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[2011] FCA 301
Federal Court of Australia
2011-03-31
Mr P, Streeton J
Original judgment source is linked above.
Number of paragraphs: 42
Counsel for the Applicant: Mr P Solomon SC with Mr A Bell
Solicitor for the Applicant: Corrs Chambers Westgarth
Solicitor for the First Respondent: Mr P Ng of Hunt & Hunt
Solicitor for the Second Respondent: Mr P Battye of HWL Ebsworth
Solicitor for the Third Respondent: Mr A Maher of Allens Arthur Robinson
Solicitor for the Fourth and Fifth Respondents: Mr R Hoad of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 859 of 2010
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
AND: WILLESEE HEALTHCARE PTY LTD ACN 124 025 574
NEWLIFE PUBLISHING AND MARKETING PTY LTD ACN 123 522 074
RENEW YOU CENTRE FOR WELLBEING AND LONGEVITY PTY LTD ACN 123 027 074
JUDGE: DODDS-STREETON J DATE OF ORDER: 10 march 2011 WHERE MADE: MELBOURNE
For the purposes of these orders, the following definitions apply: 1. allergy or allergies refer to a physical hypersensitivity in an individual to certain substances which are normally harmless (such as pollen, foods and fruits) and which produce an allergic reaction in that individual and which may be initiated by: (a) contact with the skin; (b) inhalation; (c) ingestion; or (d) injection; 2. allergen refers to a substance which elicits an allergic reaction in an individual; and 3. allergic reaction is an immunological process of specific allergen recognition and response. FIRST RESPONDENT - WILLESEE UPON THE FIRST RESPONDENT giving the undertaking set out in Annexure 1 to this Order through its Counsel: THE COURT DECLARES THAT: 1. The First Respondent (Willesee), from at least from on or about 29 October 2009 until on or about 17 November 2009 has, in trade or commerce: (a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of section 52 of the Trade Practices Act 1974 (Cth) (the TPA); (b) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, falsely represented that the services were of a particular quality, in contravention of section 53(aa) of the TPA; (c) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, represented that the services had performance characteristics, uses or benefits they did not have, in contravention of section 53(c) of the TPA; and (d) engaged in conduct that was liable to mislead the public as to the nature or characteristics of services purporting to test for and treat allergies or the suitability for their purpose of such services, in contravention of section 55A of the TPA, by publishing or causing to be published on internet websites accessible via the uniform resource locator (URL) addresses www.naet.com.au and www.willeseechiropractic.com (Willesee Websites) and in its brochures titled "Relieve your allergies and return to health" and "Nambudripad's Allergy Elimination Technique": (e) the statements referred to in Part 1 of Schedule A to this Order and thereby representing that Willesee could test for and identify a substance to which a person was reacting and which was therefore an allergen for that person and/or a substance to which that person is allergic, when Willesee could not test for and identify an allergen for a person nor a substance to which that person is allergic; (f) the statements referred to in Part 2 of Schedule A and thereby representing that Willesee could: (i) cure or eliminate all or virtually all allergies, or allergic reactions, when Willesee could not cure or eliminate all or virtually all allergies, or allergic reactions; and (ii) successfully treat a person's allergies or allergic reactions, when Willesee could not successfully treat a person's allergies or allergic reactions; and (g) the statements referred to in Part 3 of Schedule A and thereby representing that after Willesee's treatment it would then be safe to have, and there would no longer be any risk or would be a reduced risk in the person having, contact with the substance or allergen to which that person had previously had an adverse reaction, when none of the treatments offered by Willesee could achieve the result of reducing the risk to a person arising from any contact with a substance or allergen to which the person had previously had an adverse reaction, but rather any previous risk continued to exist. THE COURT ORDERS THAT: 2. Willesee cause to be published, at its own expense, within 14 days of the date of this Order, a notice in the terms and form of Annexure 2 to this Order which notice is to be affixed on the front counter and displayed at the point of sale at each of the clinics operated by Willesee at the date of the order of the Court for a continuous period of 90 days and in a manner such that the notice is not obscured. 3. Willesee cause to be published, at its own expense, within 21 days of the date of this Order, a notice in the terms and form of Annexure 3 to this Order (Willesee Website Notice) on the Willesee Websites, and if any such website is replaced or changed, the Internet home page of the corresponding website, for a continuous period of 90 days and to use its best endeavours to ensure that: (a) the Willesee Website Notice shall be viewable by clicking a 'click-through' icon located on the Willesee Websites; (b) the 'click-through' icon referred to in the previous sub-paragraph is located at the top of the homepage of each of the Willesee Websites and any corresponding website; (c) the 'click-through' icon shall contain the words "False and Misleading Conduct by Willesee - Corrective Notice Ordered by Federal Court of Australia" prominently in red text on a black background and the words "click here"; and (d) the Willesee Website Notice shall occupy the entire webpage that is accessed via the "click-through" icon referred to above. 4. Willesee cause to be published and distributed, at its own expense, within 21 days of this Order, a letter in the terms and form of Annexure 4 to this Order to all persons to whom Willesee has provided services purporting to test for or treat allergies at the date of the order of the Court or who were such persons during any period from 29 October 2009 until the date of the order of the Court. 5. Willesee file and serve on the ACCC within 30 days of this Order an affidavit of its proper officer verifying that it has carried out its obligations under paragraphs 2 to 4 above, detailing what it has done, including: (a) in respect of paragraphs 2 and 3 above, detailing how the 90 day period ordered has to date been and will continue to be complied with; and (b) in respect of paragraph 4 above, providing: (i) a copy of one letter as distributed to a person; and (ii) a list of the persons to whom the letter was sent and the address to which the letter was sent. 6. Willesee: (a) require that each of its officers and employees attend not less than once annually for a period of 3 years from the date of the order of the Court, practical training regarding Part 2-1 and Divisions 1, 2, 4 and 5 of Part 3-1 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA), such training to be paid for by Willesee and conducted by a compliance or legal practitioner with suitable qualifications or experience in trade practices law; and (b) provide to the ACCC within 14 days of the completion of such annual training an affidavit: (i) verifying that such training has occurred; and (ii) stating precisely the date the training occurred, the topics that were covered and the name of the person who provided the training. 7. Willesee pay the ACCC's costs of and incidental to the proceeding in the agreed sum of $4,000, payable in four equal monthly payments of $1,000 each commencing no later than ten days from the date of this Order. SECOND RESPONDENT - GEORGONICAS UPON THE SECOND RESPONDENT giving the undertaking set out in Annexure 5 to this Order through her Counsel: THE COURT DECLARES THAT: 8. The Second Respondent (Georgonicas), from at least from on or about 29 October 2009 until on or about 20 December 2009 has, in trade or commerce: (a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of the TPA; (b) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, falsely represented that the services were of a particular quality, in contravention of section 53(aa) of the TPA; (c) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, represented that the services had performance characteristics, uses or benefits they did not have, in contravention of section 53(c) of the TPA; and (d) engaged in conduct that was liable to mislead the public as to the nature or characteristics of services purporting to test for and treat allergies or the suitability for their purpose of such services, in contravention of section 55A of the TPA, by publishing or causing to be published on internet websites accessible via the URL address www.mileendnaturopathicandallergyeliminationclinic.com.au (Georgonicas Website): (e) the statements referred to in Part 1 of Schedule B to this Order and thereby representing that Georgonicas could test for and identify a substance to which a person was reacting and which was therefore an allergen for that person and/or a substance to which that person is allergic, when Georgonicas could not test for and identify an allergen for a person nor a substance to which that person is allergic; (f) the statements referred to in Part 2 of Schedule B and thereby representing that Georgonicas could: (i) cure or eliminate all or virtually all allergies, or allergic reactions, when Georgonicas could not cure or eliminate all or virtually all allergies, or allergic reactions; and (ii) successfully treat a person's allergies or allergic reactions, when Georgonicas could not successfully treat a person's allergies or allergic reactions; and (g) the statements referred to in Part 3 of Schedule B and thereby representing that after Georgonicas' treatment it would then be safe to have, and there would no longer be any risk or would be a reduced risk in the person having, contact with the substance or allergen to which that person had previously had an adverse reaction, when none of the treatments offered by Georgonicas could achieve the result of reducing the risk to a person arising from any contact with a substance or allergen to which the person had previously had an adverse reaction, but rather any previous risk continued to exist. THE COURT ORDERS THAT: 9. Georgonicas cause to be published, at her own expense, within 14 days of the date of this Order, a notice in the terms and form of Annexure 6 to this Order which notice is to be affixed on the front counter and displayed at the point of sale at each of the clinics operated by Georgonicas at the date of this order for a continuous period of 90 days and in a manner such that the notice is not obscured. 10. Georgonicas cause to be published, at her own expense, within 45 days of the date of this Order, a notice in the terms and form of Annexure 7 to this Order (Georgonicas Website Notice) on the Georgonicas Website, or if any such website is replaced or changed, the Internet home page of the corresponding website, for a continuous period of 90 days and to use her best endeavours to ensure that: (a) the Georgonicas Website Notice shall be viewable by clicking a 'click-through' icon located on the Georgonicas Website or the corresponding website; (b) the 'click-through' icon referred to in the previous sub-paragraph is located at the top of the homepage of the Georgonicas Website or the corresponding website; (c) the 'click-through' icon shall contain the words "False and Misleading Conduct by Georgonicas - Corrective Notice Ordered by Federal Court of Australia" prominently in red text on a black background and the words "click here"; and (d) the Georgonicas Website Notice shall occupy the entire webpage that is accessed via the "click-through" icon referred to above. 11. Georgonicas cause to be published and distributed, at her own expense, within 21 days of this Order, a letter in the terms and form of Annexure 8 to this Order to all persons to whom Georgonicas has provided services purporting to test for or treat allergies at any time between 29 October 2009 until the date of this order. Georgonicas may send the letter by e-mail to any recipient for whom she has a valid e-mail address. If sent by e-mail, the contents shall contain nothing other than Annexure 8, and the subject shall be "False, misleading and deceptive conduct by Sophie Lee-Anne Georgonicas". 12. Georgonicas attend practical training regarding Part 2-1 and Divisions 1, 2, 4 and 5 of Part 3-1 of Schedule 2 of the CCA, such training to be conducted by a compliance or legal practitioner with suitable qualifications or experience in trade practices law, (a) once within 60 days of the date of this Order, and (b) in the event (and only in the event) that during the second or third year from the date of this Order, Georgonicas makes or publishes or causes to be made or published any statements involving the use of postal, telegraphic or telephonic services (including statements communicated via e-mail or contained on any internet website or in any newspaper advertisement), or in any radio or television broadcasts, which statements promote the provision of health-related services to the public and use any of the words "allergy", "allergen" or "allergic", such training shall be repeated once on a date selected by Georgonicas prior to three years from the date of this Order. 13. Georgonicas file and serve on the ACCC: (a) within 50 days of this Order an affidavit verifying that she has carried out her obligations under paragraphs 9 to 11 above, detailing what she has done, including: (i) in respect of paragraphs 9 and 10 above, detailing how the 90 day period ordered has to date been and will continue to be complied with; and (ii) in respect of paragraph 11 above, providing: (A) a copy of one letter as distributed to a person; and (B) a list of the persons to whom the letter was sent and the address to which the letter was sent; and (b) within 14 days of the completion of each training required by paragraph 12 above, an affidavit: (i) verifying that such training has occurred; and (ii) stating precisely the date the training occurred, the topics that were covered and the name of the person who provided the training. 14. Georgonicas pay the ACCC's costs of and incidental to the proceeding in the sum agreed between Georgonicas and the ACCC. THIRD RESPONDENT - THEOLIZA THE COURT DECLARES THAT: 15. The Third Respondent (Theoliza), from at least on or about 29 October 2009 until on or about 3 December 2009 has, in trade or commerce: (a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of section 52 of the TPA; (b) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, falsely represented that the services were of a particular quality, in contravention of section 53(aa) of the TPA; (c) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, represented that the services had performance characteristics, uses or benefits they did not have, in contravention of section 53(c) of the TPA; and (d) engaged in conduct that was liable to mislead the public as to the nature or characteristics of services purporting to test for and treat allergies or the suitability for their purpose of such services, in contravention of section 55A of the TPA, by publishing or causing to be published on the internet website accessible via the URL address www.allergyelimination.com.au (Theoliza Website): (e) the statements referred to in Part 1 of Schedule C to this Order and thereby representing that Theoliza could test for and identify (i) whether a substance was causing an allergic reaction in a person, when Theoliza could not determine whether a substance was causing an allergic reaction in a person, and (ii) whether a person has an allergy to a substance, when Theoliza could not determine whether a person has an allergy to a substance; (f) the statements referred to in Part 2 of Schedule C and thereby representing that Theoliza could: (i) cure or eliminate allergies or allergic reactions, when Theoliza could not cure or eliminate any allergies or allergic reactions; and (ii) successfully treat a person's allergies or allergic reactions, when Theoliza could not successfully treat any allergies or allergic reactions. THE COURT ORDERS THAT: 16. Theoliza be restrained, whether by itself, its directors, servants, agents or otherwise, in trade or commerce, for a period of 3 years from the date of this Order from, in any manner whatsoever, making or publishing or causing to be made or published any statements that represent that: (a) it can test for, or can identify, (i) an allergy for a person; (ii) a substance to which a person has an allergy; or (iii) an immunological basis for any symptoms or reactions of a person; (b) it can cure, or can eliminate, an allergy or an allergic reaction; or (c) it can successfully treat a person's allergies or allergic reactions. 17. Theoliza be restrained, whether by itself, its directors, servants, agents or otherwise, in trade or commerce, for a period of 3 years from the date of this Order from, in any manner whatsoever, making or publishing or causing to be made or published any statements that use the term "allergy", "allergen" or "allergic" in any internet website, domain name, radio, television, newspaper advertisement, brochures or other promotional material, other than as required: (a) by paragraphs 18 to 20 below; (b) to inform its clients or potential clients that Theoliza does not test for or treat allergies; or (c) to inform its clients or potential clients that Theoliza does not use Nambudripad's Allergy Elimination Techniques, otherwise known as NAET, to test for or treat allergies. 18. Theoliza cause to be published, at its own expense, within 14 days of the date of this Order, a notice in the terms and form of Annexure 9 to this Order which notice is to be affixed on the front counter and displayed at the point of sale at each of the clinics operated by Theoliza at the date of this Order, for a continuous period of 60 days and in a manner such that the notice is not obscured. 19. Theoliza cause to be published, at its own expense, within 14 days of the date of this Order, a notice in the terms and form of Annexure 10 to this Order (Theoliza Website Notice) on the Theoliza Website, and if such website is replaced or changed, the Internet home page of the corresponding website, for a continuous period of 60 days and to use its best endeavours to ensure that: (a) the Theoliza Website shall consist entirely of a notice in the terms and form of Annexure 10 to this Order; (b) the Theoliza Website shall not have in place any mechanism which would preclude search engines from: (i) indexing the page; or (ii) scanning the page for links to follow; and (c) Theoliza shall not operate or control any other website during the 60 day period specified above. 20. Theoliza cause to be published and distributed, at its own expense, within 21 days of this Order, an email in the terms and form of Annexure 11 to this Order to all persons to whom Theoliza has provided services purporting to test for or treat allergies at the date of this Order or who were such persons during any period from 29 October 2009 until the date of this Order, such email to be sent to each such individual (or, where Theoliza has provided services to more than one individual in a household, to each household): (a) by email to the individual's or household's last-known email address, or (b) if no email address is available or the email sent is returned as having an invalid address, and a postal address is available, by prepaid mail. 21. Theoliza file and serve on the ACCC within 30 days of this Order an affidavit of its proper officer verifying that it has carried out its obligations under paragraphs 18 to 20 above, detailing what it has done, including: (a) in respect of paragraphs 18 and 19 above, detailing how the 60 day period ordered has to date been and will continue to be complied with; and (b) in respect of paragraph 20 above, providing: (i) a copy of one letter as distributed to a person by email (ii) a copy of one letter as distributed to a person by post (if applicable); and (iii) a list of the persons to whom the letter was sent and the postal address or email address to which the letter was sent. 22. Theoliza: (a) require each of Theoliza's officers and employees (including without limitation Mr Steven Mouratidis) attend not less than once annually for a period of 3 years from the date of this Order, practical training regarding Part 2-1 and Divisions 1, 2, 4 and 5 of Part 3-1 of Schedule 2 of the CCA, such training to be paid for by Theoliza and conducted by a compliance or legal practitioner with suitable qualifications or experience in trade practices law; and (b) provide to the ACCC within 14 days of the completion of such annual training an affidavit: (i) verifying that such training has occurred; and (ii) stating precisely the date the training occurred, the topics that were covered and the name of the person who provided the training. 23. Theoliza pay the ACCC's costs of and incidental to the proceeding in the agreed sum of $7,500. FOURTH RESPONDENT - THETA LINE UPON THE FOURTH RESPONDENT giving the undertaking set out in Annexure 12 to this Order through its Counsel: THE COURT DECLARES THAT: 24. The Fourth Respondent (Theta Line) has, from 23 March 2010 until 20 April 2010, in trade or commerce: (a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of section 52 of the TPA; (b) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, falsely represented that the services were of a particular quality, in contravention of section 53(aa) of the TPA; (c) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, represented that the services had performance characteristics, uses or benefits they did not have, in contravention of section 53(c) of the TPA; and (d) engaged in conduct that was liable to mislead the public as to the nature or characteristics of services purporting to test for and treat allergies or the suitability for their purpose of such services, in contravention of section 55A of the TPA, by publishing or causing to be published on the internet website http://www.naturalhealingcentre.com.au (Theta Line Website), the statements: (e) referred to in Part 1 of Schedule D to this Order and thereby representing that Theta Line could test for and identify a substance to which a person was reacting and which was therefore an allergen for that person and/or a substance to which that person is allergic, when Theta Line could not itself test for or identify an allergen for a person nor a substance to which that person is allergic; (f) referred to in Part 2 of Schedule D and thereby representing that Theta Line could: (i) cure or eliminate allergies, or allergic reactions, when Theta Line could not cure or eliminate allergies, or allergic reactions; and (ii) successfully treat a person's allergies or allergic reactions, when Theta Line could not successfully treat a person's allergies or allergic reactions; and (g) referred to in Part 3 of Schedule D and thereby representing that after treatment from Theta Line it would then be safe to have, and there would be a reduced risk in the person having, contact with the substance or allergen to which that person had previously had an allergic reaction, when none of the treatments offered by Theta Line could achieve the result of reducing the risk to a person arising from any contact with a substance or allergen to which the person had previously had an allergic reaction. THE COURT ORDERS THAT: Theta Line Corrective Advertising 25. Theta Line cause to be published, at its own expense, within 14 days of the date of this Order, a notice in the terms and form of Annexure 13 to this Order which notice is to be affixed on the front counter and displayed at the point of sale at each clinic operated by Theta Line, for a continuous period of 60 days and in a manner such that the notice is not obscured. 26. Theta Line cause to be published, at its own expense, within 21 days of the date of this Order, a notice in the terms and form of Annexure 14 to this Order (Theta Line Website Notice) on the Theta Line Website and, if the URL of such website is replaced, changed, or redirected, the corresponding website, for a continuous period of 60 days and use its best endeavours to ensure that: (a) the Theta Line Website Notice shall be viewable by clicking a 'click-through' icon located on the Theta Line Website and any corresponding website; (b) the 'click-through' icon referred to in the previous sub-paragraph is located at the top of the homepage of the Theta Line Website and any corresponding website; (c) the 'click-through' icon shall contain the words "False and Misleading Conduct by Theta Line Pty Ltd (doing business as the Natural Healing Centre) - Corrective Notice Ordered by Federal Court of Australia" prominently in red text on a black background and the words "click here"; and (d) the Theta Line Website Notice shall occupy the entire webpage that is accessed via the "click-through" icon referred to above. 27. Theta Line cause to be published and distributed, at its own expense, within 21 days of the date of this Order, a letter in the terms and form of Annexure 15 to this Order to all persons to whom it has provided services purporting to test for or treat allergies at any time during the period from 23 March 2010 until the date of this Order. 28. Theta Line file and serve on the ACCC within 70 days of the date of this Order an affidavit of its proper officer verifying that it has carried out its obligations under the Order under paragraphs 25 to 27 above, detailing what it has done, including: (a) in respect of paragraphs 25 and 26 above, detailing how the 60 day period ordered has to been complied with; and (b) in respect of paragraph 27 above, providing: (i) a copy of one letter as distributed to a person; and (ii) a list of the persons to whom the letter was sent and the address to which the letter was sent. Theta Line Compliance Training 29. Theta Line: (a) require each of Theta Line's officers, non-clerical employees and practitioners (including without limitation, to the extent they remain affiliated with Theta Line, Ms Nerida James, Maria Colosimo, Teresa Oates and Linda Laratro) to attend not less than once annually for a period of 3 years from the date of this Order, practical training regarding Part 2-1 and Divisions 1, 2, 4 and 5 of Part 3-1 of Schedule 2 of the CCA, such training to be paid for by Theta Line and conducted by a compliance or legal practitioner with suitable qualifications or experience in trade practices law; and (b) provide to the ACCC within 14 days of the completion of such annual training an affidavit: (i) verifying that such training has occurred; and (ii) stating precisely the date the training occurred, the topics that were covered and the name of the person who provided the training. Other Orders 30. Theta Line pay the ACCC's costs of and incidental to the proceeding in the agreed total sum of $5,000 within 30 days of the date of this Order. FIFTH RESPONDENT - COLOSIMO UPON THE FIFTH RESPONDENT giving the undertaking set out in Annexure 16 to this Order through her Counsel: THE COURT DECLARES THAT: 31. The Fifth Respondent (Colosimo) has, from 23 March 2010 until 12 April 2010 (by the operation of the section 6(3) of the TPA), in trade or commerce: (a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of section 52 of the TPA; (b) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, falsely represented that the services were of a particular quality, in contravention of section 53(aa) of the TPA; (c) in connexion with the supply or possible supply of services purporting to test for and treat allergies and in connexion with the promotion of the supply of such services, represented that the services had performance characteristics, uses or benefits they did not have, in contravention of section 53(c) of the TPA; and (d) engaged in conduct that was liable to mislead the public as to the nature or characteristics of services purporting to test for and treat allergies or the suitability for their purpose of such services, in contravention of section 55A of the TPA, by publishing or causing to be published by the use of telephonic services: (e) on the websites: (i) http://www.mariacolosimo.websyte.com.au (Colosimo Website); (ii) http://www.drmariacolosimo.blogspot.com (Colosimo Blog); and (iii) http://www.facebook.com/group.php?gid=197744517648 (Colosimo Facebook Site), the statements: (f) referred to in Part 2 of Schedule E and thereby representing that Colosimo could: (i) cure or eliminate allergies, or allergic reactions, when Colosimo could not cure or eliminate allergies, or allergic reactions; and (ii) successfully treat a person's allergies or allergic reactions, when Colosimo could not successfully treat a person's allergies or allergic reactions; and (g) referred to in Part 3 of Schedule E and thereby representing that after treatment from Colosimo it may then be safe to have, and there may be a reduced risk in the person having, contact with the substance or allergen to which that person had previously had an allergic reaction, when none of the treatments offered by Colosimo could achieve the result of reducing the risk to a person arising from any contact with a substance or allergen to which the person had previously had an allergic reaction. THE COURT ORDERS THAT: Colosimo Corrective Advertising 32. Colosimo cause to be published, at her own expense, within 21 days of the date of this Order, a notice in the terms and form of Annexure 17 to this Order (Colosimo Website Notice) on the Colosimo Website and Colosimo Facebook Site, and use her best endeavours to cause the Colosimo Website Notice to be published on the Colosimo Blog, and, if the URL of any such website is replaced, changed, or redirected, on the corresponding website, for a continuous period of 60 days, and use her best endeavours to ensure that: (a) the Colosimo Website Notice shall be viewable by clicking a 'click-through' icon located on the Colosimo Website, Colosimo Facebook Site, Colosimo Blog and any corresponding website; (b) the 'click-through' icon referred to in the previous sub-paragraph is located at the top of the homepage of the Colosimo Website, Colosimo Facebook Site, Colosimo Blog and any corresponding website; (c) the 'click-through' icon shall contain the words "False and Misleading Conduct by Maria Teresa Colosimo - Corrective Notice Ordered by Federal Court of Australia" prominently in red text on a black background and the words "click here"; and (d) the Colosimo Website Notice shall occupy the entire webpage that is accessed via the "click-through" icon referred to above. 33. Colosimo cause to be published and distributed, at her own expense, within 21 days of the date of this Order, a letter in the terms and form of Annexure 18 to this application to all persons to whom Colosimo has provided services purporting to test for or treat allergies at any time during the period from 23 March 2010 until the date of this Order. 34. Colosimo file and serve on the ACCC within 30 days of the date of this Order an affidavit verifying that she has carried out her obligations under the Order under paragraphs 32 and 33 above, detailing what she has done, including: (a) in respect of paragraph 32 above, detailing how the 60 day period ordered has been complied with; and (b) in respect of paragraph 33 above, providing: (i) a copy of one letter as distributed to a person; and (ii) a list of the persons to whom the letter was sent and the address to which the letter was sent. Colosimo Compliance Training 35. Colosimo: (a) not less than once annually for a period of 3 years from the date of this Order, attend practical training regarding Part 2-1 and Divisions 1, 2, 4 and 5 of Part 3-1 of Schedule 2 of the CCA, such training to be paid for by Colosimo and conducted by a compliance or legal practitioner with suitable qualifications or experience in trade practices law (Colosimo may meet the requirements of this paragraph 35(a) during any annual period by attending during that period one of the training sessions referenced in paragraph 29; and (b) provide to the ACCC within 14 days of the completion of such annual training an affidavit: (i) verifying that such training has occurred; and (ii) stating precisely the date the training occurred, the topics that were covered and the name of the person who provided the training. Other Orders 36. Colosimo pay the ACCC's costs of and incidental to the proceeding in the agreed total sum of $2,500 within 30 days of the date of this Order. 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. SCHEDULE A STATEMENTS BY WILLESEE PART 1: ACCURATE ALLERGY TEST REPRESENTATION Webcaptures Reference Webpage W-A www.naet.com.au 29/10/09 W-B www.willeseechiropractic.com 12/11/09
S/ment No Statement of Concern Source
The testing is done using a method of neuromuscular sensitivity testing, similar to that used commonly by kinesiologists that measures the power of energy in the body. If the patient then holds a homeopathic vial of fluid containing the energy of the allergen, the test of energy measuring is repeated. The electromagnetic field energy felt by the fingers travels to the body, if the body is allergic, the reaction will show with a drop in the energy level for the patient. W-A
How are the allergens diagnosed? W-A
Dr Nambupripad has used technique's [sic] devised from Kinesiology to test the patient using muscle resistance technique while the patient is holding a homeopathic vial that copies the energy of any allergen to test. The patient holds a vial in their hand and the energy is strength of the muscle is tested. If weak, the patient is showing an allergic response, they are registering an electromagnetic energy that would cause allergic reaction, if no change in strength, there is no reaction.
NAET used Muscle Resistance Testing (MRT) to indicate imbalance or blockage caused by the allergen. Once each allergen is identified, treatment will follow to desensitize each specific allergen by stimulating the spine in order to clear the energy blockages. W-B
Print Publications Reference Brochure B-A NAET Australia brochure B-B Willesee Healthcare brochure S/ment No Statement of Concern Source 4. Nambudripad's Allergy Elimination Technique uses Muscle Resistance Testing (MRT) which indicates the kinetic imbalance in the body caused by the allergen. B-A Once an allergy is ascertained the treatment involves stimulation by acupressure on the acupuncture points along the spine and then stimulation of gate acupuncture points along the meridian lines, as the vial containing the allergen is held by the patient. 5. N.A.E.T. combines Neurosensitivity Muscular Testing to diagnose kinetic imbalance in the body caused by allergies. After identifying the allergy the treatment involves a stimulation on the Acupuncture points on the spine and around the gate points of the body. B-B
SCHEDULE A STATEMENTS BY WILLESEE PART 2: ALLERGY ELIMINATION AND SUCCESSFUL ALLERGY TREATMENT REPRESENTATION Webcaptures Reference Webpage W-A www.naet.com.au 29/10/09 W-B www.willeseechiropractic.com 12/11/09
S/ment No Statement of Concern Source 6. Nambudripad's Allergy Elimination Techniques, also known as NAET®, are a non-invasive drug free, natural solution to eliminate allergies of all types and intensities... W-A 7. What is NAET? W-A Nabudripad Allergy Elimination Technique is a therapy designed by Dr Devi Nambudripad... She recognized the theories of Oriental Medicine showed if meridian lines showed energy blockages, and those blockages were cleared the allergies could be removed... 8. The treatment involves an acupressure stimulation on the acupuncture points of the spine, then the gate points of the meridian lines. The stimulation is done as the patient continues to hold the vial receiving the electromagnetic vibes into the body via the finger pads. The process has the effect of opening blockages in organs and meridian lines to allow the flow of the allergen to be received and not rejected as a toxin as had previously been occurring. As toxins exist when blocked by organs, they lead to allergic reaction. Once removed, the reaction usually ceases to occur. W-A 9. "Nambudripad's Allergy Elimination Techniques" is a truly revolutionary system for dealing with allergies … W-A 10. It is a natural, drugless, painless, non-invasive method that can be used safely when administered to anyone of any age, on a healthy person to treat hidden allergies that could cause diseases in the future or on patients in real suffering, to permanently eliminate allergies and symptoms arising from previous exposure to allergens and their allergic manifestations. W-A 11. Best results are obtained with this technique, if allergens are cleared in a specific sequence. Normally only one item is treated on a given day. The substance must then be completely avoided for 25 hours following the treatment. In most cases, the body desensitizes decreasing reaction to the allergen. Often patients who are highly sensitive may sometimes require additional combination clearings, as the body regains energy from accepting nutrients, the healing can occur naturally from within. W-A 12. How NAET works W-A ... Dr Nambudripad realized stimulation on the Acupuncture points of the body, while in contact with an allergen, would allow the body to reboot the brain's often genetically contorted belief that it could not tolerate certain substances. By stimulation, the brain can focus on the particular energy of the allergen to allow release of previously reactive conditions. 13. Dr Nambudripad discovered that if the roots of the sympathetic nervous system are given specific stimuli, with acupressure, or acupuncture, the brain will receive messages that enable it to correct its faulty perception of the substance concerned (the equivalent of a computer "reset"). These new messages will be permanently imprinted in the brain after a number of other acupressure/acupuncture points have been stimulated, provided the patient follows certain precise rules for a specified time period after the treatment. W-A This "reprogramming" constitutes the core part of the NAET methodology, and this theory has been extensively verified for more than fifteen years with highly satisfactory, long-lasting results. 14. Thousands of patients have been treated with amazing permanent results, and you can read some of their testimonials in Dr Nambudripad's books. W-A 15. Up until recently, there has been no satisfactory method for treating a person's allergies. The conventional western medicine allergists can use desensitization using injections of allergenic substances over a period of months, or even years. This approach is effective for some people for some allergies, but in many it does not do the job, especially with food allergies. This can be difficult at best, and impossible in some cases. W-A Now, however, there is an alternative. Treatment with NAET can help the body cope with allergies. 16. What to expect from me W-B ... An effective and drug free, non-intrusive allergy elimination for you and your kids. 17. Permanently Eliminate Allergy by using NAET W-B NAET is really a break through treatment for relieving allergy problems with lasting results. ... Until now there have not been any treatments to satisfactorily treat an allergy. Injections and drugs have only been able to control the allergic symptoms often with underlying problems such as serious side effects. 18. NAET is a natural, drug free approach to eliminate allergy technique. It is based on Oriental energy medicine and applied kinesiology principles. W-B 19. NAET used Muscle Resistance Testing (MRT) to indicate imbalance or blockage caused by the allergen. Once each allergen is identified, treatment will follow to desensitize each specific allergen by stimulating the spine in order to clear the energy blockages. Usually one allergen will be treated at a time. W-B 20. After an individual is treated for the allergen, the patient will no longer be sensitive to it. For most patients, after one treatment the allergic substance no longer produces symptoms. Sometimes due to the severity of the allergy, several treatments may be required. W-B
Print Publications Reference Brochure B-A NAET Australia brochure B-B Willesee Healthcare brochure
S/ment No Statement of Concern Source 21. Nambudripad's Allergy Elimination Technique B-A Release Your Allergies and Reclaim Your Health 22. When contact is made with an allergen it causes blockages in the energy pathways, or meridians, disrupting the normal energy flow. B-A ... N.A.E.T. can help to reprogram the brain and remove blockages from the energy pathways, which can allow the body to regain perfect balance (homeostasis) and function normally in order to reach optimal health. 23. Introducing N.A.E.T B-A ... As Dr. Nambudripad suffered severe allergies herself, she used her extensive knowledge in Western and Eastern medicine to develop a technique that would prove to be highly successful in eliminating her own allergies, as well as bringing relief to many sufferers worldwide. ... It offers the patient the chance to release their allergies and renew the energy flow allowing them to live a better quality of life in our modern world. 24. How does N.A.E.T. work? B-A ... Once an allergy is ascertained the treatment involves stimulation by acupressure on the acupuncture points along the spine and then stimulation of gate acupuncture points along the meridian lines, as the vial containing the allergen is held by the patient. After this procedure, the patient remains in contact with the allergen vial for a further 10-20 minutes. The allergic substance must then be avoided for 25 hours following the treatment. Most patients release an allergy after one treatment only, however highly allergic patients may require a few treatments to completely dissolve the allergen. 25. Through N.A.E.T, people have been successfully treated for the following conditions: B-A Allergies to: Chemicals Cold Chemotherapy Cosmetics Fungus Heat Milk Products Mold Pets and Animals Prescription Drugs Shellfish Radiation The Sun Your Clothing Your Kids Your Co-workers 26. SPECIALISING IN: B-B Allergy Elimination ... N.A.E.T. 27. Allergy Elimination B-B At Willesee Healthcare, we specialise in an allergy elimination technique that we have found to be incredibly successful. 28. Nambudripad's Allergy Elimination Technique (N.A.E.T) is a non-invasive, painless and drug free technique used to help allergy elimination. B-B 29. After identifying the allergy the treatment involves a stimulation on the Acupuncture points on the spine and around the gate points of the body. The substance must then be avoided for 25 hours to ensure the safest chance of the allergen being released after one treatment. B-B 30. Through N.A.E.T, people have been relieved of the following conditions: B-B Allergies to: Chemicals Cold Chemotherapy Cosmetics Fungus Heat Milk Products Mold Pets and Animals Prescription drugs Shellfish Radiation The Sun Your clothing Your kids You [sic] co-workers
SCHEDULE A STATEMENTS BY WILLESEE PART 3: SAFE REPRESENTATION Webcaptures Reference Webpage W-B www.willeseechiropractic.com 12/11/09
S/ment No Statement of Concern Source 31. After an individual is treated for the allergen, the patient will no longer be sensitive to it. For most patients, after one treatment the allergic substance no longer produces symptoms. Sometimes due to the severity of the allergy, several treatments may be required. W-B
Print Publications Reference Brochure B-A NAET Australia brochure B-B Willesee Healthcare brochure
S/ment No Statement of Concern Source 32. After this procedure, the patient remains in contact with the allergen vial for a further 10-20 minutes. The allergic substance must then be avoided for 25 hours following the treatment. B-A 33. After identifying the allergy the treatment involves a stimulation on the Acupuncture points on the spine and around the gate points of the body. The substance must then be avoided for 25 hours to ensure the safest chance of the allergen being released after one treatment. B-B
SCHEDULE B STATEMENTS BY GEORGONICAS PART 1: ACCURATE ALLERGY TEST REPRESENTATION Webcaptures Reference Webpage W-A www.mileendnaturopathicandallergyeliminationclinic.com.au 29/10/09 W-B www.mileendnaturopathicandallergyeliminationclinic.com.au 1/12/09
S/ment No Statement of Concern Source
PRACTICES W-A
Acupressure/Allergy Testing/Treatments, Naturopathy, Acupuncture, Traditional Chinese Medicine
SERVICES
...
The treatment involves the combination of acupuncture, oriental medicine and kinesiology (muscle strength testing).
SERVICES W-B
...
The treatment involves the combination of acupuncture pressure points and or acupuncture, chiropractic, oriental medicine and kinesiology (muscle strength testing).
SCHEDULE B STATEMENTS BY GEORGONICAS PART 2: ALLERGY ELIMINATION AND SUCCESSFUL ALLERGY TREATMENT REPRESENTATION Webcaptures Reference Webpage W-A www.mileendnaturopathicandallergyeliminationclinic.com.au 29/10/09 W-B www.mileendnaturopathicandallergyeliminationclinic.com.au 1/12/09
S/ment No Statement of Concern Source 3. Mile End Allergy Elimination Clinic [in webpage title on Home page] W-A 4. Naturopathic and Allergy Elimination Clinic [banner on each webpage] W-A 5. Say good-bye to illness W-A "Allergy Elimination Clinic" is here 6. This technique works by restoring and retraining the immune system and brain, so that it no longer reacts to the allergens in appropriate [sic] manner. W-A 7. Once treated with the allergy elimination technique patients can then start to consume and come in contact with the previously known allergens without having an allergic reaction. W-A 8. Dr Nambudripad has discovered a revolutionary treatment for allergies involving a combination of acupuncture, oriental medicine and kinesiology (muscle strength testing). W-A Once treated with this technique, patients can then start to consume and come in contact with the previously known allergens without having an allergic reaction. 9. AET can rebalance and restore the brains [sic] perception of the allergy threat and desensitise the body. Therefore totally eliminating the allergen and not just masking it by allergy medication. W-A 10. Allergy elimination technique (AET) has been proven to eliminate most food, environmental and external allergies. W-A 11. HOW CAN AET TREATMENT HELP ME OVER COME MY ALLERGIES W-A AET has been proven to eliminate most food, environmental and external allergies. 12. The treatment with AET works by restoring and retraining the immunity [sic] system and brain, so that no longer it [sic] reacts to the allergens in a negative manner. W-A 13. What allergies can be treated with AET W-A … Allergies to: Chemicals Chemotherapy Computer Cosmetics Fungus Heat Milk Products Latex Mold Peanuts Penicillin Pets and Animals Prescribed Drugs Shell Fish Your Clothing 14. A Revolutionary Treatment for Allergies and Allergy-Related Conditions W-A W-B 15. Nambudripad Allergy technique (NAT) has been proven to improve most food, environmental and external allergies. W-B 16. Say good-bye to illness W-B "Allergy Clinic" is here 17. This technique works by restoring and restraining the immune system and brain, so that it no longer reacts to the allergens in appropriate [sic] manner. W-B 18. Once treated with the Nambudripad allergy technique patients can then start to consume and come in contact with the previously known allergens without having an allergic reaction. W-B 19. NAT can rebalance and restore the brains [sic] perception of the allergy threat and desensitize the body. Therefore totally clearing the allergen and not just masking it by allergy medication such as Anti histamines. W-B
SCHEDULE B STATEMENTS BY GEORGONICAS PART 3: SAFE REPRESENTATION Webcaptures Reference Webpage W-A www.mileendnaturopathicandallergyeliminationclinic.com.au 29/10/09 W-B www.mileendnaturopathicandallergyeliminationclinic.com.au 1/12/09
S/ment No Statement of Concern Source 20. Once treated with the allergy elimination technique patients can then start to consume and come in contact with the previously known allergens without having an allergic reaction. W-A 21. The treatment with AET works by restoring and retraining the immunity [sic] system and brain, so that no longer it [sic] reacts to the allergens in a negative manner. W-A 22. AET can rebalance and restore the brains [sic] perception of the allergy threat and desensitise the body. Therefore totally eliminating the allergen and not just masking it by allergy medication. W-A 23. Once treated with the Nambudripad allergy technique patients can then start to consume and come in contact with the previously known allergens without having an allergic reaction. W-B 24. NAT can rebalance and restore the brains [sic] perception of the allergy threat and desensitize the body. Therefore totally clearing the allergen and not just masking it by allergy medication such as Anti histamines. W-B 25. Treatments are done one at a time, in a specific order and then cleared. In most cases the treated allergen is then avoided for 25 hours. W-B
SCHEDULE C STATEMENTS BY THEOLIZA PART 1: ACCURATE ALLERGY TEST REPRESENTATION Webcaptures Reference Webpage W-A www.allergyelimination.com.au http://www.mileendnaturopathicandallergyeliminationclinic.com.au/29/10/09
S/ment No Statement of Concern Source What is NAET and how is it applied W-A
The technique is relatively simple, as it is highly successful.
NAET utilizes MRT (Muscle Response Testing).
A vial containing an allergen is handed to the patient, the practitioner then applies MRT. If the muscle response is weak then there is an allergic reaction to the substance.
If you are unsure as to whether you are susceptible to certain substances then please speak to your general practitioner or allergy specialist who will be able to advice you on the prescribed course of treatment. Your NAET practitioner is a specialist in this field and can advise you accordingly. W-A
SCHEDULE C STATEMENTS BY THEOLIZA PART 2: ALLERGY ELIMINATION AND SUCCESSFUL ALLERGY TREATMENT REPRESENTATION Webcaptures Reference Webpage W-A www.allergyelimination.com.au http://www.mileendnaturopathicandallergyeliminationclinic.com.au/29/10/09
S/ment No Page No Statement of Concern Source 3. "Allergy Elimination" [appears on each page as the webpage title and also as a banner] W-A 4. Allergy Elimination is a non invasive, drug free, and wholly natural treatment which has a high success rate among it's [sic] many recipients. W-A 5. Founded by Dr. Devi Nambudripad, a fully qualified medical doctor, (for more information on Dr. Devi Nambudripad please contact us via our link and we will provide you with additional information), NAET (Nambudripad Allergy Elimination Techniques). The treatment has been successful in eliminating the causes and allergic reactions in thousands of people across the globe. W-A If you have tried most conventional treatments without success then we urge you to try NAET. 6. What is NAET and how is it applied W-A The technique is relatively simple, as it is highly successful. NAET utilizes MRT (Muscle Response Testing). A vial containing an allergen is handed to the patient, the practitioner then applies MRT. If the muscle response is weak then there is an allergic reaction to the substance. The practitioner then commences a series of stimulation along specific pressure points along the spine to promote the healing process. In addition to this stimulation of the pressure points the patient is advised to avoid the substance for a period of 25 hours or more. Desensitization is a major factor in the treatment and all contact with the allergen must be avoided. 7. The Allergy Elimination Clinic, incorporating Melbourne Nutritional & Preventive [sic] Medicine provides a specialist array of treatments for the many conditions. W-A ... The following conditions can be successfully treated using this approach 1. Allergy related conditions …
SCHEDULE D STATEMENTS BY THETA LINE PART 1: ACCURATE ALLERGY TEST REPRESENTATION Webcaptures Reference Webpage W-A www.naturalhealingcentre.com.au http://www.allergyelimination.com.au/ 23/03/10
S/ment No Page No Statement of Concern Source
Treatments available at both Mitcham & Ferny Creek. W-A
...
Allergy Testing: This is done with the Naeter machine by our technician Suzie Colosimo. Available appointments Tuesday or Saturday. You will be tested on around 250-300 different foods, nutrients, chemicals and environmental pollutants. Test results are supplied on the day.
Doug Mizzi also does Allergy testing and has a Vega machine. Our NAET practitioners do muscle response testing
Doug Mizzi W-A
...
Doug utilises Bio-dermal testing, a fully computerised testing device. The procedure utilises a fully computerised testing device, which is shown to be more effective than scratch and blood testing and matches closely to the results seen in elimination diet, albeit without the 6 months of hard work!
...
The testing procedure does not use needles, offers a high accuracy rate and is regarded as non-invasive, 100% safe and suitable for all ages.
SCHEDULE D STATEMENTS BY THETA LINE PART 2: ALLERGY ELIMINATION AND SUCCESSFUL ALLERGY TREATMENT REPRESENTATION Webcaptures Reference Webpage W-A www.naturalhealingcentre.com.au http://www.allergyelimination.com.au/ 23/03/10
S/ment No Page No Statement of Concern Source 3. Treatments available at both Mitcham & Ferny Creek. W-A ... Allergy Relief: we use a technique for permanently desensitizing your allergies. Based on traditional Chinese Medicine philosophy. 4. Your first visit W-A Our practitioners typically start with a comprehensive diagnosis of your health. From this, they work out an individualised treatment program with you. This may include massage, herbal and nutritional supplements, allergy elimination, changes in your diet, work on your muscles or spine, cleansing and detoxification. 5. Doctor Nerida James W-A ... Professional Qualifications ... Qualified NAET Practitioner (Allergy Relief Technique) ... Maria Colossimo [sic] ... Maria Colossimo [sic] is a Naturopath who specialises in allergies. Maria trained with Dr. Nambudripad to deliver the Nambudripad Allergy Relief Technique (N.A.E.T.) to allergy patients in Australia. While the number of NAET practitioners in Australia is growing, Maria is still considered one of its pioneers and one of the highest trained in Australia. She has been practising NAET for the past 9 years with huge success. Since introducing the technique, she has had remarkable results with aliments such as ADD/ADHD, Autism, Candida allergies, chemical allergies, cosmetics, dairy food allergies, allergies to nuts, Asthma, Eczema, Chronic fatigue, Irritable bowl disease and Fibromyalgia, to name a few. Maria has recently attended the last 2 symposiums in the USA where she has mixed with practitioners from all over the world and has brought back to Australia the latest updates and discoveries on delivery of the NAET treatments. She is a dedicated Naturopath who is passionate about relieving allergies for patients. Ultimately patients are able to eat the foods they were once allergic to. "Allergy relief is the area I specialize in and feel most strongly about. It is quite possible that allergy sensitivities or allergic reactions occur (of [sic] are included) in almost every health condition. As a practicing Naturopath with 10 years experience I now concentrate on the NAET allergy relief technique as I have seen it give people their lives back." ... Teresa Oates ... Teresa is a dedicated Naturopath who has been practicing for 16 years, specialising in... NAET (Allergy Treatment) ... ... Linda Laratro ... Linda specializes in allergy symptom relief ... During the time Linda has been practicing she has successfully treated conditions such as allergies ...
SCHEDULE D STATEMENTS BY THETA LINE PART 3: SAFE REPRESENTATION Webcaptures Reference Webpage W-A www.naturalhealingcentre.com.au http://www.allergyelimination.com.au/ 23/03/10
S/ment No Page No Statement of Concern Source 6. Ultimately patients are able to eat the foods they were once allergic to. W-A
SCHEDULE E STATEMENTS BY COLOSIMO PART 2: ALLERGY ELIMINATION AND SUCCESSFUL ALLERGY TREATMENT REPRESENTATION Webcaptures Reference Webpage W-A www.mariacolosimo.websyte.com.au 23/03/10 W-B www.facebook.com/group.php?gid=197744517648 23/03/10 W-C www.drmariacolosimo.blogspot.com 23/03/10
S/ment No Page No Statement of Concern Source 1 Specialties: W-A Specialises in ... NAET allergy management and relief techniques. 2 Does your child suffer from allergies? Perhaps you yourself do? Are you at your wits end as to how to banish the allergies which plague your day to day life? W-B I can help. My name is Maria Colosimo, N.D. ... The technique I use to control allergies is the NAET Technique. NAET is an innovative treatment for allergies that is completely natural, painless and non-invasive. 3 Doctor Colosimo trained with Doctor Devi Nambudripad in America to deliver the NAET allergy relief technique which has proven success not only with patients suffering allergies to food and environmental factors, but also treating chronic conditions usually not thought of as being allergy related. There is more information on the NAET website - www.naet.com W-C 4 Dr Colosimo has been practicing NAET for the last ten years, travelling to USA for regular Symposiums to keep her skills current at all times. Her work with NAET in Australia has been tremendously successful; she has achieved remarkable results assisting patients with conditions such ADD/ADHD, autism, down syndrome, candida allergies, chemical allergies to cosmetics, dairy, food and nuts. W-C ... Once treated, patients may be able to eat the foods they were once allergic to, many patients experience other improvements in quality of life following Doctor Colosimo's treatments.
SCHEDULE E STATEMENTS BY COLOSIMO PART 3: SAFE REPRESENTATION Webcaptures Reference Webpage W-C www.drmariacolosimo.blogspot.com 23/03/10
S/ment No Page No Statement of Concern Source 5 Once treated, patients may be able to eat the foods they were once allergic to, many patients experience other improvements in quality of life following Doctor Colosimo's treatments. W-C
ANNEXURE 1 37. Willesee undertakes to the Court that it will not, whether by itself, its directors, servants, agents or otherwise, in trade or commerce, for a period of 3 years from the date of this order, make or publish or cause to be made or published any statements that represent that: (a) it can test for, or it can identify, either an allergen for a person or a substance to which a person is allergic; (b) it can cure, or it can eliminate, an allergy or an allergic reaction; (c) it can successfully treat a person's allergies or allergic reactions; (d) at any time after it has treated a person's allergies or allergic reactions, it would then be safe for that person to have contact with an allergen to which he or she had previously had an allergic reaction; (e) at any time after it has treated a person's allergies or allergic reactions, there would then no longer be any risk in that person having contact with an allergen to which he or she had previously had an allergic reaction; (f) at any time after it has treated a person's allergies or allergic reactions, there would then be a reduced risk in that person having contact with an allergen to which he or she had previously had an allergic reaction. For the purposes of each of these undertakings, the following definitions apply: 38. allergy or allergies refer to a physical hypersensitivity in an individual to certain substances which are normally harmless (such as pollen, foods and fruits) and which produce an allergic reaction in that individual and which may be initiated by: (a) contact with the skin; (b) inhalation; (c) ingestion; or (d) injection; 39. allergen refers to a substance which elicits an allergic reaction in an individual; and 40. allergic reaction is an immunological process of specific allergen recognition and response.
ANNEXURE 2 Information Notice An important message from Willesee Healthcare False, misleading and deceptive conduct by Willesee Healthcare Following action by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia has declared that Willesee Healthcare Pty Ltd (Willesee) contravened the Trade Practices Act 1974 (TPA) by engaging in false, misleading and deceptive conduct. Willesee made the offending representations in relation to its purported ability to diagnose and treat allergies. The offending representations were made in statements published and adopted on Willesee's websites at http://www.willeseechiropractic.com and http://www.naetaustralia.com.au, and in brochures that Willesee published and provided to consumers. The Court has declared that Willesee's conduct contravened the TPA because the following representations Willesee made were false, misleading and deceptive:
ANNEXURE 3 An important message fromWillesee Healthcare False, misleading and deceptive conduct by Willesee Healthcare Following action by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia has declared that Willesee Healthcare Pty Ltd (Willesee) contravened the Trade Practices Act 1974 (TPA) by engaging in false, misleading and deceptive conduct. Willesee made the offending representations in relation to its purported ability to diagnose and treat allergies. The offending representations were made in statements published and adopted on Willesee's websites at http://www.willeseechiropractic.com and http://www.naetaustralia.com.au, and in brochures that Willesee published and provided to consumers. The Court has declared that Willesee's conduct contravened the TPA because the following representations Willesee made were false, misleading and deceptive:
ANNEXURE 4 (Willesee Healthcare Pty Ltd logo and letterhead) (Date) (To Willesee client) Dear Sir / Madam, False, misleading and deceptive conduct by Willesee Healthcare Pty Ltd Following action by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia has declared that Willesee Healthcare Pty Ltd (Willesee) contravened the Trade Practices Act 1974 (TPA) by engaging in false, misleading and deceptive conduct. Willesee engaged in the contravening conduct by making offending representations in the course of carrying on and promoting its purported allergy diagnosis and treatment business. The offending representations were made by Willesee on its websites at http://www.willeseechiropratic.com and http://www.naetaustralia.com.au, and in brochures which Willesee published and provided to consumers. The Court has declared that Willesee's conduct contravened the TPA because the following representations Willesee made were false, misleading and deceptive:
ANNEXURE 6 Information Notice An important message from Sophie Lee-Anne Georgonicas False, misleading and deceptive conduct by Sophie Lee-Anne Georgonicas Following action by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia has declared that Sophie Lee-Anne Georgonicas (Georgonicas) contravened the Trade Practices Act 1974 (TPA) by engaging in false, misleading and deceptive conduct. Georgonicas made the offending representations in relation to her purported ability to diagnose and treat allergies. The offending representations were made in statements published and adopted on Georgonicas' then-existing website at http://www.mileendnaturopathicandallergyeliminationclinic.com.au. The Court has declared that Georgonicas' conduct contravened the TPA because the following representations Georgonicas made were false, misleading and deceptive:
ANNEXURE 7 An important message fromSophie Lee-Anne Georgonicas False, misleading and deceptive conduct by Sophie Lee-Anne Georgonicas Following action by the Australian Competition and Consumer Commission (ACCC), the Federal Court of Australia has declared that Sophie Lee-Anne Georgonicas (Georgonicas) contravened the Trade Practices Act 1974 (TPA) by engaging in false, misleading and deceptive conduct. Georgonicas made the offending representations in relation to her purported ability to diagnose and treat allergies. The offending representations were made in statements published and adopted on Georgonicas' then-existing website at http://www.mileendnaturopathicandallergyeliminationclinic.com.au. The Court has declared that Georgonicas' conduct contravened the TPA because the following representations Georgonicas made were false, misleading and deceptive:
ANNEXURE 13 Information Notice An important message from Theta Line Pty Ltd (doing business as The Natural Healing Centre) False, misleading and deceptive conduct by Theta Line Pty Ltd The Australian Competition and Consumer Commission (ACCC) commenced proceedings in the Federal Court of Australia against Theta Line Pty Ltd doing business as The Natural Healing Centre (Theta Line), alleging that Theta Line had contravened the Trade Practices Act 1974 (TPA) by engaging in false, misleading and deceptive conduct. The proceeding related to representations made by Theta Line in relation to its purported ability to diagnose and treat allergies. An allergy is a physical hypersensitivity which produces an allergic reaction through an immunological process. The representations were made in statements published and adopted on Theta Line's website at http://www.naturalhealingcentre.com.au. The ACCC and Theta Line have agreed to settle the proceedings. Theta Line has consented to declarations by the Court that Theta Line has contravened the TPA because the following representations Theta Line made were false, misleading and deceptive:
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 859 of 2010
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
AND: WILLESEE HEALTHCARE PTY LTD ACN 124 025 574
NEWLIFE PUBLISHING AND MARKETING PTY LTD ACN 123 522 074
RENEW YOU CENTRE FOR WELLBEING AND LONGEVITY PTY LTD ACN 123 027 074
JUDGE: DODDS-STREETON J DATE: 31 march 2011 PLACE: MELBOURNE
REASONS FOR JUDGMENT 1 On 10 March 2010, I made orders and accepted undertakings with the consent of the applicant, the Australian Competition and Consumer Commission ("ACCC"), and the first to fifth respondents, Willesee Healthcare Pty Ltd, Sophie Lee-Anne Georgonicas, Theoliza Pty Ltd, Theta Line Pty Ltd and Maria Teresa Colosimo, all of which (or whom) carried on the business of providing a service to consumers for, and made representations about, the diagnosis, treatment and cure of allergies by a method known as the Nambudripad Allergies Elimination Technique ("NAET"). 2 The orders made and undertakings accepted, with the consent of the relevant parties, are set out in full above. My reasons for making the orders and accepting the undertakings are set out below. 3 By an application and Fast Track Statement filed on 8 October 2010, the ACCC alleged that in relation to the diagnosis, treatment and cure of allergies by NAET, nine respondents, comprising the following four individuals and five companies: (a) Willesee Healthcare Pty Ltd; (b) Sophie Lee-Anne Georgonicas; (c) Theoliza Pty Ltd; (d) Theta Line Pty Ltd; (e) Maria Teresa Colosimo; (f) Newlife Publishing and Marketing Pty Ltd; (g) Renew You Centre for Wellbeing and Longevity Pty Ltd; (h) Bojan Schiznetz; and (i) Dzung Kieu Price, contravened ss 52, 53(aa), 53(c) and 55A of the Trade Practices Act 1975 (Cth) by engaging in misleading or deceptive conduct (in contravention of s 52), making false representations as to the quality of goods and services (in contravention of s 53(aa)), falsely representing that goods had performance characteristics, uses or benefits (in contravention of s 53(c)), and engaging in conduct liable to mislead the public as to the nature or characteristics of services (in contravention of s 55A). 4 The relief granted includes declarations, an injunction against the third respondent, undertakings (proffered by all save the third respondent), publication orders (requiring notices to be published, if applicable, on the respondent's front counter at their places of business and on their websites, and in letters to be sent to persons who have used their services), compliance training orders and costs. 5 Before me, the ACCC and the first to fifth respondents relied on their joint submissions dated 4 March 2011, a statement of agreed facts dated 4 March 2011, the applicant's Fast Track Statement filed 8 October 2010, and the Fast Track Responses of the second respondent filed on 18 November 2010, the third respondent filed on 11 November 2010 and the fourth to fifth respondents filed on 14 December 2010, and the report of the Associate Professor J A Douglass, which the ACCC tendered with the consent of the first to fifth respondents.
Whether relief should be granted against only certain respondents 6 I was informed that the ACCC had also settled with the sixth to ninth respondents, who had recently (but subsequent to mediation) ceased to have legal representation. I ordered that the sixth to ninth respondents be called but they made no appearance. 7 Senior counsel for the ACCC provided to the Court a copy of consent orders dated 8 February 2011, executed by the ACCC and by or on behalf of the sixth to ninth respondents, which were to the same form and effect as the consent orders sought by the ACCC and the first to fifth respondents, save that the consent orders relating to the sixth to ninth respondents included a penalty order of a specified amount. 8 Senior counsel for the ACCC informed me that there was agreement between the ACCC and the sixth to ninth respondents which was dispositive of the entire case, but further time was required in order to organise the evidence to be tendered in support of the application for orders by consent, including the penalty order, in relation to those respondents. 9 Senior counsel for the ACCC submitted, and I accepted, that it was unnecessary to defer the making of the consent orders in relation to the first to fifth respondents until the application in relation to the sixth to ninth respondents was ready to proceed, as only declaratory relief (or in one case, injunctive relief) was sought against the former, whereas the relief sought against the latter included penalty orders. There was thus no reason to delay the disposition in relation to the first to fifth respondents, due to considerations of parity, proportionality or associated considerations. Further, it was important to proceed without delay in relation to the first to fifth respondents, in order to ensure certainty, prompt public education, and timely corrective action in relation to the significant public health issue of the detection and treatment of allergies. 10 Solicitors appearing for the first to fifth respondents submitted that their clients were content for the Court to proceed to make the orders forthwith and, in some cases, urged that course, due to the strain on the relevant respondent and potential costs associated with the pendency of the matter. 11 Although in the ordinary course a contemporaneous disposition in relation to all respondents would be desirable, I determined that given the potential for serious harm to the health of members of the public (and particularly to clients of the relevant respondents who may continue falsely to assume that they have received effective treatment) should the representations remain uncorrected, it was preferable that the relief against the first to fifth respondents, including the regime for corrective advertising, notifications and compliance training, be granted without delay.
The contravening conduct of the first to fifth respondents 12 The joint submissions described the contravening conduct of the first to fifth respondents as follows: Each of the Respondents has, during the relevant period, carried on the business of providing services to consumers purporting to involve the diagnosis and treatment of allergies using Nambudripad's Allergy Elimination Technique (NAET). NAET refers to a service provided to consumers which purports to involve the diagnosis and treatment of allergies through: (a) testing for and identifying a person's specific allergens using muscle resistance testing (Muscle Resistance Testing) and, in some circumstances, other techniques including: (i) skin resistance testing or electro-dermal testing; and (ii) electro-acupuncture; and (b) curing, eliminating or successfully treating a person's allergies by using acupressure and/or acupuncture techniques (Acupressure or Acupuncture Techniques). NAET is based on the premises that: (a) an allergen disrupts the energy field of a person, leading to energy blockages; and (b) the Acupressure or Acupuncture Techniques will stimulate centres along the energy pathways of the person being treated and thereby clear the energy blockage, balance the energy field of the person and desensitise the person's body to that particular allergen. … The core conduct by each of the Respondents which the ACCC alleges is false or misleading relates to statements made by the Respondents in relation to the diagnosis, treatment and cure of allergies. … 13 Each of the first to fifth respondents admitted that by publishing identified statements set out in the statement of agreed facts, each made misleading representations that: (a) each … could test for and identify a substance to which a person was reacting and which was therefore an allergen for that person and/or a substance to which that person is allergic; (b) each of the Respondents … could: (i) cure or eliminate all or virtually all allergies, or allergic reactions; and (ii) successfully treat a person's allergies or allergic reactions; (c) … after its treatment or her treatment (as the case may be) it would then be safe to have, and there would no longer be any risk or would be a reduced risk in the person having, contact with the substance or allergen to which that person had previously had an adverse reaction. 14 The relevant representations are set out in Schedules A, B, C and D to the orders made, supra. 15 The ACCC contended, and each of the respondents admitted, that they could not test for or identify allergies or substances to which a person was allergic, cure or eliminate all or virtually all allergies or allergic reactions, or successfully treat a person's allergies or allergic reactions, and further, that none of the treatments offered could reduce the risk. 16 The first to fifth respondents further admitted that they had contravened ss 52, 53(aa), 53(c) and 55A of the Trade Practices Act
Report of Associate Professor Douglass 17 The report dated 10 November 2010 of Associate Professor Douglass, Head of the Allergy, Asthma and Clinical Immunology Service at the Alfred Hospital, constituted a detailed analysis of the nature of allergens and allergies and risks presented by allergies, their treatment and the prospects of cure. It relevantly stated: There are several variations of muscle tests for allergy, including kinesiology or muscle strength testing, performed by practitioners, which lack a scientific basis or reproducibility. Such testing is explicitly dismissed as invalid for diagnostic testing for allergies when subject to scientific scrutiny. In my clinical practice I do not use, nor would I recommend, such a test to diagnose allergy and current practice parameters support this view. … As a clinical practitioner in the field of allergy for now 20 years I am not aware of acupressure being used in Australia or internationally to effectively treat allergies by medical practitioners. Moreover I cannot conceive of a physiological process whereby acupressure could be effective in treating a specific immunological process. This method of treating allergies is not recognized by bodies such as the Australasian Society of Clinical Immunology and Allergy (ASCIA) and other international groups and experts such as the Allergic Rhinitis and its Impact on Asthma (ARIA) consortium and the American Academy of Allergy, Asthma and Immunology. I am aware of a large number of publications regarding the effects of acupuncture in both asthma and allergic rhinitis. These have been subject to review and meta-analysis and no consistent evidence of benefit was found, especially in those trials which were of high quality, being appropriately randomized and blinded. In my experience, acupuncture does not comprise a usual part of the treatment of allergic diseases, nor is it used by Allergy and Clinical Immunology specialists as part of usual practice. In my experience I am not aware of spinal release techniques being used for allergy diagnosis or treatment by medical practitioners. Moreover this technique is not recommended for the treatment or diagnosis of allergic disease by learned societies such as ASCIA and other medical experts as cited. … I have consulted published papers on the NAET technique, medical journal search engines including PubMed and Medline for specific papers that have reference to NAET but was unable to find credible scientific evidence to support the efficacy of the NAET technique. The NAET technique does not form part of the scientific literature in allergic disease. In my experience, NAET is not a medically accepted treatment for allergic disease. My decision on this is based upon my clinical experience in allergy practice, both in Australia and in the UK, my attendance at international meetings of allergy practitioners where advances in techniques are discussed, together with the failure of these techniques to be discussed in the medical text books and published practice guidelines for allergy treatments. Given the international consensus definition of allergic disease having an immunological basis, the NAET technique does not identify an underlying immunological basis for disease and therefore cannot be said to accurately diagnose and treat allergies. In my experience and in my understanding of current practice and science in the field of allergic disease, the NAET technique is not a medically validated or reproducible method for the diagnosis and/or treatment of allergic diseases. In my clinical practice and experience, NAET, muscle strength testing, diagnostic resonance testing, kinesiology, dowsing, radionics, homeopathy, the ALCAT tests, electrodermal testing, herbal therapies, detoxification, chinese medicine, acupuncture, acupressure, enzyme supplements or probiotics do not comprise methods of diagnosis or treatment of allergic disease with scientific evidence to support their efficacy. The reports cited that I have read do not provide a rational scientific basis for the diagnosis or treatment of allergic disease for any of the techniques referred to above. I am supported in this by national and international publications … I am concerned that an individual with a serious allergy who has undergone the NAET technique treatment may falsely consider themselves cured and thereby expose themselves to risk by consuming a food which has previously provoked a reaction and which they have previously avoided. The muscle strength test or electrodermal testing is not a validated method for detecting IgE to food allergens. Individuals at risk of anaphylaxis due to food allergy with high levels of IgE to a food are unlikely to be diagnosed by these techniques and are therefore unlikely to receive appropriate food avoidance advice. In addition, such patients will be denied the often life-saving measures of an emergency plan and therapy. This could have severe outcomes.
The declarations 18 The Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) ("Consumer Law") introduced significant amendments to the Trade Practices Act, including, by Schedule 5, item 2, changing its name to the Competition and Consumer Act 2010 (Cth). 19 Schedule 7 to the Consumer Law, entitled "Transitional matters", states at item 6: (1) The Trade Practices Act 1974 as in force immediately before the commencement of this item continues to apply, after that commencement, in relation to acts or omissions that occurred before that commencement; (2) Without limiting sub-item (1), action may be taken, under or in relation to Part … VI of that Act as so in force, in relation to those acts or omissions. 20 Thus, in the present case, the Trade Practices Act applies to the conduct at issue and, save for the injunction against the third respondent and orders in relation to training, governs the relief. 21 The matters necessary to establish the relevant contraventions of the Trade Practices Act are (save for s 55A, on which case law provides little guidance) well established and it is unnecessary to discuss them in detail. 22 In Australian Competition and Consumer Commission (ACCC) v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; (1999) ATPR 41673, French J observed that "[i]n the making of consent orders and the acceptance of undertakings the court must not exceed its power" (at [17]) but equally (at [20]) that: It is not the function of the court to impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court's jurisdiction and are otherwise unobjectionable… 23 In Australian Competition & Consumer Commission v Econovite Pty Ltd (2003) ATPR 41-959, French J stated (at [12]) that: While courts are conscious of the public interest in settling cases they must also be aware that the laws they apply are public laws. Proposed consent orders must be scrutinised to determine that they are within power and appropriate. 24 In Australian Competition and Consumer Commission (ACCC) v Jetplace Pty Ltd [2010] FCA 759 at [55], Gilmour J stated that, in deciding whether it was appropriate to make declarations in an ACCC instituted proceeding, the court: … looked to the public interest nature of the proceedings and the public interest role the applicant has in enforcing the Act … More specifically, the court has observed that declarations: (a) are an appropriate vehicle to record the court's disapproval of the contravening conduct: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 100; (b) serve to vindicate the applicant's claim that the respondent contravened the Act: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd at [30]; (c) are of some assistance to the applicant in future in carrying out the duties which are conferred upon it by the Act: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [[2000] FCA 1885] at [34]; (d) are of assistance in clarifying the law: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd at [34]; and (e) may inform consumers of the dangers arising from a respondent's contravening conduct: Australian Competition and Consumer Commission v Pacific Dunlop Ltd [2001] FCA 740, at [59]-[69]. 25 In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960, Finkelstein J considered whether a court might properly, by consent, make declarations in terms broadly similar to those sought in this case, on the basis of a statement of agreed facts. In the case before him, his Honour observed that initially the only evidence of contravention was a statement of agreed facts and if an expert medical report had not been subsequently tendered, he would not have made the declarations. 26 Finkelstein J (at [10]-[13]) discussed various articulations of the traditional rule governing the making of declarations by consent, admission or default of pleading expressed in the following commonly cited statement of Buckley LJ in Wallersteiner v Moir [1974] 1 WLR 991 at 1029: It has always been my experience and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v Powell [1894] WN 141, where Kekewich J., whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence. If declarations ought not to be made on admissions or by consent, a fortiori they should not be made in default of defence, and a fortissimo, if I may be allowed the expression, not where the declaration is that the defendant in default of defence has acted fraudulently. Where relief is to be granted without trial, whether on admissions or by agreement or in default of pleading, and it is necessary to make clear upon what footing the relief is to be granted, the right course, in my opinion, is not to make a declaration but to state that the relief shall be upon such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation. 27 Finkelstein J noted recent endorsement and examples of departure from the strictness of the traditional rule, particularly in a number of New South Wales cases (discussed at [16] and [17] of his reasons), in which it was accepted that although a declaration may be made only when the court is satisfied by relevant evidence, such evidence may "include 'facts' admitted to be true but about which there is no evidence (eg facts contained in a statement of agreed facts)" (at [16]). 28 His Honour considered that none of the New South Wales cases explained why a departure from the rule was justified (at [17]) and concluded (at [19]): For the time being, at least until a Full Court holds otherwise, it is, in my view, incumbent upon a single judge of the Federal Court to follow BMI [BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401] and therefore not grant a declaration involving a public right in the absence of evidence that supports the declaration. In contrast, in a number of recent comparable applications by the ACCC, judges of the Federal Court have granted declaratory relief on the basis of a statement of agreed facts. 29 As Finkelstein J recognised, in a number of recent comparable applications by the ACCC, judges of the Federal Court have granted declaratory relief on the basis of a statement of agreed facts. See ACCC v Jetplace Pty Ltd [2010] FCA 759 at [52]; ACCC v Cosic Holdings Pty Ltd [2009] FCA 1579; ACCC v Wilson Parking 1992 Pty Ltd [2009] FCA 1580; Minister for the Environment, Heritage & the Arts v PGP Developments Pty Limited (2010) 183 FCR 10 30 In Australian Competition and Consumer Commission (ACCC) v Cosic Holdings Pty Ltd [2009] FCA 1579 ("Cosic"), Barker J stated at [49]-[51]: I am satisfied that on the material before the court and in light of the statement of agreed facts to which the parties to this proceeding have subscribed and the court has received, it is appropriate for the court to make the declarations sought without requiring the taking of evidence in a more formal way. In taking this practical approach it seems to me relevant to note that the application is that of the ACCC, a public agency charged with the administration of these relevant consumer provisions of the Act, and that the agreement between the parties of the facts that are relevant to the outcome of the case and the orders that should be made follow pleadings filed and served by the parties. It is appropriate in such circumstances for the court to treat the information put forward if not strictly "evidence" then as sufficiently reliable for the court to act upon. Further, the parties are represented by experienced, competent solicitors and counsel and are fully aware of the consequences of the making of the declarations. … In general terms I consider that enforcement proceedings under the Act brought by the ACCC, the objects of the Act, and the overarching principles that ought govern a proceeding such as this, in terms of expedition and costs, all support the view that the court should be prepared to entertain the making of declarations by consent on the basis of the sort of information currently before the court. I note that in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd, Finkelstein J of this court, at [16], noted a number of New South Wales Supreme Court decisions that have followed the course that I now propose to adopt, but different from what his Honour there proposed. In those other decisions the court had acknowledged the general rule that a declaration on a matter relating to a public or analogous right should not be made by consent. However, those cases considered that a declaration could be made if the court was satisfied by evidence that it ought to be made, the "evidence" to which regard may be had, including "facts" admitted to be true about which there is no direct evidence - facts, for example, contained in a statement of agreed facts. I am persuaded that the approach adopted in such cases as Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500, referred to by Finkelstein J at [16], provide useful guidance in this regard. 31 In the present case, Associate Professor Douglass' report constituted cogent, uncontradicted expert evidence supporting the declaratory relief sought. It was therefore unnecessary to determine whether the court could properly make the declarations solely on the basis of the statement of agreed facts. 32 The evidence of a qualified expert may be necessary to satisfy a court from which declarations dependent on the accuracy of medical, scientific or technical matters are sought, in the absence of an active contradictor. In my opinion, however, such evidence may not be necessary in every case. In some circumstances, evidence constituted by facts admitted to be true (incorporated, for example, in a statement of agreed facts without direct evidence thereof) may suffice. 33 In the present case I was satisfied, on the basis of Associate Professor Douglass' report, fortified by the statement of agreed facts, that the declarations should be made, in circumstances where, as the joint submissions stated: It may immediately be noted that the Proposed Declarations: (a) are sought by the ACCC in its capacity as the Commonwealth agency responsible for enforcing the TPA; and (b) identify specific conduct engaged in by the Respondents. The proposed Declarations are directed to the determination of a legal controversy, and not to answering abstract or hypothetical questions. The ACCC contends and the Respondents admit, to engaging in conduct in contravention of the TPA. The Proposed Declarations determine that the conduct alleged, which the Respondents admit, did contravene the TPA in the manner stated. The ACCC is a Commonwealth Government agency responsible for enforcing the TPA, and therefore has a real interest in seeking the Proposed Declarations. The making of the Proposed Declarations in this case will result in real consequences including: (a) it will vindicate the ACCC's claim that the Respondents contravened sections 52, 53(aa), 53(c) and 55A of the TPA in the manner stated; (b) it will assist the ACCC in performing its statutory duties, especially in relation to consumers and small businesses because it may alert, or may be used to alert, relevant individuals and market participants of the kind of conduct that may contravene the TPA; (c) the Respondents are "proper contradictors", because they are the persons whose conduct is referred to in the Proposed Declarations and who have an interest in opposing the Proposed Declarations; and (d) the making of the Proposed Declarations is in the public interest. The Proposed Declarations will serve to mark the Court's disapproval of the particular conduct engaged in contravention of the TPA. It is important that on matters involving the safety of the public, the Court makes declarations as sought. In this case, the Respondents' conduct concerns false and misleading representations in relation to the therapeutic benefits of various allergy treatments. The representations are therefore directed to issues concerning the health and wellbeing of consumers who choose to use, or are considering choosing to use, the goods or services of the Respondents.
The injunction 34 Further, I was satisfied that the injunction against the third respondent should be made pursuant to s 232 or, if necessary, s 233 of the Consumer Law which, since 1 January 2011, confer the power to make injunctions for proceedings commenced under the Trade Practices Act before that date. 35 Schedule 7, item 7 of the Consumer Law states: Proceedings already commenced (1) The Trade Practices Act 1974 as in force immediately before the commencement of this item continues to apply to or in relation to any proceedings, under or in relation to that Act, that were commenced, but not concluded, before that commencement. (2) However, to the extent that any such proceeding are proceedings for an injunction under section 80 of that Act as so in force, the proceedings are taken, after that commencement, to be proceedings for an injunction under section 232 of the Australian Consumer Law. 36 Section 232 of the Consumer Law provides: Injunctions (1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of a provision of Chapter 2, 3 or 4; or (b) attempting to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision. (2) The court may grant the injunction on application by the regulator or any other person. (3) Subsection (1) applies in relation to conduct constituted by applying or relying on, or purporting to apply or rely on, a term of a consumer contract that has been declared under section 250 to be an unfair term as if the conduct were a contravention of a provision of Chapter 2. (4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind. (5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business): (a) for a specified period; or (b) except on specified terms and conditions. (6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following: (a) refund money; (b) transfer property; (c) honour a promise; (d) destroy or dispose of goods. (7) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised: (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing. 37 Section 233 of the Consumer Law provides: Consent injunctions If an application is made under section 232, the court may, if it considers that it is appropriate to do so, grant an injunction under this section by consent of all the parties to the proceedings, whether or not the court is satisfied as required by section 232(1). 38 The authorities on s 80 of the Trade Practices Act provide some guidance on the construction of s 232 of the Australian Consumer Law. 39 Under s 80 of the Trade Practices Act, injunctions could be made when it was in the public interest to do so (Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [212], [216]), notwithstanding that it was unlikely that the contravener would repeat the contravening conduct. 40 In ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 255, Lockhart J, with whom French J agreed, stated: Section 80 is essentially a public interest provision. Conduct of the kind proscribed by both Pts IV and V may be detrimental to the public interest because many persons can be affected and considerable loss or damage may be sustained by them. 41 I was satisfied that, in this case, as the parties submitted, the admitted facts disclosed a sufficient nexus between the conduct alleged and the orders sought, the injunction was stated with the requisite clarity and precision and would not require continual supervision by the court.
conclusion 42 I was satisfied that the declarations and orders should be made and the undertakings accepted in the terms proposed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.
Australian Competition and Consumer Commission
Willesee Healthcare Pty Ltd
[2001] FCA 740
(1999) 161 ALR 79
(2003) 200 ALR 491
(1992) 38 FCR 248
(1993) 41 FCR 89
(1983) 51 ALR 401
(2010) 183 FCR 10