Australian Competition and Consumer Commission v Jones [2011] FCA 49 | Case summary

REASONS FOR JUDGMENT 1 The respondent, Darryl Peter Jones has been a full time, professional personal trainer and body builder for some twenty years. In following that vocation over that period he has owned a fitness centre and a gym at various times. These he describes as having been highly successful. Some thirty years ago, he commenced theological studies in New South Wales graduating in 1984 from the Assemblies of God College at Katoomba with a Diploma of Ministry. Since then he has always maintained involvement in part time and voluntary aspects of Christian churches and fellowships both in New South Wales and in Queensland. 2 Over time, a combination of Mr Jones' experience in the field of personal training and body building, his particular interest in natural body building, ie the development of the human body to the optimum strength and muscular presentation without the use of steroids or performance enhancing drugs and his theological studies and religious beliefs led more recently to his establishing a business known as the Darryl Jones Health Resolution Centre (the Centre). 3 Aspects of Mr Jones' conduct in the course of his carrying on business at the Centre excited the interest of the Australian Competition and Consumer Commission (the Commission). The Commission came to institute proceedings in this Court against Mr Jones alleging contraventions on his part of s 52 and s 53(c) of what was known at the time as the Trade Practices 1974 (Cth) (the Act). On the basis of these alleged contraventions the Commission claims against Mr Jones declaratory, injunctive and ancillary relief. 4 Read in isolation from other provisions in the Act, s 52 and s 53(c) each appear to be directed to corporate, not individual behaviour. Section 52 prohibits corporate conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive. Section 53(c) of the Act provides: 53. A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services: … (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; 5 These provisions must though be read in conjunction with, materially, s 6 of the Act. Within that section, s 6(3)(b) extends their reach to individuals by providing, "a reference in those provisions to a corporation [includes] a reference to a person not being a corporation". Further, whatever operation these provisions might otherwise have, s 6(3)(a) renders them applicable "to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast". In addition, without prejudice to their effect apart from the operation of s 6, s 6(2)(a) renders the provisions applicable to, materially, conduct in trade or commerce: (i) between Australia and places outside Australia; (ii) among the States; (iii) within a Territory, between a State and a Territory or between two Territories. 6 It is via the operation of these paragraphs of s 6 of the Act that the Commission alleges that each of s 52 and s 53(c) apply to conduct by Mr Jones. 7 The representations which form the basis of the Commission's case are detailed in its statement of claim. They are alleged to be misleading or deceptive or likely to mislead or deceive on the basis that they were not true. 8 Mr Jones admits the making of these representations in his defence but denies that they were misleading or deceptive or likely to mislead or deceive. Further, in so far it is an element of a representation that he had reasonable grounds for making a particular statement, his position is that he did indeed have reasonable grounds. 9 Given the extent of the admissions on the pleadings, it is convenient to set out an extract from the statement of claim which records the admitted representations: 2. The respondent (Jones): 2.1. from at least about July 2009 has conducted business under the registered business name Darryl Jones Health Resolution Centre (BN21267005) (DJHRC); and 2.2. since about July 2009 has, in trade or commerce, carried on the business of supplying goods and services to persons in Australia, namely: 2.2.1. treatment and prevention services in relation to medical conditions including cancer (the DJHRC services); and 2.2.2. goods including a book in electronic form entitled "The Truth about Overcoming Cancer" written by Jones (the e-book). Jones Conduct 3. Since at least 12 August 2009, Jones was: 3.1. the owner of; and 3.2. responsible for all operations relating to; the domain name "darryljoneshealth.com.au" (domain name). 4. By at least 8 January 2010 and until 3 March 2010, Jones, by means of a website with the domain name: 4.1. promoted the DJHRC services; and 4.2. promoted and offered a means of purchasing and downloading the e-book; (the website) 5. Between at least 8 January 2010 and 3 March 2010, the website could be accessed by the general public. Representations by Jones 6. By means of the website and the e-book, between at least 8 January 2010 and 3 March 2010, Jones represented, in the course of promoting the DJHRC services and the e-book, that: 6.1. the reduction or elimination of glucose from the diet: 6.1.1. was effective in the treatment or prevention of cancer; 6.1.2. had been proven to bring even the worst cancers under control; and 6.1.3. was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy. 6.2. he had reasonable grounds to represent the matters alleged in paragraph 6.1 hereof; and 6.3. there was a current and reliable scientific basis to represent the matters alleged in paragraph 6.1 (the representations pleaded in sub-paragraphs 6.1, 6.2 and 6.3 are collectively, the glucose representations). Particulars The glucose representations are to be implied from the use of the following words on the website: 6.3.1 "Nobel Peace Prize Winner Dr Otto Heinrich Warburg Links The Fermentation of Sugar As The Prime Cause Of Cancer"; 6.3.2. "The following is taken from a revised Lindau lecture: The Prime Cause and Prevention of Cancer by Otto Warburg, Director, Max Planck Institute for Cell Physiology, Berlin-Dahlem, Germany adapted from a lecture delivered by Otto himself at the 1966 annual meeting of Nobelists at Lindau, Germany. '… for cancer, there is only one prime cause. Summarized in a few words, the prime cause of cancer is the replacement of the respiration of oxygen in normal body cells by a fermentation of sugar. All normal body cells meet their energy needs by respiration of oxygen, whereas cancer cells meet their energy needs in great part by fermentation."; 6.3.3. "The Darryl Jones Health Resolution Centre methodology is based on the resolution of life-threatening diseases without dispensing pharmaceutical drugs, advocating radium therapy, surgery or harmful chemotherapy - focusing instead on a 3-step "Triune Wellness Offensive' - utilizing nutrition, exercise and vitamins along with close, professional, personal accountability. The Darryl Jones Health Resolution Centre - committed to your total victory over modern-day life-threatening diseases - with time-proven personal strategies, empowering you with the tools you need for a prolonged life, greater health and real hope for the future."; 6.3.4. "Darryl Jones and his staff - many members being over corners of life threatening diseases themselves (known as "Champions") - offer an effective and personalised mentoring regimen for all sufferers. Their methodology is based on the resolution of modern illnesses and other diseases naturally, without dispensing pharmaceutical drugs, advocating radium therapy, surgery or harmful chemotherapy. No nasty side effects here!"; 6.3.5. "Founder Darryl Jones from the Darryl Jones Health Resolution Centre says the simple secret is a strict regime of diet and exercise which has been proven to bring even the worst cancers under control. In fact, Darryl helps clients gain success in even terminal cases - cancer patients whose doctors have told them there is nothing more that traditional healthcare medicine can do.", in the context of the website as a whole. Further, the representations are to be implied from the following words in the e-book: 6.3.6. "So now we come to cancer's 'Achilles heel' … it is totally dependent on the nutrients given it by its host. The point here is that modern 21st century hosts (i.e. us) are culturally submerged in and ADDICTED to the foods that cancer likes. The crux of the problem is that Cancer Loves Glucose* and Glucose is easily obtainable from many of the vast majority of foods that we ingest daily. So to take away its major source of nutrition will deprive it of 'its life-source' and therefore compromise it ability to persist and grow. This access to Glucose helps to explain the awesome rise in new cases of cancer, at a rate which is unprecedented at any time in our history. It is a modern-day epidemic!" 6.3.7 "What do we really need to consider? 1. Sugar feeds cancer" Claim outlined in "The Physician's Handbook of Clinical Nutrition", Henry Osiecki, pg. 22. We say that the rocket-like acceleration of cancer in our culture is definitely the result of lifestyle behaviour. It is beyond doubt in my mind that cancer's main food is Glucose*" in the context of the website and the e-book as a whole. A printout of the website and a copy of the e-book are contained in the affidavit of Shane Denzil Dallas affirmed and filed in these proceedings on 24 February 2010 and are available for inspection at the offices of the solicitors for the Applicant, by appointment. 7. By means of the website and the e-book, between at least 8 January 2010 and 3 March 2010, Jones represented, in the course of promoting the DJHRC services and the e-book, that: 7.1. the taking of laetrile, also known as amygdalin, also referred to as "vitamin" B17 (laetrile): 7.1.1. was effective in the treatment or prevention of cancer; 7.1.2. had been proven to bring even the worst cancers under control; and 7.1.3. was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs radium therapy, surgery and chemotherapy; 7.2. he had reasonable grounds to make the representations referred to in paragraph 7.1 hereof; 7.3. there was a current and reliable scientific basis to make the representations referred to in paragraph 7.1 hereof (the representations pleaded in sub-paragraphs 7.1, 7.2 and 7.3 are collectively, the laetrile representations). Particulars The laetrile representations are to be implied from the use of the following words on the website: 7.3.1 "The pre-eminent senior cancer researcher in America was Dr. Kanematsu Segiura - who possibly holds the greatest respect in which scientific research on cancer is regarded. It has been said by a visiting cancer researcher from Russia that "when Segiura publishes, we know we do not have to repeat the study, for we would obtain the same results he has reported." Among the conclusions of Sugiura's work was that laetrile inhibited the growth of tumors. It stopped the spreading (metastasising) of cancer of mice. It acted as a cancer preventative."; 7.3.2. "It is also widely recognised and promoted by other non-orthodox sources that B17 (Laetrile) amygdalin is key for the human body when it comes to building the immune system. This is essential to overcome any form of modern-day cancers such as melanoma, leukaemia, bone cancer, prostate cancer, breast cancer, ovarian cancer and so on."; 7.3.3 the words at paragraphs 6.3.5, 6.3.6 and 6.3.7 hereof; in the context of the website. Further, the laetrile representations are to be implied from the use of the following words in the e-book: 7.3.4. "3. Lack of nutrition Following is a direct transcript of a speech presented by Ernst Krebs Jr.* before the second Cancer Control Society Convention at the Ambassador Hotel in Los Angeles, California. This speech can easily be found on a search engine on the Internet. This man's name can be found in any decent medical book because of the discoveries regarding the cellular source of energy, which to this very day is credited to him in the name of the "Krebs cycle".* By Ernst Krebs, Jn*. … As I look back through the years marketing (sic) the emergence of these two fine Societies, I can recall the number of miraculous victories we have had in those intervening years; that it is as true today as it was eleven years ago that Laetrile, Vitamin B17, is the first and last final hop in the prophylactics in therapy of cancer in man and animals. The reason for this is that Laetrile is a vitamin. It is the 17th of the B vitamins* We hear a great deal about its use in terminal cancer, but the time to start with vitamin B17 is now before the disease has become clinical. The time to start is the same with any matter of adequate nutrition and that is right now. … And when we fail in view of our knowledge now to take Vitamin B17 this is a sin against our physical nature. And when we develop cancer we will receive the results of this transgression in the old fashion Biblical sense that the 'wages of sin are death.' If you are not getting Vitamin B17 in your food the best way to get it is in the pure form. If you have cancer, the most important single consideration is to get the maximum amount of Vitamin B17 into your body in the shortest period of time. … We believe the use of vitamin B17 is vital in cancer control. But we also see that poor nutrition in general, i.e. lacking in good proteins, fats etc and overbalanced with sugar - leaves our body vulnerable to the formation of cancer." in the context of the website and the e-book. A printout of the website and a copy of the e-book are contained in the affidavit of Shane Denzil Dallas affirmed and filed in these proceedings on 24 February 2010 and are available for inspection at the offices of the solicitors for the Applicant, by appointment. [emphasis in the original] 10 On the basis of the admissions on the pleadings, I find that Mr Jones made each of the representations as alleged. His use of the internet for that purpose in itself means that, via, s 6, s 52 and s 53(c) apply to his conduct in making those representations. 11 Mr Jones' defence was settled by counsel. In the result though he was not legally represented at the trial conducted earlier this week. 12 When the trial was called on, Mr Jones was initially disposed to object to my conducting that trial on the basis that there existed a reasonable apprehension of bias. The circumstances giving rise to that submission arose from my past association with the case not only as docket judge in accordance with the usual practice of this Court but also included my dealing with him upon a charge of contempt brought by the Commission on the basis of alleged contraventions of interlocutory orders. I found that some of these allegations were proven: see Australian Competition and Consumer Commission v Jones (No 3) [2010] FCA 908. As it happens, the Full Court disagreed with this outcome: Jones v Australian Competition and Consumer Commission [2010] FCAFC 136. When the matter came back before me in accordance with the Full Court's order, I voiced some concern to the parties about whether, notwithstanding the lack of concern by the Full Court evidenced by the remitter, I should continue to hear the contempt case. The occasion for that concern was that, in the course of the plea in mitigation which had been made before me, admissions had been made as to the conduct concerned in the course of explaining the motivation for that conduct. It was unnecessary further to pursue the merits of that concern in light of well settled principles concerning when an apprehension of bias might arise (qv Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337) because the Commission chose not further to pursue its contempt case. 13 Mr Jones did not in the end pursue his objection to my hearing the trial. He chose not to even after I had expressly drawn to his attention that to abandon the application might be regarded as a waiver of objection and preclude his pursuing the point on any appeal. This warning notwithstanding, Mr Jones determined not to pursue the objection. 14 I should record, as I did at the time to Mr Jones, that I do not consider his objection to have been a frivolous one. While, in light of his abandonment of the point it is not necessary to explore the subject of apprehended bias in any detail, I should also record that, notwithstanding the abandonment, I considered whether I should of my motion not undertake the trial of the proceeding. In light of the admissions on the pleadings and the evidence which each party proposed to lead, no question of credit in relation to Mr Jones arose. Further, the test for whether the admitted representations are misleading or deceptive or likely to mislead or deceive is an objective one. In those circumstances I did not consider that it was necessary of my own motion to raise with the parties the question of whether I should conduct the trial. 15 Another application which Mr Jones made at the commencement of the trial was that the trial should be adjourned. The trial dates had been fixed since August last year. At that time, pre-trial directions in respect to the filing of affidavits were made. These were varied on 29 November 2010 and 10 December 2010, materially so as to allow Mr Jones more time to undertake particular steps. 16 Mr Jones' adjournment application was not filed until 24 January 2011, one week before the start of the trial. That, in itself, was after the date which I had specified by direction for the filing of any such application. He had not as required given notice of any intention to cross-examine the Commission's proposed witnesses by 23 December 2010. At the directions hearing on 10 December 2010, I gave Mr Jones' then legal representative a very particular reminder of the need to give any such notice by that date. One of the Commission's proposed witnesses was Dr Snyder whose affidavit had been filed and served by the Commission in October 2010 in accordance with pre-trial directions. Dr Snyder is a specialist oncologist who holds a senior position at St Vincent's Hospital in Melbourne. The giving of notice of an intention to require his attendance for cross-examination had an obvious, particular importance so far as he was concerned in terms of minimising the impact of the litigation on his availability to provide clinical services to the public. Mr Jones had earlier failed to deliver particulars in accordance with pre-trial directions. He had likewise failed to file and serve affidavit evidence in chief in accordance with the time specified by pre-trial directions. Such directions are not, of course, an end in themselves. Their aim is to ensure the timely and efficient use of limited judicial resources and to afford procedural fairness to each party to litigation. 17 Were the case to have been adjourned it could not have been relisted for its originally estimated time of one week for some months, given the demands of other cases. That, in turn, would have entailed an opportunity cost in terms of any such time being available for the listing of the cases of other litigants. Touching as it does upon public health issues I considered that there was a considerable and particular public interest in the final determination of the merits of allegations made by the Commission as soon as possible. Even though there was an interlocutory injunction in place which had a certain inhibiting effect, that was necessarily only provisional and an interrogative note necessarily remained about the merits of the Commission's allegations pending trial. To adjourn the trial would necessarily have delayed a determination of the merits of those allegations. It would also have been unfair to Mr Jones (who also professed to want the case decided as soon as possible and made reference to the adverse impact of the interlocutory injunction) not to determine the merits of the allegations made against him as soon as possible. There was a contingency that an adjournment might have lead to Mr Jones being represented by counsel but this was nothing more on his evidence than a bare possibility. Mr Jones did not make any offer to pay the Commission's costs thrown away by any adjournment. The worth of any such offer even if made, would have been moot as Mr Jones made it plain that his circumstances were such that he could not afford representation. Further and in any event, the making of any such offer is not, if indeed it ever was, a complete palliative, much less determinative, on the subject of whether there ought to be an adjournment. 18 Taking into account these factors, together with the overarching purpose of civil practice and procedure provisions as described in s 37M of the Federal Court of Australia Act 1976 (Cth) and the observations made by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [6], [25], [27] and [30] per French CJ and at [90], [92]-[93], [97] and [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ in relation to the relevance of case management and public interest in the timely and efficient conduct and disposal of litigation, I considered that, on balance, the trial should not be adjourned. 19 Upon my refusing the adjournment application, the Commission's case was opened. Affidavits of the Commission's investigating officer, Mr Dallas and of Dr Snyder were read for the Commission. Materially, a "snap shot" of the content of the website and a copy of the "e-book" authored by Mr Jones were exhibited to Mr Dallas' affidavit. In his affidavit, Dr Snyder confirmed that he adhered to opinions expressed in reports prepared by him in February and October 2010 respectively. 20 Upon Dr Snyder's affidavit being read for the Commission, Mr Jones stated that, notwithstanding his failure to give notice as required in respect of an intention to cross-examine Dr Snyder, he nonetheless wished so to do. Upon further reflection though, he did not in the end pursue this request. In the result then, none of the opinions expressed by Dr Snyder in his reports was challenged by cross-examination nor was the content of Mr Dallas' affidavit factually controversial. 21 It will be necessary later in these reasons for judgment to detail the opinions expressed by Dr Snyder. 22 Mr Jones' evidentiary case comprised an affidavit on his part and a number of affidavits from persons who had at one stage being clients of his at the centre. 23 The Commission took objection to the exhibiting by Mr Jones to his affidavit of various journal articles. Some of these articles post dated the making of the admitted representations. Such articles axiomatically could not provide a foundation for there having been reasonable grounds at the time when the representations were made for making such representations. Others of the exhibited articles did pre-date the making of the admitted representations but Mr Jones did not state in his affidavit that he had relied upon them in making those representations. 24 The authors of the various journal articles were apparently persons who, in terms of s 79(1) of the Evidence Act 1995 (Cth) (Evidence Act), had specialised knowledge based on their training, study or experience. While it was possible to see how, had such persons been called, the exception to the "opinion rule" for which that sub-section provides would have been engaged, Mr Jones did not propose to call any of those authors. Just to have admitted into evidence opinions expressed in those articles in the way in which Mr Jones sought to introduce them would have left the Commission in the position of being unable to test those opinions by cross-examination of their authors. And this in circumstances where it had led opinion evidence from Dr Snyder whom Mr Jones had decided not to cross-examine. To have permitted the reception of the opinions in the articles without the calling of the authors would not have been fair to the Commission. For these reasons I ruled the various journal articles exhibited to Mr Jones' affidavit to be inadmissible. Effectively, this left nothing in his affidavit evidence in chief other than his opening narrative as to his career and a general closing statement as to his treatment philosophy. He there stated: The approach that I offer is an holistic one, which is explained in [the e-book]. It is based on the foods to be eaten, the foods not to be eaten, positive attitudes, support from family and friends. The program aims to bring the client to total wellness with processes that include diet and exercise, so that the body is able to fight the cancer. The program does not administer any prescription drugs, and does not recommend any supplements, other than food. 25 As to the affidavits of various clients of Mr Jones, in each the deponent attests to having being diagnosed (or a spouse being having diagnosed) with cancer and to the adherence by that person to Mr Jones' program of diet and exercise with, as they perceived it, beneficial effects. There is, as the Commission correctly highlighted in its submissions, a varying absence of detail in these affidavits as to exactly what parts of Mr Jones' program as detailed on his website or in his "e-Book" were followed by those unfortunately afflicted with cancer. Strictly also, there is even an element of hearsay in the relating by each of these lay clients that the condition from which they suffered was indeed cancer. I am prepared though to act on the basis of the correctness of his or her statement of the condition from which they (or as the case may be a spouse) suffered. I have no reason to doubt that each of these persons made his or her affidavit honestly and in good faith. The Commission did not seek to cross-examine any of them and there is something intensely personal and confronting about the receipt of such a diagnosis that makes it one unlikely to be forgotten. The latter feature also causes me to refrain from naming the deponents. It is not necessary so to do in order to do justice in this case. I consider that they are entitled in the circumstances to anonymity. 26 Mr Jones, in turn, relies upon his experience of the beneficial affects described by these persons as constituting the "reasonable grounds" where these form part of an admitted representation.

Has the Commission made out its case? 27 In answering this question it is convenient and also, in the circumstances of this case, especially desirable, to detail at some length Dr Snyder's background and the opinions which he has come to express. 28 Dr Snyder has been a medical practitioner for over forty years and a medical specialist since 1983 when he was admitted to membership of the Royal Australasian College of Physicians. He became a Fellow of that college in 1977. He has been a specialist oncologist at St Vincent's Hospital, Melbourne since 1986. In the proceeding year, he completed post-graduate studies in the field of "Prognosis Factors in Pancreatic Cancer", his thesis on which led to his being awarded the degree of Master of Medicine by the University of Melbourne. He has long held teaching positions at that University in addition to his clinical appointment at St Vincent's Hospital. Since 2002, he has been a Principal Fellow (Associate Professor) in the Department of Medicine at that Hospital. From 2004 until 2007 he was Co-director of Cancer Services at that Hospital and since 2007 he has been Director of Cancer Services at that hospital. He is the author or co-author of very many learned articles relating to cancer. I am well satisfied that he is both by training and experience qualified to express the opinions which he gives in reports. There is no reason whatsoever to doubt Dr Snyder's reliability as a witness. I accept the opinions which he expresses unreservedly. 29 In so doing I have taken into account the cautionary note sounded by Mr Jones in his submission as to the risk of a person with a particular training and background experience coming, without any question of bad faith or bias, to view a problem only through the prism of that training and experience to the exclusion of lateral solutions or approaches. That possibility is one which, as a matter of fairness, ought to have been put by him to Dr Snyder in the course of cross-examination for comment. It would be wrong to discard his opinions on the basis of an untested inference as to sub-conscious bias, even were I prepared to draw the same. This apart, Dr Snyder has expressly stated that he has considered and adhered to this Court's practice note concerning expert evidence, which emphasises the role of an expert being to assist the Court. My reading of his reports, evident in my opinion from the explanations he gives in the excerpt which I have quoted, is that he has endeavoured to address the merits of each of the admitted representations having regard to what is contemporary scientific thought. He seems to me to have been astute to highlight where there might or might once have been a view supportive of some of those representations and to explain why that no longer was considered valid. 30 Materially, Dr Snyder's opinions [as expressed in his October 2010 report] were these: This second report results from a review of the material provided as Annexure A (Documents provided by Darryl Jones). I will provide an opinion on each [allegation in the statement of claim]. There are no matters contained in the first report [that of February 2010] that require revision. In addition to the provided material, I have searched medical and general databases for evidence to support the claims of prevention and treatment of cancer with altered glucose intake, laetrile, and each combined with exercise. Unless specifically stated, no reliable scientifically valid evidence has been found. 2.1 (a) The reduction or elimination of glucose from the diet is effective in the treatment of cancer. i) This statement is not correct. None of the papers in Annexure A provide any data about the effectiveness of altering glucose intake in the treatment of cancer. Instead, the papers provided in Annexure A are reports on investigations into a possible association or causal relationship between carbohydrates in general, or glucose in particular, and the risk of developing certain cancers. Some of the papers eg Terry et al (page 1) fail to show any relationship. Other reports eg Franceschi et al (page 4) do show a relationship. In my opinion, a causal relationship has not yet been established. Nether-the-less, the matter of whether there is a relationship or not in the development of cancer has no bearing at all on the claim that exclusion of glucose is effective in the treatment of an established cancer. With rare exceptions, the removal of cancer causing agents does not reverse the malignant process. I know of no evidence that glucose is one of the rare exceptions. The article on Otto Warburg from Wikipedia is provided in support of the claim that glucose is important as a cause of cancer. As stated in my previous report, this is based on the (mistaken) belief by Otto Warburg in 1930 that abnormal glucose metabolism in malignant cells is the cause of cancer. Modern scientific opinion is that this is an epiphenomena (that is, altered glucose metabolism occurs in cells as a consequence of becoming malignant, but is not a cause of cancer). All cells whether normal or malignant require glucose for survival, and can make glucose from other nutrients if necessary. (There is a the incorrect assertion (page 163) in support of Warburg that states this theory was the reason he received the Nobel prize in 1931. He received the Nobel Prize in Physiology or Medicine "for his discovery for the nature and mode of action of the respiratory enzyme". http://nobelprize.org/nobel_prizes/medicine/laureates/1931/press.html) However there have been views expressed by Craig Thompson, Chi Dang and others that glucose has a primary role in the development of malignancy. However the general scientific view at this time is that altered glucose metabolism is not the cause of cancer. To demonstrate the complexity of this situation, a recent report from Yun et al has shown that low levels of glucose around cancer cells can increase the levels of mutations in some genes that control growth (Science. 2009 Sept 18; 325(5497):1555-9). This effect will lead to increased malignant activity in such cells. 2.1 (b) The reduction or elimination of glucose from the diet is effective in the prevention of cancer. i) This statement is not correct as it is not supported by any scientific evidence. The fallacy of the argument that glucose is the cause of cancer has been discussed above. In the literature looking at the relationship between dietary glucose and cancer, as described above, demonstration of a relationship does not prove causality. Even if glucose is causal, it must be demonstrated in a suitable experiment in humans (as a clinical trial) that alteration in glucose intake alters the cancer risk. I have searched medical databases and can find no evidence of such a study. The complex relationship between glucose, insulin and the development of cancer is discussed in a recent editorial (Diabetes May 2010 vol. 59 no. 5 1129-1131). The authors believe that any relationship between glucose and cancer reflects the effects of other hormones such as insulin and insulin-like growth factors rather than glucose primarily. In addition, some glucose reducing drugs can influence cancer risk while others do not (http://webcast.easd.org/press/glargine/download/090831Smithfinalproofs.pdf). Therefore the common pathway is not via the level of glucose but some other mechanism. 2.1 (c) The reduction or elimination of glucose from the diet is proven to bring even the worst cancers under control. i) This statement is not correct as it is not supported by any scientific evidence. This is discussed in 2.1(a). The "severity" of the cancer is not relevant in this context. If it had been shown to be effective, it would be expected to work even better for less severe cancers. No evidence has been found in the medical literature for benefit in cancers of any severity. 2.1 (d) The reduction or elimination of glucose from the diet together with an exercise program is more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy. i) This statement is not correct as it is not supposed by any scientific evidence. Survival is the best measure of effectiveness of cancer treatment. Overall, 60% of all cancer patients are alive at 5 years with scientifically based treatments ("Cancer Survival Victoria 2007", Cancer Council Victoria 2007). For some cancers, eg large cell lymphoma, testicular cancer, high cure rates (more than 90%) are achieved with conventional treatments, even when the cancer is very advanced at diagnosis. … I have been unable to find any detailed statistics for the survival of patients with cancer who undertake reduction in dietary glucose combined with exercise. In the absence of such data, there is no scientific basis for the claim that such interventions are more effective as conventional therapies (drugs, radiotherapy and surgery) as shown in many reports (two examples above). In my opinion, on the basis of the provided information (Annexure A), there is no reason to believe that interventions with glucose reduction and exercise have any beneficial effect at all. (I presume that the term "radium therapy" is used synonymously with radio-therapy, which is no longer produced by radium sources). Similar arguments would apply for other measures of effectiveness of cancer treatment (eg. quality of life, tumour regression, time to tumour recurrence after primary treatment). 2.1 (e) The taking of laetrile (also known as amygdalin or "vitamin" B17) is effective in the treatment of cancer. i) This statement is not correct as it is not supported by any scientific evidence. The provided papers (Annexure A) describe claimed benefits of laetrile without any specific supportive information that is interpretable. Summaries of the background and the evidence about the lack of effectiveness of laetrile can be found in the papers by Wilson http://www.quackwatch.org/01QuackeryRelatedTopics/Cancer/laetrile.html and the National Cancer institute (USA) http://www.cancer.gov/cancertopics/pdq/cam/laetrile/healthprofessional/allpages. The two main clinical papers in the scientific literature are: A clinical trial of amygdalin (Laetrile) in the treatment of human cancer. Moertel C et al. New Engl J Med 306:201-206, 1982. This describes a non-randomised non-controlled study of amygdalin plus a metabolic therapy program that failed to produce any remission in 178 patients with various cancers. On the basis of lack of activity, further comparative studies were not undertaken. Special Report on Laetrile: The NCI Laetrile Review - Results of the National Cancer Institute's Retrospective Laetrile Analysis. Ellison NM et al. N Engl J Med 1978; 299:549-552, 1978 This describes a program seeking case histories of patients who had benefitted from laetrile. Despite the large number of patients in the USA who have been so treated, insufficient cases were obtained to justify concluding that this was an effective therapy. There is a great deal of published material on laetrile reproduced in Annexure A. This describes a conspiracy to suppress its use, its allegedly efficacy, and various controversies surrounding its promotion. This material does not provide scientifically interpretable data in support of the claims of benefit of laetrile. Another problem with this material is its fails to address the toxicity of the agent. Laetrile is toxic, especially if taken orally, where cyanide is released in the bowel after degradation by intestinal organisms. (It is of interest that such degradation results in the production of glucose). Because of its toxicity, the Therapeutic Goods Administration of the Commonwealth Department of Health have placed it on a Appendix C (Poisons Standard 2010) as a "Substances of such danger to health as to warrant prohibition of sale, supply and use". Furthermore, certain states, such as Queensland restrict its use by regulation. There is a lot of discussion in the Annexure papers about the controversy surrounding the results of experiments by K Sugiura. Whatever the truth, these experiments in transplanted tumours in mice do not support the claims of the benefits of laetrile in treating cancer in humans. Such claims must be made on the basis of objective observations in humans under controlled conditions. I have not identified any scientifically valid reports that support the claims about the benefits of laetrile in treating humans with cancer. 2.1 (f) The take of laetrile is effective in the prevention of cancer. i) This statement is not correct as it is not supported by any scientific evidence. The provided papers claim that laetrile is a vitamin (vitamin 17) and its deficiency leads to cancer. There is no scientific evidence to support the claims that it is a vitamin. In fact, studies of rats feed a cyanogeic glycoside diet for several generations failed to show any associated deficiency disease (Greenberg D, Cancer 45;799-807, 1980). Furthermore, there is no scientific data to support the claim that it can prevent cancer. The information provided about the Hunza people does not support the claim that they have a low rate of cancer, and that if they did, that their consumption of amygdalin was responsible. 2.1 (g) The taking of laetrile is known to bring even the worst cancers under control. i) This statement is not correct as it not supported by any scientific evidence. Refer to 2.1(c)i). 2.1 (h) The taking of laetrile together with an exercise program is more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy. i) This statement is not correct as it is not supported by any scientific evidence. The comments in 2.1(d)i) also apply to the claims for exercise and laetrile. 31 It was common ground in the case that the bundle of articles referred to in this extract as Annexure A had been furnished by Mr Jones to the Commission. 32 In so far as an admitted representation includes a statement that he had "reasonable grounds" for its making, it is necessary to construe what that entails. That expression must of course be read in the context in which it appears. That is not a statute but rather in a publication written by a layman, albeit an educated one with a facility for English expression both in the written word and also, to my direct observation in the course of Mr Jones' conduct of his defence, orally. There is nothing about that context which would suggest that what is meant by "reasonable grounds" is anything different to the settled meaning which that expression usually carries when used in a statute. As to that meaning, in George v Rockett (1990) 170 CLR 104 at 112, in a unanimous joint judgement of a Full Court constituted by each of the seven judges of the High Court, it was observed: When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson: see Nakkuda Ali v. M.F. De S. Jayaratne; Reg. v. Inland Revenue Commissioner; Ex parte Rossminster Ltd.; Bradley v. The Commonwealth; W.A. Pines Pty. Ltd. v. Bannerman. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, e.g., Attorney-General v. Reynolds. [Footnote references omitted] I propose to give the expression the same meaning where it is used in the admitted representations. That means that, where it is used, the representation will not be true where, at the time of making, Mr Jones' did not have facts sufficient to induce in the mind of a reasonable person a basis for the making of the statement concerned. What might constitute such "facts" might but need not necessarily be or even include opinions expressed in learned articles. Whether or not such "facts" amount to reasonable grounds is a question to be answered objectively, not by reference to Mr Jones' subjective statement of mind. 33 Where an admitted representation is not qualified by the expression "reasonable grounds", the nature of the Commission's case requires a finding that those representations were not true if that case is to be found proved. That, too, is a matter to be determined objectively. It is for the Commission to prove, on the balance of probabilities, all of the factually controversial elements of its case. 34 As noted above, Mr Jones pointed to the experience of each of the clients who gave evidence of engaging with him and his program as providing him with reasonable grounds for making representations which included that expression. Even where a representation did not, include this expression his case, as I understood it, was that I should find that the representation was true on the basis of that experience. 35 Mr Jones did not confine the foundation for his claim to reasonable grounds just to the experience of these clients. Nor did he so confine his case as to the truth of representations not qualified by this expression. In each instance, in accordance with the excerpt from his affidavit which I have quoted, he pointed to faith. He made particular reference to Chapter 15, verse 26 in the Book of Exodus in the Bible. As found in The Bible for Today - Contemporary English Version (The Bible Society in Australia Inc), that verse is in these terms, "Then he [the Lord] said, 'I am the Lord your God and I cure your diseases. If you obey me by doing right and by following my laws and teachings, I won't punish you with the diseases I sent to the Egyptians.'" 36 This case is not to be determined by any extensive theological discourse as to what is meant by this verse. The verse does though admit of an interpretation that the Lord may cure a disease by providing an individual with the occasion and inspiration for a scientific breakthrough. What some might call coincidence, a Christian might very well call an Act of God. Perhaps, for example, the serendipitous sequence of events that saw the great 20th century Scottish biologist and pharmacologist, Sir Alexander Fleming, come to receive medical training, pursue a career in research, witness first hand as an Army medical officer in World War One the deaths from sepsis of wounded soldiers, be thereby inspired during and after that war to direct his research to the subject of how such infections might be cured and then observe and test why a laboratory culture of staphylococci accidentally contaminated by fungus showed signs of bacterial destruction, leading to the discovery of penicillin might be so explained. An additional interpretation of part of the verse might also be that one does not "do right" by engaging in conduct that is misleading or deceptive of one's fellow man or likely to be so, irrespective of whether there is an Act of Parliament which so provides. 37 However this may be, faith, Christian or otherwise, does not provide a basis by which, objectively, the truth or otherwise of the admitted representations is to be judged any more than, where a statement as to the possession of reasonable grounds forms an element of the representation, it constitutes a fact sufficient to induce in the mind of a reasonable person a sufficient basis for making that representation. Objectively, to return to the example which I have given, the destruction of staphylococci is attributable to penicillin, not faith. 38 Mr Jones' observation of the experiences of his clients who came to give evidence also does not persuade me, in the face of the opinions expressed by Dr Snyder, that the Commission has not proved its case on the balance of probabilities. There is substance in the Commission's submission that, even if their evidence is considered collectively, it is impossible to judge whether those experiences offer a statistically reliable sample, even in respect of the total number of Mr Jones' clients afflicted with cancer, that his "approach" or "program" has any of the qualities represented by him in the admitted representations. That is to say nothing of there not being any evidence that their experiences offer a statistically reliable sample when measured against outcomes in the general population in respect of those so afflicted who did not follow his "approach" or "program". Further, in the absence of any evidence of any such reliability, I am not satisfied that the experiences of these clients offered reasonable grounds for the making of such of the admitted representations as included this expression. 39 Absence of evidence of statistical reliability apart, the evidence of the clients as to exactly what aspects of Mr Jones' "approach" or "program" they followed or undertook makes it difficult, if not impossible, to relate their evidence to what is alleged to be untrue in respect of particular representations. Even assuming that I should infer that the generality of their statements is but a shorthand way of describing adherence to all elements of Mr Jones' "approach" or "program" as described in his website and e-book, to associate benign outcomes in respect of cancer with a reduction or elimination of glucose or a particular consumption by one means or another of laetrile Mr Jones has not introduced any admissible evidence of any contemporary scientific support for this. Further, in the absence of any such support, the experiences alone do not provide even a reasonable ground for making such of the representations which contain that expression. Neither does reliance on superseded theory, no matter how eminent in his or her time its author, e.g. Dr Otto Warburg, provide any such ground. 40 Mr Jones did not, in terms, state in his affidavit that the material which admittedly emanated from him and came to comprise the material termed "Annexure A" by Dr Snyder also constituted the grounds upon which he made representations in which he stated that he had reasonable grounds for making a statement in that representation. Even though if, as a matter of fairness, this is how "Annexure A" should be understood, this material does not, having regard to the critique made of it by Dr Snyder constitute "reasonable grounds" for the making of the statements in these representations. 41 None of this is to suggest that Mr Jones is under any onus to disprove the alleged contraventions, much less that he must do so with scientific certainty. The onus of proving the contraventions on the balance of probabilities always lies on the Commission. In demonstrating why the Commission had not discharged that onus it would be open for Mr Jones, with an appropriate evidentiary foundation, to call in aid the kind of intuitive reasoning described by Herron CJ in EMI (Australia) Ltd v Bes (1970) 2 NSWR 238 at 240: Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try. The evidence led by Mr Jones does not admit of a conclusion, reached by the application of this kind of intuitive reasoning, that the Commission has not discharged its onus. The areas of the curing of cancer and cancer survivorship are not ones where common experience could be a permissible touchstone for deciding the truth (or, strictly, a failure by the Commission to prove the untruth) of the admitted representations. 42 Intention is not an element of a contravention of either s 52 or s 53(c) of the Act. Neither, more particularly, is a fraudulent intention such an element. Mr Jones voiced a concern in the course of his submissions that the Commission alleged the same against him. I can well understand how, as a layman, he might perceive this but such an allegation does not form part of the case pleaded against him by the Commission in its statement of claim and, for the reasons just given, such an allegation would be irrelevant, even were it made, to the proof of a contravention. 43 On the basis of the opinions expressed by Dr Snyder, I am satisfied that the Commission has proved each of the alleged contraventions. The representations were not true and, insofar as any contained the assertion of there being reasonable grounds for their making, there were no grounds which were reasonable. It follows that I am also satisfied that Mr Jones represented that his services had performance characteristics, uses or benefits in relation to cancer that they did not in fact have. There is no reliable evidence, scientific or otherwise, to support the admitted representations or even to provide reasonable grounds for making them. 44 In reaching these conclusions I have taken into account disclaimers or qualifying statements which appear both on the website and in the e-book. 45 On the website one finds, apart from the admitted representations, this statement (in bold but otherwise standard sized text), self evidently one attributable to Mr Jones: I cannot say that I, or my staff actually heal these life-threatening diseases per se - but what I can say is that we have a marvellous body that fights for us autonomously every day. We can only walk with you to assist in developing your bodies [sic] resolve to battle with disease with a 'full arsenal' and let our former patient's successes speak for themselves! No disclaimer, in itself, affords absolution from committing a contravention of s 52 or, materially for the present, s 53(c) of the Act. Each must be considered in the context of the conduct as a whole, which in this case means considering any disclaimer in the context of the website or, as the case may be, the e-book as a whole. So far as the website is concerned, on the very same page that the statement attributed to Mr Jones appears the following also appears: The Darryl Jones Health Resolution Centre - committed to your total victory over modern-day life-threatening diseases - with time-proven strategies, empowering you with the tools you need for a prolonged life, greater health and real hope for the future. Overall, the tone of the website is to extol the virtues of Mr Jones' approach and deprecate the practice of oncology and the use of pharmaceutical remedies. Reading the website as a whole, the misleading or deceptive quality (or likelihood to mislead or to deceive) of the admitted representations remains. 46 The same conclusion follows in relation to such of the admitted representations as appear in the e-book. That book is entitled, "The Truth About Overcoming Cancer". On its inside cover and under the bold capitals heading "Disclaimer", the following appears: All thoughts and comments in this book are that of the author, they are not meant as medical advice. Observations are those of the author. Testimonies are those of the patients involved. In respect of the important work of the health care industry, the Darryl Jones Health Resolution Centre strongly advises that that the contents of this booklet are a reflection of the author's strong beliefs gained through over 18 years of observation. When taking responsibility for your own health, we advise those reading this book/manual to seek advice and accountability from your health professional. [sic] Insofar as this seeks to convey that all that follows, including such of the admitted representations as appear in the e-book, are just Mr Jones' beliefs, there is no reasonable ground for those beliefs. This apart, the end to which the book is directed is not the seeking of "advice and accountability", whatever the latter may mean, from the reader's "health professional" but rather, as the last page openly reveals a "big plug for [the Centre]". In conveying that "big plug", especially when one reads the passages which appear under the headings "Sugar feeds cancer" and "Lack of nutrition" the vice of glucose and the virtue of laetrile (said to be the 17th of the B vitamins) is extolled emphatically and at length. Read in context, the disclaimer does not remove the misleading or deceptive quality of the admitted representations in the e-book. 47 Such contraventions having been proved, should the Commission be granted any of the relief which it claims? As presented at trial the orders sought by the Commission were these. Declaratory Relief 1. The respondent, in trade or commerce, and in relation to the supply or possible supply or promotion of the supply of goods and services by the respondent, by making representations on the internet that: 1.1. the reduction or elimination of glucose from the diet; 1.1.1. was effective in the treatment or prevention of cancer; 1.1.2. had been proven to bring even the worst cancers under control; and 1.1.3. was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy; 1.2. taking laetrile, also known as amygdalin, also referred to as "vitamin B17"; 1.2.1. was effective in the treatment or prevention of cancer; 1.2.2. had been proven to bring even the worst cancers under control; and 1.2.3. was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy; 1.3. there were reasonable grounds to make the representations referred to in paragraph 1.1 and 1.2 hereof; and 1.4. there was a reliable and current scientific or medical basis to make the representations referred to in paragraph 1.1 and 1.2 hereof; when: 1.5. the reduction or elimination of glucose from the diet; 1.5.1. was not effective in the treatment of cancer; 1.5.2. had not been proven to bring even the worst cancers under control; and 1.5.3. was not, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy; 1.6. the taking of laetrile; 1.6.1. was not effective in the treatment or prevention of cancer; 1.6.2. had not been proven to bring even the worst cancers under control; and 1.6.3. was not, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy; 1.7. there were no reasonable grounds for making any of the representations referred to in paragraph 1.1 and 1.2 hereof; and 1.8. there were no reliable, current scientific or medical bases for any of the representations referred to in paragraph 1.1 and 1.2 hereof; in the case of each of the said representations at 1.1, 1.2, 1.3 and 1.4 hereof: 1.9. engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (TPA); and 1.10. represented that his goods or services have uses or benefits they do not have in contravention of section 53(c) of the TPA. Injunctive Relief 2. The respondent be restrained permanently, whether by himself or his servants or agents or otherwise howsoever: 2.1. in the course of trade or commerce between Australia and places outside Australia, among the States, within a Territory, between a State and a Territory or between two Territories; and 2.2. in trade or commerce involving the use of internet, postal, telegraphic or telephonic services or taking place in a radio or television broadcast; from making any representation to the effect that the occurrence or growth of cancer or any medical condition can be prevented or successfully treated by any means whatsoever unless the respondent: 2.3. first has obtained: 2.3.1. from a person then registered with a medical practitioners board to practice medicine in Australia; or 2.3.2. from a professor, associate professor, reader, senior lecturer, or lecturer then teaching or researching in medicine at an Australian university; written advice certifying that the proposed treatment is in the opinion of that person supported by reliable scientific evidence or expert medical opinion and is believed to be effective and safe; and 2.4. at the time of making the representation, prominently discloses details of the said advice, including the name, qualifications and position of the person providing the said advice; and 2.5. retains a copy of the said advice and provides a copy of the same to the applicant within 7 days of him receiving the certificate. 3. The respondent be permanently restrained, whether by himself or his servants or agents or otherwise howsoever, from knowingly being involved with, consenting to or encouraging the making of, by: 3.1. any person or unincorporated entity: 3.1.1. in the course of trade or commerce between Australia and places outside Australia, among the States, within a Territory, between a State and a Territory or between two Territories; or 3.1.2. in trade or commerce involving the use of internet, postal, telegraphic or telephonic services or taking place in a radio or television broadcast; or 3.2. any corporation, in trade or commerce; any representation to the effect that the occurrence or growth of cancer or any medical condition can be prevented or successfully treated by any means whatsoever unless the respondent: 3.3 first has obtained: 3.3.1 from a person then registered with a medical practitioners board to practice medicine in Australia; or 3.3.2 from a professor, associate professor, reader, senior lecturer, or lecturer then teaching or researching in medicine at an Australian university; written advice certifying that the proposed treatment is in the opinion of that person supported by reliable scientific evidence or expert medical opinion and is believed to be effective and safe; and 3.4. at the time of making the representation, prominently discloses details of the said advice, including the name, qualifications and position of the person providing the said advice; and 3.5. retains a copy of the said advice and provides a copy of the same to the applicant within 7 days of him receiving the certificate. Ancillary Relief 4. Should the respondent become aware that any natural person or entity is: 4.1. representing expressly or impliedly to be him, or to be associated with him, or to be acting with his consent or on his behalf; and 4.2. making a representation in circumstances that, if made by the respondent would contravene paragraph 2 of these orders; the respondent shall forthwith: 4.3. fully inform the applicant of those matters; 4.4. take all steps reasonably available to him to cause the person or entity to cease representing themselves to be him or to be associated with him, or to be acting with his consent, or on his behalf as the case may be, and to cease making representations referred to in paragraph 4.2 above; 4.5. furnish a copy of these orders to the person or entity as soon as he is able to do so and inform the person or entity that the person or entity may be committing contempt of these orders by their actions; 4.6. inform the applicant in writing that he has taken the steps required by paragraph 4.5 of these orders as soon as he has done so; and 4.7. refuse to treat and refuse to accept any payment from any person who, to the respondent's knowledge, sought his services as a result of the making of representations of the type referred to in paragraphs 4.1 and 4.2 of these orders. 5. The respondent, at his own expense, shall, within 7 days of this order, cause a notice in the form of Schedule 1 attached hereto to be published and to remain continuously in place, for a period of 3 months from the date of this order, on the home page of the following websites: 5.1. www.darryljoneshealth.com.au; and 5.2. any other website that at the date of this order is, or within 3 months of the date of this order becomes, controlled, owned, operated or maintained by the respondent that offers or promotes goods or services associated with the treatment or prevention of cancer or any other medical condition whatsoever; and shall take all reasonable steps to ensure that such notice shall: 5.3. be a size that consists of at least 40% of the web page; 5.4. be published on the web page in text format; 5.5. be clearly viewable immediately on screen after the web page is accessed; 5.6. not be blocked by a pop up blocker; 5.7. remain on screen until closed by the person accessing that website; and 5.8. not require a further selection of hyperlinks or scrolling on the screen to be seen. 6. The respondent: 6.1. attend, at his own expense, within 3 months of the date of the order, a trade practices compliance seminar which is designed to ensure an awareness of the responsibilities and obligations contained in Schedule 2, Chapters 1, 2 and 3 of the Competition and Consumer Act 2010 (Cth); and 6.2. within 7 days of attending the seminar referred to in the preceding order, shall notify the applicant in writing of the title of the seminar, the date or dates attended and the name of the person who conducted the seminar. 48 The proceeding being one in which the jurisdiction of the court has been invoked and the alleged contraventions having been proved, there is clear power to grant an injunction: s 21 of the Federal Court of Australia Act 1976 (Cth). Whether or not that power should be exercised is a matter of discretion. That this case touches upon an issue of public health is a public interest factor which tells decisively in favour of the granting of the declaratory relief sought. The terms of the declaration proposed by the Commission reflect the case of statutory contravention by Mr Jones which it has proved. There will therefore be declarations accordingly. 49 Whether or not to grant injunctive relief in the exercise of the power conferred by s 80 of the Act is also a matter for discretion. Here again, the nature of the proven contraventions and the public interest tells decisively in favour of the granting of injunctive relief. In that regard, I also take into account as a factor in favour of the granting of injunctive relief that, in September 2009, the Commission, by its solicitor, sought and obtained from Mr Jones an undertaking that he would not, without giving 14 days prior written notice to it make or cause or permit to be made any representations to the effect that his "Health Resolution Program": I. Can cure cancer, or reverse, stop or slow it progress II. Will prolong the life of a person suffering cancer III. Is supported by empirical scientific evidence IV. Is supported by generally accepted medical opinion V. Can or will, if used by a person who has cancer, cure that person's cancer, or reverse, stop or slow its progress VI. Can or will, if used by a person who has cancer, prolong that person's life VII. Any other representation to the same purport or effect as any of the representations referred to in paragraphs (i) to (v) above VIII. Any other representations to the same purport or effect as any of the representations referred to in paragraph 3 above The contraventions which the Commission has proved show that he did not adhere to the terms of an undertaking given administratively. An order of this Court is not lightly to be disobeyed, given the sanctions which may thereby be attracted. 50 As to the terms of that relief, there is an allegation in the defence which, in effect, advances a contention that any injunctive relief ought to be confined to conduct which would fall within the purview of s 6 of the Act. As to this, "The appropriate terms of an injunction in a particular case are not, as a matter of construction, limited by reference to the conduct in which the Court has been satisfied the respondent has engaged or is proposing to engage": Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135 at 147; see also ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 267. 51 In his oral submissions Mr Jones put forward that the granting of the injunctive relief in the terms proposed by the Commission would effectively forbid his carrying on any business relating to those suffering from cancer. This is not so. If so ordered, he will be enjoined from carrying on business in a particular way but that is a way in which I am firmly convinced is not merely appropriate but necessary in the circumstances of this case. Anything less would not offer adequate protection to the public in general and those suffering from or whose loved ones are suffering from cancer. 52 In respect of the relief claimed by the Commission in paragraph 4 of its proposed orders, Mr Jones objected to what he described as its "dob in" quality. Section 86C(2)(c) of the Act, if not in its breadth s 80 in any event, provides power to make such an order. In my opinion, it is reasonably necessary in this case, again for the protection of the public, that the Commission be given information by him of indirect means by which members of the public might be drawn to him via representations that, if made by him, would contravene paragraph 2 of the orders sought by the Commission. I could not help but note in the course of the trial the applause from a number in the public gallery which attended the conclusion of his oral submissions. Inferentially, Mr Jones has adherents. 53 The ordering of the corrective advertising sought by the Commission is within power (s 86C(2)(d) of the Act) and both appropriate and necessary in the circumstances of this case. 54 That leaves the question of whether or not to make a compliance seminar attendance order either as proposed in paragraph 6 of the orders sought by the Commission or otherwise? I accept that there is power so to do but, again, whether or not to exercise that power requires the making of a discretionary value judgement. 55 I observed Mr Jones closely in the course of the trial. That observation, together with my reading of the website and the e-book, the administrative undertaking which he gave to the Commission and the conclusions which I have reached concerning the admitted representations persuades me that he is something of a zealot. I do not mean any disrespect by that description, only that he is full of zeal in respect of the admitted representations. I consider that these proceedings have themselves had an educative effect for him in relation to his compliance responsibilities in respect of statutory consumer protection provisions. It is not a want of understanding of the prohibition of misleading or deceptive conduct on his part that is lacking but rather a want of understanding on his part about cancer and its treatment which is evident to me. Further, in light of his experience in the course of the case, I doubt that he needs any reminding that imprisonment is one consequence that, in a proven case, can attend a breach of a court order. I am not persuaded that there is likely to be any benefit either to him or to the public in his case in the making of the order sought. 56 That is reason enough not to make this particular order. I additionally take into account that the Commission does not, so I was informed by its counsel, itself offer any such training, even for those who might not otherwise be able to afford to pay to attend the same by a private provider. There is no direct evidence from Mr Jones as to his present economic circumstances. Statements from the Bar table by him on that subject, are not, in the absence of concession by the Commission, evidence. I was not though left with the impression from the trial that his absence of legal representation was contrived, as opposed to a manifestation of his inability to afford the same. Equally, I do not have any evidence from the Commission as to the cost of such training by a private provider. I should not wish to order Mr Jones to undertake training for which he could not reasonably afford to pay. I am left with an interrogative note in my mind on that subject. 57 There will be orders in terms of paragraphs 1 to 5 inclusive of those proposed by the commission, but not in respect of the undertaking of compliance training either as proposed in paragraph 6 or otherwise. It remains to hear the parties as to costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Australian Competition and Consumer Commission v Jones

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)

Cited By (13)