and asthma. In my own and international experience, there is currently no known cure for asthma, which still carries a very substantial burden of illness which includes mortality. (emphasis added) 5 The action against the respondents was heard on 27 August 2009. At that time the respondents did not contest the ACCC's allegations. Accordingly, based on the evidence the ACCC tendered about the publishing of the statements plus Professor Douglass' report I made declarations of contravention and orders requiring Allergy Pathway to publish corrective advertising and to implement a trade practices compliance program. To make unnecessary the grant of permanent injunctions, the respondents proffered undertakings in the following terms: 1. The First Respondent, by its Counsel, undertakes to the Court that it will not, whether by itself, its directors, servants, agents or otherwise howsoever, in trade or commerce, for a period of 3 years from the date of the orders herein, make or publish or cause to be made or published, in any internet website, radio, television or newspaper advertisements or brochures or other written promotional material published or caused to be published by it, statements that represent: (a) it can accurately test for and identify an allergen for a person and/or a substance which causes a person's allergic reaction; (b) it can cure or eliminate, or successfully treat, any allergies or any allergic reactions; (c) its treatment for a person's allergies or allergic reactions is safe and/or low risk; or (d) after its treatment of a person's allergies or allergic reactions it is safe for that person to have contact with the allergen to which the person had an allergic reaction. 2. The Second Respondent, by his Counsel, undertakes to the Court that he will not, for a period of 3 years from the date of the orders herein, be in any way directly or indirectly, knowingly concerned in, or a party to, the conduct of the First Respondent or any other corporation whereby the First Respondent or the other corporation whether by itself, its directors, servants or otherwise howsoever, in trade or commerce, makes or publishes or causes to be made or published statements that represent any of the matters in (a) to (d) of paragraph 1 above. 6 On one view the words "any allergies" and "any allergic reactions" in undertaking 1(b) are a little unclear. A fair reading, however, leads to the conclusion that they mean "any allergy or allergic reaction" no matter what type. The words would have been so understood by the respondents, and it was not suggested otherwise.

The alleged breaches of the undertakings 7 The ACCC alleges that Allergy Pathway breached the undertaking it gave to the Court on 35 separate occasions and that Mr Keir breached his undertaking by being a party to Allergy Pathway's breaches. Accordingly it is put that each respondent is in contempt of court. 8 The alleged contempts are constituted by publications. The publications can be grouped into several categories: (1) statements and links to statements posted by Allergy Pathway on its website and Facebook and Twitter pages and in a video posted on YouTube and embedded on its Facebook and Twitter pages; (2) testimonials written by clients and posted by Allergy Pathway on its website and Facebook and Twitter pages; (3) testimonials written and posted by clients on Allergy Pathway's Facebook "wall"; and (4) Allergy Pathway's responses to queries posted by members of the public on its Facebook wall. 9 The statements the subjects of complaint are set forth in the Schedule to these reasons. For purposes of understanding these reasons it is sufficient if I here recite only some of those statements. 10 The following are examples from category (1): • "What is ALLERGY PATHWAY? A non-invasive, drug-free means to address adverse reactions such as allergies, intolerances and sensitivities"; • "ALLERGY PATHWAY uses a form of muscle response testing to help identify what the body may be reacting to"; and • "We believe that this positive conditioning effect retrains the body to no longer perceive the substance as something that is harmful". 11 The following are examples from categories (2) and (3): • "My asthma and eye symptoms no longer happen after my treatment"; • "Allergy Pathway is amazing. It has worked wonders for me in so many ways. I had food allergies for as long as I can remember, avoiding seafood and shellfish and even bread! After one treatment I could eat seafood with no noticeable reaction … [name], Medical Practitioner"; and • "As a practicing naturopath, I have found this technique to be the most effective method of treating allergic reactions and intolerances". 12 Finally, the following is an example from category (4): • [name] posted: I have recently become a fan and am curious if the treatment may be able to cure food allergy??? For years I have loved and eaten eggs, not realising that they were the cause of my upset stomach. The funny thing is that while I was pregnant, I could eat eggs without a problem. Response by Allergy Pathway: In response to your question, we have many clients who visit our clinic with troublesome egg reactions. Food reactions can contribute to digestive symptoms such as bloating, gas, diarrhoea and cramping. We take a detailed client history, and we ask clients if they suspect any substances because they are usually right. After identifying what substances you are reacting to, using our muscle testing technique, we address those substances using our non-invasive, positive conditioning technique. The treatments we do here may be able to ease your digestive symptoms. :) 13 The respondents concede that the statements that fall into categories (1), (2) and (4), or at least most of those statements, breach the undertakings. The category (3) statements are controversial. It will be recalled that these were posted by others on Allergy Pathway's Facebook wall. The question is whether Allergy Pathway can be made responsible for them. To answer this question it is necessary, first, to say something about Facebook and, for completeness, about Twitter.

Facebook and Twitter 14 Facebook is a social networking application. Facebook's website states that "people use Facebook everyday to keep up with friends, upload an unlimited number of photos, share links and videos, and learn more about the people they meet". 15 Most Facebook users have a "profile". A user's profile is the page that third parties see when they look up the user on Facebook. A user's profile is divided into several parts. One prominent part is the user's "wall", which is a space that allows people to post messages for the user. Facebook's website describes the wall as "a place to post and share contents with your friends". Only those people who the user has accepted as a friend can post on the user's wall. A user is able to delete messages posted by friends on the user's wall. A Facebook user can choose who can see particular parts of his/her Facebook page. For example, the user may choose to only allow only persons who s/he accepts as friends to see their photos, wall, etc while those who are not friends may only be able to see limited parts of a user's profile. 16 Individuals or organisations can create a Facebook "Fan" page, as Allergy Pathway has done. Fan pages are similar to personal Facebook pages although there are some differences. A Fan page allows other Facebook users to become "fans" of that individual or organisation or one of its products or services (rather than becoming a user's "friend"). While a user must confirm a person to be their friend, a user elects to become a fan without confirmation from the individual or organisation. Typically Fan pages are (and Allergy Pathway's is) viewable by anyone with internet access (ie not just Facebook users or a user's Facebook friends). A person can post on the wall of a Fan page if they are a fan of the individual or organisation. The individual or organisation can delete any messages posted by third parties. Many corporations now use Fan pages to promote their business. 17 Twitter is another social networking service. "Tweets" are short text-based posts displayed on the user's Twitter page. Tweets are publicly visible by default, although senders can restrict message delivery only to certain users. Users subscribe to other users' Tweets (which is referred to as "following" and subscribers are known as "followers"). When a user makes a Tweet, their followers can see the Tweet.

The argument 18 The ACCC contends that if a person posts on Allergy Pathway's Facebook wall or Twitter page a statement which, if placed there by Allergy Pathway, would render it liable for contempt, once Allergy Pathway is aware of the statement having been placed on its Facebook or Twitter page and does not remove it, then it is liable for contempt.

Contempt 19 The Federal Court has "the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court": s 31 of the Federal Court of Australia Act 1976 (Cth). The High Court has "the same power to punish contempts of its power and authority as [was] possessed [in 1903] by the Supreme Court of the Judicature in England": s 24 of the Judiciary Act 1903 (Cth). 20 The Federal Court's contempt power extends to both civil and criminal contempt. The significance of the distinction between the two concepts has been substantially reduced with the High Court holding that the burden of proof is the same for both (Witham v Holloway (1995) 183 CLR 525, 534) and that the same remedies are available for both (Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 109). 21 It is uncontroversial that a breach of an undertaking is punishable as a civil contempt: Biba Ltd v Stratford Investments Ltd [1973] Ch 281.

Did Allergy Pathway "publish" the third party testimonials? 22 The undertaking relevantly prohibited Allergy Pathway "mak[ing] or publish[ing] or caus[ing] to be made or published in any internet website [etc]" statements of the kind therein described. To determine whether what had occurred is caught by this undertaking the place to begin is with the meaning of the words "publish" and "make". 23 The usual meaning of the word "publish" is to make known or to produce a thing for publication. In a broad sense it can also mean "to expose or display to public view": see the Oxford English Dictionary definition of "publish". To "make" means to cause to exist, to produce or to cause to be or become. Of the several meanings in the Oxford English Dictionary, included among them are (1) "to cause (something) to happen"; (2) "to be the cause of the (fact stated or supposed)"; and (3) "to arrange, fix the time and place for (a match, a tournament)"; "to institute (games)". 24 Putting to one side for a moment the dictionary meanings of the words, I was referred by Mr Moore for the ACCC to a number of cases which discuss the meaning of "publication" for the purposes of the tort of defamation. It is useful to look at those cases provided one exercises some care in applying them in a non-defamation area. In defamation, publication, not the composition of the defamatory material, is at the heart of the action: Hebditch v McIlwaine [1894] 2 QB 54, 58; Lee v Wilson (1934) 51 CLR 276, 287. Thus, where several persons are, in different degrees, responsible for the publication of the defamatory material, each is a joint tortfeasor. So it is that "the journalist, printer, publisher and distributor are joint tortfeasors in respect of the ultimate publication of a libellous periodical or book": Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 581. 25 There are some English cases that have considered who is liable in defamation for material published on the internet. But, it is convenient first to look at the so-called "bulletin board" cases to put the internet cases into their proper historical context. 26 The most important bulletin board case is Byrne v Deane [1937] KB 818. The defendants were the proprietors of a golf club. One of the rules of the club provided that "no notice or placard shall be posted in the club premises without the consent of the secretary". An unknown person placed an allegedly defamatory piece of paper on the wall without the secretary's consent. The defendants (one of whom was the secretary) were aware of the piece of paper but did not take it down. The Court of Appeal held that the proprietors of the club had published the statement. Greer LJ said (at 830) that "the two proprietors of this establishment by allowing the defamatory statement, if it be defamatory, to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it". Greene LJ agreed, stating (at 838) that the proper inference to be drawn was that the defendants had consented to the continued presence of the allegedly defamatory statements. The Court of Appeal rejected the argument that those who take no overt part in the physical publication of defamatory material or those who do not undertake a positive act in the publication cannot be held to have published the material (at 834-5 per Slesser LJ and 837-8 per Greene LJ). Greene LJ (at 838) said the test is: "[H]aving regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?" 27 A similar issue was considered by Hunt J in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 (NSW SC). There the question was whether the Urban Transit Authority was liable for a defamatory poster glued onto six bus shelters under its control. The plaintiff had written to the Authority informing them of the posters and asking for them to be removed. The defendant did not remove the posters for some time. Hunt J was referred to Bryne v Deane and similar cases decided in the United States. He summarised their effect as (at 69,193): In a case where the plaintiff seeks to make the defendant responsible for the publication of someone else's defamatory statement which is physically attached to the defendant's property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. According to the authorities, the plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement. Such conduct on the part of the defendant may of course be established by inference. Indeed, in most cases there will be no evidence of any such acceptance by the defendant expressly, and it can only be established by inference. 28 Turning to the internet cases, the first of them is Godfrey v Demon Internet Ltd [2001] QB 201. An internet service provider (ISP) who stored and permitted transmission of a defamatory positing on a news server it hosted was held liable as a publisher of that material from the time it was aware of the defamatory content. Morland J held (at 208-9) that because the newsgroup was hosted by the ISP and it had the power to remove the post it was a publisher. He analogised the defendant's position to that of a bookseller who sells a defamatory book, a circulating library who provides books to subscribers and distributors more generally. 29 The liability of ISPs was considered in a different context in Bunt v Tilley [2007] 1 WLR 1243. The claimant alleged that three ISPs were publishers of defamatory material even though they played no role other than affording three defendants with internet access. The ISPs successfully applied to have the claims struck out. Eady J said (at [28]) that to impose legal responsibility on a person for a defamatory statement it was "essential" to demonstrate a degree of awareness of the words or an assumption of general responsibility for their publication. He said that it was not enough for a person to play a passive role in the publication. That it was sufficient to show an "assumption of general responsibility" followed from the rule that in defamation cases a publisher's intention to publish was irrelevant and so s/he could not plead as a defence that s/he did not know what was being published was defamatory: see McLeod v St Aubyn [1899] AC 549, 562. 30 The effect of these cases is that merely facilitating the commission of a wrong will not result in liability but it is another thing to procure or conspire in the commission of the wrong, in which case liability may be imposed, particularly if the procurer is aware of the material being published and has accepted general responsibility for its publication. 31 A somewhat similar approach has been applied in contempt proceedings. For example in R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 WLR 1 an editor was found to have published a news article which was likely to prejudice a fair trial even though the court accepted (at 6) that he knew nothing about the article and that it could not be said that he acted recklessly or turned a blind eye to its publication. See also R v Griffiths; Ex parte Attorney General [1957] 2 QB 192, 204 where the court held an importer/distributor and retailer of a contemptuous magazine liable for contempt even though neither had any knowledge of the contents of the magazine.

The Result 32 It has been shown, indeed it was not disputed, that Allergy Pathway knew that persons had published testimonials on its Twitter and Facebook pages and that it took no steps to have them removed. I infer that one reason Allergy Pathway did not remove the testimonials was that it wanted to take the benefit of the praise for its services. Another possible reason is that Allergy Pathway thought the testimonials added legitimacy to its business. 33 While it cannot be said that Allergy Pathway was responsible for the initial publication of the testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway's Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials. In any event it is clear that it caused them to continue to be published from the time it became aware of their existence, which is enough to put Allergy Pathway in breach of the second limb of its undertaking. 34 Mr Keir, the company's sole director, was involved in that conduct and so breached his undertaking.

The appropriate penalty 35 A neat summary of the factors to be considered when determining the appropriate penalty is found in Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494, [25] per Merkel J. They are: (1) The contemnor's personal circumstances including the contemnor's financial circumstances; (2) The nature and circumstances of the contempt; (3) The effect of the contempt on the administration of justice; (4) The contemnor's culpability; (5) The need to deter the contemnor and others from repeating the contempt; (6) The absence or presence of a prior conviction for contempt. Other criminal history is irrelevant; and (7) Whether genuine contrition has been shown and a full and ample apology proffered. 36 I do not propose to deal with each factor; it will be sufficient to comment on those that I find most relevant for this case. On one side: (1) There have been a large number of breaches over an extended period of time. (2) Some of the breaches, such as the representations contained in the YouTube video, clearly infringe the undertaking. It is likely that the respondents were aware, or at least did not care, that this video breached the undertaking. (3) The contraventions of the TPA are serious. I highlighted the gravity of the situation in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960, [6]: The impugned statements have the potential to cause real harm. Persons with allergies are best treated by medical practitioners. Further, clients suffering from allergies and taking the treatment provided by [Allergy Pathway] may wrongly believe the treatment is effective when it is not. Some treatments may even be dangerous to a client. This state of affairs must be remedied. Allergy Pathway has made representations of the very sort that led to the ACCC bringing this proceeding against it. The testimonials which have been published add an air of legitimacy to Allergy Pathway's misleading claims and give false assurance to its clients and prospective clients that the treatments are both safe and effective. On the other side: (4) The respondents describe themselves as being in a "difficult financial position". Allergy Pathway made an operating loss in the financial year ended 30 June 2010. Around a third of its staff have left and have not been replaced. Mr Keir's taxable income for the financial year was around $18,000. (5) The respondents said the breaches were not deliberate. In relation to the testimonials, the respondents believed they would not be liable for publishing the views of Allergy Pathway's clients provided extravagant claims or words were removed. The respondents accept that their review of the testimonials was insufficient to comply with the undertakings. In respect of the direct representations, the respondents believed that placing a disclaimer on Allergy Pathway's website would ensure compliance with the undertakings. The disclaimer read: "Please note the term 'allergy' is being used on this site in a generic sense to describe a range of adverse reactions to otherwise harmless substances. Allergy Pathway cannot, and does not, diagnose immunologically mediated allergies (that is, reactions which result from an immunological process of specific allergen and pathological response). These can only be diagnosed by skin prick testing or RAST blood tests, which Allergy Pathway does not perform. Although Allergy Pathway's treatment is not medically recognized or scientifically validated, we do stand on our patient results. We believe that it works. Please note, however, that our treatment may not assist all patients, and that there are no guaranteed results." The respondents now accept their belief was mistaken. (6) The respondents have shown genuine contrition and have made a full and ample apology. (7) The respondents took immediate steps to comply with the demand by the ACCC to remove the offending material. They have cooperated with the ACCC throughout the process. Prior to the ACCC's demand the first respondent had taken other steps to fulfil the terms of its court-mandated Trade Practices Compliance program, including engaging an external trade practices compliance consultant to comment on its trade practices obligations. (8) The respondents have no prior convictions for contempt. 37 The ACCC suggests that a fine of $10,000 for each respondent is appropriate. It has provided me with a summary of a number of contempt cases where fines have been imposed. Although each case is different, $10,000 is at the upper end of the range of penalty for a contempt which is not contumelious. I regard the respondents' breaches as serious non-contumelious breaches which had the potential to endanger the safety of their clients. A penalty of $7500 for each respondent adequately reflects the gravity of the breaches. Given the financial situation of the respondents I will allow them 90 days to pay.

Other Orders 38 The ACCC also seeks declarations of breach, corrective advertising, injunctions and costs. 39 There is no difficulty in making the declarations sought. As well, injunctions should go for three years. This makes it necessary to discharge the undertakings which now have a shorter life and, in any event, the injunctions will cover the field. 40 The parties agree that Allergy Pathway should publish corrective advertising on the front counter of its clinics, its website and Twitter and Facebook pages. Allergy Pathway will also be required to send a letter (electronically or otherwise) to all of its customers explaining what has occurred. The form of the corrective advertising and the letters is agreed by the parties. As to costs, it is agreed they should be paid by the respondents on an indemnity basis. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 10 February 2011 Schedule Statements in breach of First Respondent's Undertakings Particulars of First Respondent's breach 1 We understand what it can be like to be constantly struggling with the symptoms of allergies, intolerances and sensitivities. The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 on the homepage of its website. For almost a decade Allergy Pathway has been dedicated to serving the community and providing natural alternatives for allergy management. Many thousands of our clients have expressed their appreciation for the relief they have experienced through Allergy Pathway. 2 At Allergy Pathway we provide a holistic approach to allergy management so there are no needles, no drugs, and no restrictive diets. Treatments are gentle, non invasive and great for all ages including infants. The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 on the homepage of its website. 3 We use a muscle test to assess what substances your body is sensitive or reacting adversely to. Muscle testing is easy to do and completely painless… Once we have identified the substances that you are reacting to, your practitioner will then suggest a treatment strategy based on the symptoms and triggers that are most important to you. The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 on the homepage of its website.. To facilitate the effectiveness of the treatment we address one substance per appointment. This involves gentle stimulation of key points on either side of the spine while you are holding a suspected symptom trigger in the form of a substance vial(s). To learn more about the Allergy Pathway treatments click here. Although the statement in this item 3 makes no mention of allergies, other statements on the same page such as those referred to in the second column of items 1 and 2, above do refer to allergies. 4 How did my allergies start? - Negative conditioning The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 on the 'Services' and 'Treatment' pages of its website. Research suggests negative conditioning underlies the development of allergies and sensitivities … Positive Conditioning Studies have also shown that the opposite effect, or positive conditioning, can be used in order to alleviate allergic symptoms. In one study patients with a severe dust-mite allergy were given a flavoured drink at the same time as their daily anti-histamine for five days. Subsequent exposure to the flavoured drink alone showed a reduction in symptoms… 5 What is muscle testing? The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 on the 'Services' and 'Treatment' pages of its website. … … in the 1960s, Dr. George Goodheart began to use muscle testing to help assess and treat many other types of health conditions… He found that muscles could also be weakened by exposure to toxic or allergenic substances. … At Allergy Pathway we use muscle testing to identify what substances the client's body may be reacting to. The muscle test involves checking for a change in the strength of a tester muscle while the patient is exposed to suspected symptom triggers. A normal muscle test will weaken when exposed to a substance the person is reacting to. 6 How does Allergy Pathway treatment work? The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 on the 'Services' and 'Treatment' pages of its website. The Allergy Pathway treatment is based on the principle of positive conditioning. At Allergy Pathway we use gentle stimulation of key points either side of the spine while the patient is exposed to a suspected symptom trigger in the form of substance vial(s)… … We believe that this positive conditioning effect retrains the body to no longer perceive the substance as something that is harmful. Once the body no longer sees the substance as harmful as a result of positive conditioning, the symptoms start to decrease. 7 Wall post by 'Tony Martin' that states: The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 as a wall post dated 2 June 2010 on the Facebook page linked to its website. thank you for curing my daughter of all her allergies….she has gone from having red skin, puffy eyes, watery eyes and nose, coughing, etc to being a healthy 4 year old that can now eat anything…you guys saved us from this and for that I will be forever grateful…Thank you so much… 8 Testimonial posted by 'Allergy Pathway' about Asthma: The First Respondent published the statement: "I am very happy with the service offered and did not expect any clear cut outcome for treatment of by which are clear cut. • on 27 July 2010 as a testimonial on its website; As a general practitioner who does allergy testing (SPT). I am extremely interested in your data for treating clear cut situations and clear cut outcomes, e.g. I get asthma, itchy eyes and nose on cat exposure. My asthma and eye symptoms no longer happen after my treatment. This would make a good project for, say a PHD student in epidemiology/masters in general practice or similar." • from at least 27 July 2010 to at least 31 August 2010 as a wall post dated 29 April 2010 on the Facebook page linked to its website; Dr Joanna, Tasmania • from at least 27 July 2010 to at least 2 September 2010 under the 'Notes ' tab on the Facebook page linked to its website; and • from at least 27 July 2010 to at least 2 September as a Twitter message dated 28 April 2010 on the Twitter page linked to its website. 9 Testimonial posted by 'Allergy Pathway' about Eczema: The First Respondent published the statement: "Allergy Pathway is amazing. It has worked wonders for me in so many ways. I had food allergies for as long as I can remember, avoiding seafood and shellfish and even bread! After one treatment I could eat seafood with no noticeable reaction. Prawns made my mouth itch, my throat sore and my eyes red but after treatment tasted sweet and delicious. • from at least 27 July 2010 to at least 27 August 2010 as a wall post dated 16 April and under the 'Notes ' tab on the Facebook page linked to its website; and Allergy Pathway has also helped with my hay fever. For years I had relied on antihistamines to control seasonal allergies. My eyes were watery and I had constant headache. I seldom sneeze now and am improving all the time. I haven't needed antihistamines since treatment. • from at least 27 July 2010 to at least 27 August 2010 as a link dated 16 April 2010 on the Twitter page linked to its website. Furthermore my skin has improved after the Allergy Pathway treatments and I can now wear gloves at work without my hands suffering from painful and itchy cracked bleeding skin and rash which I had for 8 years and NO other conventional treatment could cure. I had tried everything. Constant use of steroid creams did not help, but I am glad to say it has cleared up now after Allergy Pathway treatments. Thank you to the wonderful staff at Allergy Pathway in North Sydney. You have improved my life in so many ways." Jeff L, Medical Practioner [sic] 10 Answer by 'Allergy Pathway' to a question posted by 'Amy Curtis Power' The First Respondent published the statement from at least 27 August 2010 to at least 31 August 2010 as a wall post dated 25 August 2010 on the Facebook page linked to its website. Amy Curtis Power posted: I have recently become a fan and am curious if the treatment may be able to cure food allergy??? For years I have loved and eaten eggs, not realising that they were the cause of my upset stomach. The funny thing is that while I was pregnant, I could eat eggs without a problem. Response by Allergy Pathway: In response to your question, we have many clients who visit our clinic with troublesome egg reactions. Food reactions can contribute to digestive symptoms such as bloating, gas, diarrhoea and cramping. We take a detailed client history, and we ask clients if they suspect any substances because they are usually right. After identifying what substances you are reacting to, using our muscle testing technique, we address those substances using our non-invasive, positive conditioning technique. The treatments we do here may be able to ease your digestive symptoms. :) 11 Testimonial posted by 'Allergy Pathway' about Toby: The First Respondent published the statement: By day 2 of his life, my beautiful baby boy was red raw and his eyes swollen - and so our journey began. • from at least 27 July 2010 to at least 27 August 2010 as a wall post dated 9 March 2010 on the Facebook page linked to its website; Creams and lotions worked temporarily until the creams burnt his skin and sympathetic professionals offered words of encouragement but at no time did anyone suspect he may be suffering from 'allergies'. • from at least 27 August 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; and By the time he was 1, we had Toby skin and blood tested, the results showed he was reacting to egg and dairy. Cutting out both made absolutely no difference and so the initial relief for us quickly turned to frustration. • on 27 July 2010 as a testimonial on its website. At this point Toby's fingers were like fat chipolata sausages with no skin on, in search of answers and desperate for information we decided to put away the steroid creams, synthetic, chemical filled, shampoos and cleaning sprays and look for an alternative solution. Covered from neck to toe 24/7 and with his arms and legs bound in tubi-grip bandages to protect him from itching, we visited a Naturopath who at last pointed us in the right direction and began to help strengthen Toby's immune system from the inside out but more importantly told us about the Allergy Pathway clinic in Auckland. Thank God! With AP treatments underway and by avoiding other known triggers until next time, results quickly followed, the bandages soon came off, inhalers were put away and his skin's transformation began! A year on and a once strict diet of brown rice, poached chicken and peeled pear is now a sad memory. Toby now eats a normal, healthy diet. He can now roll in the grass, stroke our dog, play at other children's houses, and wear shorts and T shirts and this summer be able to play in the sea without crying in pain from the salt water touching his wounds. Without the Clinic and their guidance we would not have our beautiful baby boy back. We Thank You. Saff O (Toby's Mum), Auckland 12 Wall post by 'Kath Giblett' that states: The First Respondent published the statement from at least 27 July 2010 to at least 27 August 2010 as a wall post dated 8 February 2010 on the Facebook page linked to its website. As a practicing naturopath, I have found this technique to be the most effective method of treating allergic reactions and intolerances. Anyone suffering from food reactions, hayfever, sinusitis, asthma, digestive disorders, eczema, hives or migraines should definitely visit Allergy Pathway to have their reactions checked and cleared. The treatment gets great results in the majority of people that we see. As an ex-allergy suffered myself, I would happily recommend Allergy Pathway to anyone with allergies, sensitivities or intolerances. 13 Testimonial posted by 'Allergy Pathway' about Daniel: The First Respondent published the statement: I was very allergic to dogs but desperately wanted one. As a conventionally trained doctor I was very sceptical of the treatment but decided to give it a go. I am still astonished by the results. I am 95% symptom free and now the delighted owner of an inside dog, Winston the Whippet! • from at least 27 July 2010 to at least 27 August 2010 as a wall post dated 1 February 2010 on the Facebook page linked to its website; Daniel F, Brisbane • from at least 27 August 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; and • on 27 July 2010 as a testimonial on its website. 14 Testimonial headed 'Samara's Story': The First Respondent published the statement: It was as though Samara was never meant to eat food. Since the day she was born she had difficulty digesting anything that passed her lips. • from at least 27 July 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; Samara was a breast fed baby with acid reflux and then when we began introducing solid foods at around 6months old, Samara began producing a number of symptoms that caused us more concern, such as hives, bloated stomach, cramping, constipation, diarrhoea, constant flatulence, crankiness, sleeping difficulties, face and body rashes, swollen tongue and lips, itchy watery eyes, runny nose, sneezing, tickly throat, and behavioural changes and these were only the ones I could read. • from at least 27 July 2010 to at least 31 August 2010 as a Twitter message posted on 30 January 2010 on the Twitter page linked to its website; and As you can imagine, having a baby with all these symptoms was a lot of hard work and a constant worry, I hated seeing Samara so uncomfortable and I was starting to pull my hair out about what I could feed her. She lived on a very bland diet of rice and stewed pears as these seemed to be the only foods that were not affecting her. I began to worry she wasn't getting enough nutrients and what to do when she started refusing to eat pear or rice anymore! • on 27 July 2010 as a testimonial on its website. People looked at me sideways when I said she was allergic/ intolerant to most food groups, especially when I said fruit and vegetables. They didn't understand the symptoms we had to live with. I couldn't do this on my own anymore, so I started doing some research and discovered a treatment method on the internet. I was overjoyed to see they had a clinic in Brisbane. I made an appointment and it was the best move I have ever made. Within a couple of visits Samara was able to eat apples and peas! No more hives, no more cries of pain! I couldn't believe it, and the best thing is the treatment is pain, stress and needle free! Samara is now 21months old and with the help of AP we have been able to work our way through the long list of foods that were affecting Samara and she is now able to eat and drink anything she wants! She is able to enjoy food again! I don't know where we would have been without them! Claire R (Samara's Mum), Brisbane QLD 15 Testimonial headed 'Jake's Story' The First Respondent published the statement: Our son, Jake, had feeding problems from birth (refused breast milk and formula, a lot of the time) and once he started solid food, he developed eczema all over his body. The eczema under his eyes and on his cheeks was really awful. We had worked out that he seemed to be reacting to Wheat and Dairy, but there were obviously other triggers because his eczema persisted despite cutting both out. • from at least 27 July 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; A friend of a friend had a similar story and had had fantastic results with her baby at Advanced Allergy Elimination (now Allergy Pathway). Her little girl's eczema cleared completely, so we thought we'd give it a try too. • from at least 27 July 2010 to at least 31 August 2010 as a Twitter message dated 30 January 2010 on the Twitter page linked to its website; and I was a little skeptical at first, when I found out how simple the treatment was, but once Jake was treated for all of his possible triggers (wheat, dairy, various sugars, various other grains and citrus), his eczema cleared up. It's now been 3 months and the eczema hasn't returned, despite Jake now eating all the foods that previously seemed to cause a reaction. I'm still amazed, but the fact is, it works! It couldn't possibly have been mind over matter - my little boy was only 12 months old! • on 27 July 2010 as a testimonial on its website. Nerissa C, Greenwood WA 16 Testimonial headed 'Tony's Story' The First Respondent published the statement: In 1999 I was diagnosed with Parvo Virus. As a result of this virus and a couple of other minor virus' my immune system became overactive and I began to develop a number of symptoms that indicated adverse reactions to something. These began slowly with just the occasional welt or swollen lip. Gradually as time progressed the reactions increased to the point where I was continuously covered in itchy welts and often had swelling on my lips and face. Finally my legs developed an extremely itchy rash. The itching was unbearable and I would scratch so much my legs would bleed. • from at least 27 July 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; At its worst my legs would actually ooze a liquid that would weep down my skin. Over this time I visited several doctors, all of these diagnosed my problem as being allergy related. I tried using products for sensitive skin along with various creams and antihistamine tablets, but nothing made any real difference. My legs were so bad I had to wear jeans or long pants all the time. • from at least 27 July 2010 to at least 31 August 2010 as a Twitter message dated 30 January 2010 on the Twitter page linked to its website; and I had been to a Nutritionist, who tested for allergies and identified a number of foods that I was allergic to, but apart from advising me to avoid these foods she really wasn't able to help me. Then toward the end of 2008 my wife found an advertisement for AAE - Allergy Pathway. • on 27 July 2010 as a testimonial on its website. We decided to email some images of my legs. Within a very short space of time we received a return phone call and an appointment was made. On my first visit I was given a large amount of testing and I was told that I was sensitive to much of what I ate along with dust and pets. After the testing salicylates were addressed. Within a matter of days I noticed a significant change in the number of welts on my body and a reduction in swelling and redness on my legs. On my next visit histamine was addressed. After this visit the difference was absolutely profound. My legs cleared up completely! But not only that my wife and children noticed an enormous change in my attitude and responses. Where I had been very moody and short I became calm and tolerant, they were very happy about this. I have had three appointments now and the improvements are amazing I rarely get welts and the itching is virtually gone. I want to thank you and your staff for giving me the opportunity to start life again free from all the issues associated with living with adverse reactions. You have changed my life and my family's life in such a positive way. Tony P, Maryborough QLD 17 Testimonial headed 'Jenny's Story': The First Respondent published the statement: I feel like I literally grew up on antihistamines. I would sneeze, itch and rub my way through summer to the point I would often get blood noses. It wasn't fun but worst of all was the reaction I had to my friend's cats when I slept over. I wanted to stay but it would take me days to get over it. • from at least 27 July 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; My first experience of what Allergy Pathway's system could do was profound for me. I was a trainee practitioner at the time and a stray cat had been hanging around my trying to smooch its way in. My other flat mate indulged it and let in into the house. I immediately started reacting with itchy eyes, throat, ears, and sneezing. • from at least 27 July 2010 to at least 31 August 2010 as a Twitter message dated 30 January 2010 on the Twitter page linked to its website; and The next day I was at training and related my story about the cat. They decided to address my reaction to cats. • on 27 July 2010 as a testimonial on its website. When I got home the stray was still hanging around. When I got brave enough I gave it a pat, something I never would have done before. I had no reaction. Still not completely convinced I went to my friend's house. I had always avoided going there because of the 3 cats and my reactions to them. It was incredible! I sat in the room where all 3 slept and nothing happened, I picked one up and put my face in it and nothing happened. No wheeze, no itch no sneeze! I was in awe that what I was training for could be so good and change my reaction to cats! I am happy to say that was nearly 5 years ago and I am still okay with cats. That stray cat became my own cat and I still have her today. Old school friends are amazed that I can pick up their cats and not react as they remember how bad I was as a child. 18 Testimonial headed 'Marj's Story' The First Respondent published the statement: I had a psoriasis like condition over most of my body and was shedding lots of large flakes of skin. Also I suffered from bloating, flatulence, sore throats and blocked sinuses. • from at least 27 July 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website; and Within a few days [after visiting Allergy Pathway] the heat from the rash was diminishing and six weeks later my skin was completely clear. Also the other symptoms of bloating, flatulence, sore throats and blocked sinuses had reduced greatly. • on 27 July 2010 as a testimonial on its website. 19 Testimonial headed 'Ben's Story': The First Respondent published the statement from at least 27 July 2010 to at least 31 August 2010 in the 'Our Stories' folder under the 'photos' tab on the Facebook page linked to its website. This photo was taken by an acupuncturist and shows how his skin was without any cortisone cream. The hospital put him on a very strict elimination diet, excluding wheat, dairy, gluten, amines, salicylates etc and this had no effect on his skin. He got thin and was not thriving or happy. Since coming to you guys his skin has dramatically improved as you can see from the picture. The first visit saw a dramatic improvement and although he has gone forwards and backwards he has not gone back to how bad he was and he is eating all varieties of food and thriving. Jane Cook, (Ben's Mum) 20 A link on the 'Info' page of the Facebook site to the website www.flickr.com/groups/allergysuccessstories. A posting by 'Allergy Pathway (a group admin)' on this page states: The First Respondent published the statement from at least 27 July 2010 to at least 2 September as a link under the 'Info' tab on the Facebook page linked to its website. Even though this group was created by Allergy Pathway, anyone is welcome to show pictures and share their success stories no matter where or how they found relief [sic] from their allergies, intolerances or sensitivities. 21 Comments under a photo posted by Allergy Pathway headed 'Support your body this winter' The First Respondent published the statement: If you find your runny nose, sneezing and sinus congestion continues for a prolonged period of time, your symptoms may be due to allergies, sensitivities or intolerances. Book an appointment with Allergy Pathway to find out whether you are reacting to particular airborne substances such as dust, dust mites, moulds or pollens or if you are sensitive to certain foods such as dairy or wheat. There are many substances that can contribute to your sinus symptoms and the practitioners at Allergy Pathway can help identify these triggers and assist you in finding relief from these debilitating symptoms. • from at least 27 July 2010 to at least 2 September 2010 in the 'Wall Photos' folder under the 'photos' tab on the Facebook page linked to its website; and • from at least 27 July 2010 to at least 2 September as a Twitter message on the Twitter page linked to its website. 22 Under the heading 'What we do…' The First Respondent published the statement: Your practitioner will take a detailed client history, referring to the information you have provided and by asking you questions. • from at least 27 July 2010 to at least 2 September 2010 under the 'Notes ' tab on the Facebook page linked to its website; and You lie down on the treatment table, fully clothed, and we check what you are reacting to using our muscle testing technique. During muscle testing, the practitioner checks for a change of strength of your triceps muscle while you hold a tester vial. • from at least 27 July 2010 to at least 2 September as a link dated 2 February 2010 on the Twitter page linked to its website. We use muscle testing to ask your body what substances it is sensitive to. When we have identified a substance or substances you are negatively reacting to, we endeavour to address one per appointment. This includes using gentle pressure stimulation down the back, on either side of the spine. Your body associates the positive stimulation with the substance and no longer reacts negatively. We address substances that can contribute to a variety of skin, respiratory, and digestive conditions. We are pleased to see so many of patients reporting great results. Call your nearest clinic to make an appointment today! 23 In an scanned copy of an article headed "You're doing well - for your age" The First Respondent published the statement: …adverse reactions such as allergies, intolerances and sensitivities could be the cause of chronic symptoms… • from at least 27 July 2010 to at least 31 August 2010 as a wall post dated 9 March 2010 and in the 'editorials' folder under the 'photos' tab on the Facebook page linked to its website; and There are symptoms you may be simply putting up with that could be caused by an adverse reaction to some foods, or pollens, or plants, or even a chemical. You don't have to suffer. There are natural alternatives that address adverse reactions. If you are avoiding certain foods because they don't agree with you, or if you are troubled by Spring, dusting, mould, damp or are experiencing persistent coughs, rashes, sinus, hayfever or digestive issues - help may be at hand. • from at least 27 July 2010 to at least 31 August 2010 as a link dated 9 March 2010 on the Twitter page linked to its website. Allergy Pathway offers assistance to people with adverse reactions… At Allergy Pathway naturopaths use muscle testing to ask your body what it is sensitive to. The therapy itself is a very gentle and pleasant tapping down either side of the spine and you remain fully clothed during the whole process… 24 Kila's Story The First Respondent published the statement on 27 July 2010 as a testimonial on its website. I have reacted to cats and a number of other things. I had been medically diagnosed with allergies and had difficulty managing my reactions. It caused so many problems as my son had two cats and my step daughter had one so I could not go to their house and when they came to mine they had to sit on one particular couch and stay off mine. I saw Allergy Pathway on TV and thought I would check it out. Well I really did not believe it could work - but it did. This is amazing to me and has set me FREE. After twenty years I feel free and can visit my family and have them visit without worrying about reacting to the cats. Kila A , Brisbane 25 Melanie's Story The First Respondent published the statement on 27 July 2010 as a testimonial on its website. I am writing to express my sincere gratitude with successfully treating my symptoms for cats, dogs, horses, grass and pollens. As I have discussed with you, if the treatment was successful, I had promised my 14 yr old son that we could own a pet cat. My son has never been able to own a pet because of my allergies. The irony was as a young girl, I did own cats, dogs and horses, but I found that in my teenage years through to adulthood, I developed allergies such as skin rashes, running eyes and nose and on occasions asthma type attacks. I am happy to confirm that I no longer suffer from any of those reactions and we are now the proud owners of a Siamese kitten called "Marty". We have had Marty home for one week and I have had no allergic reaction to him except initially when he found dust and cobwebs in every crevice in our house. So once I cleaned my house, I found that I have had absolutely no reaction to him. He jumps all over me and nuzzles my neck and I have even walked around with cat fur on me! I do not sneeze or suffer from rashes or have runny eyes. I do not take any hayfever medication, which was a standard for me when I was exposed to animals. Although I have been having treatments over the past 6 months (and showed immediate successful responses to each treatment) I was waiting for the big test, when our kitten came to live with us before I wrote this testimonial. Although I have written an earlier testimonial on my immediate success with the initial treatment, I wanted the opportunity to finish my treatments and have a solid case study for you to use as a testimonial to others. I came to the treatment with an open mind given my support for natural health remedies and I believe this truly supported the success of my treatments. I am a lawyer and I am married to a lawyer and of course I was faced with skepticism. After 17 yrs of marriage my husband and his family have witnessed my many episodes of allergic attacks, because the entire family own pets. They have now all witnessed the positive success with my treatments and are truly amazed with the successful results. My only regret is that I did not start my treatments earlier, because it would have meant much less suffering and my son owning a cat rather than fish. I am happy for you to pass on my testimonial to others in the hope that other sufferers may experience the same wonderful treatment I have been able to through your assistance. P.S As I have been writing this testimonial, I have had to negotiate it with Marty crawling over me and the keyboard. Kind regards Mel H. Brisbane 26 David's Story The First Respondent published the statement on 27 July 2010 on the 'About Us' page of its website. From the age of eight I suffered from adverse reactions medically diagnosed as allergies to wheat, dairy, yeast and sugar. These reactions impacted upon my childhood and life both physically and emotionally. By my early 20's I felt completely debilitated with chronic fatigue and digestive symptoms. That is when I turned onto an alternative pathway of natural therapies including studying naturopathy. During that time my health began to improve and over the last fourteen years I have continued to follow many routes to seek relief for my allergies and reactions. I believe the most significant relief I experienced came from the appointments I had at Allergy Pathway. For me I felt that experience to be so life changing that I trained as an Allergy Pathway practitioner in the hope I would be able to help others experience the relief I have felt. I find it rewarding to be able to share in the positive health stories of the patients I see at Allergy pathway. 27 Rachael's Story The First Respondent published the statement on 27 July 2010 on the 'About Us' page of its website. I came to Allergy Pathway in 2006. At the time I was working in a Naturopathic clinic in Brisbane which specialised in the treatment of digestive disorders and food sensitivities. I was no stranger to digestive problems. I had experienced digestive symptoms such as cramping, indigestion and bloating since I was a child and found only a restrictive dietary program could minimise symptoms. When I came to Allergy Pathway my life changed. My first sessions addressed various internal digestive substances. I was amazed as I had no idea that substances within my body could be causing my symptoms. Soon after my third treatment I noticed I wasn't cramping after I ate food. I couldn't believe it as even with restrictive diets I had always accepted some degree of cramping and bloating as normal. I soon started to introduce foods I had avoided for years and I continued to be symptom free. I was sold. I referred my friends, family and clients to the clinic as I wanted everyone to experience this. I watched my mum and my sister's chronic hayfever symptoms disappear and I saw great results with so many of the clients I referred. I have now worked for Allergy Pathway for three years. In that time I have seen so many clients lives change just like mine did. I find my work enormously rewarding as I have been able to help so many people. I recognise that our work will not help everyone but for those who find relief I believe it is truly a life altering experience. 28 Paul's Story The First Respondent published the statement on 27 July 2010 on the 'About Us' page of its website. In 2004 I was rejected for an Asthma trial at Concord hospital, NSW as my Asthma symptoms were considered to be too severe. It was a disturbing experience, but it forced me to try something different. I first came to Allergy Pathway in December 2004 as a sceptic. I knew this was not a conventional treatment but I was desperate enough to try anything. It came as a huge relief when it started to work for me, for the first time in years I felt like I was getting some real help. It took months, as I had a number of substances to address. The asthma symptoms gradually disappeared. For the first few years I kept a puffer as a "security blanket" but not any more. Impressed, I sent some friends and business colleagues along to the clinic and they too had good results. That's when I became the cliché "I liked it so much I bought the company"! I truly believe in the work we do and the results our patients, me included, have experienced. 29 As parents we naturally want the best for our children. When our children suffer with allergies the whole family suffers with them as we watch them struggle with poor health and miss out on a carefree childhood. The First Respondent published the statement on 27 July 2010 on the 'Kids' page of its website. Having happy and healthy children is a goal of every parent. For Allergy Pathway helping children to achieve a greater sense of well being is extremely rewarding. We feel privileged to be involved with their journey to better health. There is a great sense of satisfaction in watching a child overcome their allergies and embrace the world, carefree and symptom free. Allergy Pathway would like to take this opportunity to thank the thousands of wonderful children and their parents who visit our clinics and make our work a pleasure. 30 "Prior to treatment at Allergy Pathway I had been prescribed anti histamines from my GP, prescribed various drops and tablets from a Homeopath and had various skin tests from specialists. The First Respondent published the statement on 27 July 2010 on the 'Kids' page of its website. My life has completely changed since undergoing treatment at Allergy Pathway. Having spent the last thirty odd years on anti-histamines, I have had the last few years completely free of any permanent dependence on these medications. I am completely satisfied that Allergy Pathway is the reason. I have recommended Allergy Pathway to many others, especially parents of children with allergies, all of whom have been very happy with the results. The treatment gives wonderful results and is a much better alternative to medication. Long Live Allergy Pathway!!" - Sue C. NSW. 31 "My son suffered from eczema. Before visiting Allergy Pathway, our chiropractor and naturopath both gave B. herbal mixtures with no effect. Kinesiology identified some triggers for his allergies, but there was no improvement with use of herbs. The First Respondent published the statement on 27 July 2010 on the 'Kids' page of its website. His skin specialist did allergy testing and advised to avoid the allergens. B. also had testing at John Hunter, with no allergies identified-they advised that his reactions must be due to intolerances. After treatment at Allergy Pathway, B. no longer reacts to any allergens. He has not had any eczema since being treated. Allergy Pathway is amazing. It has cured B.'s eczema and he is now able to eat anything without the recurrence of his eczema. I highly recommend Allergy Pathway to everyone I speak to who has allergies." - B. F (5yrs) 32 Allergy Pathway Video 1 containing a PowerPoint presentation The First Respondent published the statement: • Slide 2: • on 27 July 2010 as a wall post dated 25 May 2010 on the Facebook page linked to its website; what are allergies? • on 27 July 2010 on YouTube such that it was directly accessible; and An allergy can be defined as: • on 27 July 2010 as a link dated 24 May 2010 on the Twitter page linked to its website. "an abnormal sensitivity to an allergen that is inhaled, eaten or touched that most other people can tolerate with no trouble" • Slide 9: what is ALLERGY PATHWAY? A non-invasive, drug-free means to address adverse reactions such as allergies, intolerances and sensitivities, which is thought to work via positive conditioning • Slide 15: positive conditioning Studies have also demonstrated that the allergic response may be alleviated through conditioning • Slide 16: positive conditioning ALLERGY PATHWAY treatment is thought to work on the principle of positive conditioning. Gentle stimulation of nerve bundles while the patient is exposed to a suspected trigger is thought to create a positive stimulus - the body may associate the two stimuli and no longer react negatively to the substance • Slide 17: muscle response testing ALLERGY PATHWAY uses a form of muscle response testing to help identify what the body may be reacting to. Muscles may be weakened by negative stresses to the body, including exposure to toxic or allergenic substances • Slide 18: conditions & symptoms ALLERGY PATHWAY can often alleviate negative reactions to substances which may be contributing to symptoms or conditions • Slide 20: conditions and symptoms Hayfever Sinusitus Asthma Cough Post-nasal Drip May be triggered by airborne allergens such as dust mite, pollens, pet dander, may also be triggered by foods and chemicals • Slide 21: conditions and symptoms Eczema Contact dermatitis Urticaria (Hives) Rashes May be triggered by foods, contactants & environmental allergens 33 A wall post by Allergy Pathway and a 'tweet' stating: The First Respondent published the statement: Dont' forget to tell your facebook friends to become a fan of Allergy Pathway for the chance to WIN 5 allergy treatments! • on 27 July 2010 as a wall post dated 8 April 2010 on the Facebook page linked to its website; and • on 27 July 2010 as a link dated 8 April 2010 on the Twitter page linked to its website. 34 A wall post by Allergy Pathway stating: The First Respondent published the statement on 27 July 2010 as a wall post dated 24 March 2010 on the Facebook page linked to its website. If allergies aren't your friend, maybe it's time to become Facebook friends with Allergy Pathway. Enter our competition to WIN 5 allergy treatments! 35 A wall post by Allergy Pathway stating in relevant part: The First Respondent published the statement on 27 July 2010 as a wall post dated 18 March 2010 and under the 'Events' tab on the Facebook page linked to its website. "…with the help of Allergy Pathway we have been able to work our way through the long list of allergens that were affecting Samara and she is now able to eat and drink anything she wants!..." Do you or someone you know suffer from the symptoms of asthma, eczema, hives, fatigue or digestive problems? If so these problems may be related to an allergy, intolerance or sensitivity. At Allergy Pathway treatment is simple, pain free and non-invasive. Our practitioners target the symptoms that concern you most. We don't use needles, drugs or elimination diets. We believe everyone should feel relief! We are giving you the chance to win 5 allergy treatments. It's incredibly easy to enter; all you have to do is become a fan of us on Facebook. … To view some of our success stories browse through "our stories" photo album on Facebook or visit www.allergypathway.com.au.

Trade Practices Act 1974(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)