1. The proceeding was commenced by a writ filed in the Supreme Court on 9 March 2022. The plaintiffs served a proposed statement of claim on the defendants on 16 December 2022. After that, the plaintiffs served various proposed versions of the statement of claim, and on two occasions John Dixon J refused them leave to file their proposed statement of claim. On 15 September 2023, the plaintiffs filed and served the statement of claim (which was the sixth version of the statement of claim).
2. On 24 May 2024, the plaintiffs sought leave, by way of summons, to file and serve an amended statement of claim (which was the eighth version of the statement of claim).
3. On 7 June 2024, Lanzer and four of the other defendants (Aronov, the estate of Darbyshire, Wells and Fallahi - hereafter, the 'four other doctors') filed applications seeking to strike out or summarily dismiss parts of the statement of claim and a notice of objection opposing the plaintiffs' application for leave to file the amended statement of claim.
4. On 2 October 2024, Forbes J granted the plaintiffs leave to file and serve the proposed amended statement of claim, subject to some presently irrelevant changes, and dismissed Lanzer's and the third to sixth defendants' applications seeking orders to strike out or summarily dismiss parts of the previous statement of claim.[6]
5. Lanzer now seeks leave to appeal against certain aspects of Forbes J's decision in relation to the plaintiffs' claim of misleading and deceptive conduct under the ACL. Although Lanzer sought to persuade the judge to strike out or summarily dismiss the entirety of this claim, he does not now challenge the judge's refusal to grant that relief. Instead, he seeks leave to appeal against Forbes J's decision to grant the plaintiffs leave to amend certain paragraphs within that claim and to dismiss his summonses seeking summary dismissal or strike out of those paragraphs. This application is therefore not concerned with the broader way in which the claim of false, misleading and deceptive conduct is pleaded, but with the framing of specific allegations within that claim.
6. In summary, Lanzer's proposed grounds of appeal[7] were as follows:

(a) Ground 1 was that the judge erred in permitting the plaintiffs to plead 'allegations of implied representations to "potential patients"'; and

(b) Ground 2 was that the judge erred in permitting the plaintiffs to plead allegations 'relating to unidentified material published on "social media accounts"' that allegedly conveyed the 'Pre-Eminence Representation' and the 'Excellent Service Representation'[8] (together, the 'impugned representations').

Lanzer contended that the paragraphs in question 'did not disclose a cause of action and would prejudice, embarrass or delay the fair trial of the proceedings'. He sought an order striking out those paragraphs, in whole or in part.

1. The four other doctors filed a cross-application for leave to appeal. Ground 1 of the cross-application adopted Lanzer's grounds in his application for leave to appeal and sought the same orders as Lanzer. Grounds 2 and 3 of the cross-application were, in summary, that the judge ought to have found that the accessorial liability claims against the four other doctors have no real prospect of success or are hopelessly doomed to fail[9] or failed to disclose a cause of action or would prejudice, embarrass or delay the fair trial of the proceeding.[10] In respect of these grounds, the four other doctors sought an order that the allegations of accessorial liability be summarily dismissed or an order that the relevant paragraphs be struck out.
2. For the reasons that follow, we would:

(a) refuse Lanzer leave to appeal on ground 1;

(b) grant Lanzer leave to appeal on ground 2 and allow the appeal on that ground; and

(c) refuse leave to cross-appeal.

The steps in the proceeding concerning the statement of claim

1. As noted above, the proceeding was commenced by writ filed in the Supreme Court on 9 March 2022. It concerns claims arising from cosmetic surgery procedures performed at various medical clinics around Australia.[11]
2. The proceeding is a group proceeding brought pursuant to Part 4A of the Supreme Court Act 1986. The class is currently defined as all persons who have claims for loss or damage based on negligence, breach of contract or consumer law breaches in the context of cosmetic surgery being performed on them by Lanzer[12] and/or the other doctors (Aronov,[13] Darbyshire,[14] Wells,[15] Fallahi,[16] and/or Wong[17]) for payment made to DCSS.[18]
3. The claim, as presently pleaded, alleges four causes of action:

(1) negligence;

(2) breach of contract;

(3) breaches of:

(a) section 18 of the ACL, which prohibits misleading or deceptive conduct in trade or commerce;

(b) section 29 of the ACL, which prohibits false or misleading representations about goods or services; and/or

(c) section 34 of the ACL, which prohibits misleading conduct as to the nature of services; and

(4) breaches of:

(a) section 60 of the ACL, which provides for a statutory guarantee as to due care and skill in the supply of services; and

(b) section 61 of the ACL, which provides for a statutory guarantee that services provided in trade or commerce will be reasonably fit for a particular purpose.

1. For convenience we will refer to the claim based on false, misleading or deceptive conduct as 'the ACL claim', even though there is also an additional ACL claim based on alleged breaches of statutory guarantees.
2. In relation to the ACL claim, the amended statement of claim alleges that DCSS operated a system for the purpose of selling cosmetic surgery services (the 'DCSS Sales System'). The DCSS Sales System is alleged to involve the advertisement of cosmetic surgery services on a website (the 'Lanzer Website'), through which potential patients made contact with DCSS by completing a form.[19]
3. The amended statement of claim also alleges that various representations were made on the Lanzer Website and/or through social media posts made by or on behalf of Lanzer. The alleged representations are defined in the amended statement of claim as follows:

(a) the 'Specialist Surgeon Representation';

(b) the 'Pre-Eminence Representation';

(c) the 'Plastic Surgeon Representation';

(d) the 'Personal Line to Lanzer Representation';

(e) the 'Independent Psychologist Representation'; and

(f) the 'Excellent Service Representation'.[20]

1. We shall refer to all of the representations simply as 'the representations'; as noted above, we shall separately refer to the 'Pre-Eminence Representation' and the 'Excellent Service Representation' as the 'impugned representations'.
2. The common questions identified in the amended statement of claim in relation to the ACL claim relevantly include:

(a) whether DCSS and/or Lanzer and/or the other doctors made the representations to the plaintiffs, group members and the public;

(b) whether the other doctors and/or Wainstein were 'involved' in DCSS and/or Lanzer making the representations; and

(c) whether the representations were false, misleading or deceptive, in breach of the ACL.

1. On 7 October 2022, John Dixon J granted leave for the plaintiffs to file an amended writ and general indorsement of claim. On 16 December 2022, the plaintiffs served on the defendants a proposed statement of claim (the first version of the statement of claim).
2. On 7 March 2023, the plaintiffs served a proposed statement of claim (the second version of the statement of claim). On 3 April 2023, John Dixon J refused leave to file the second version of the statement of claim. The plaintiffs were ordered to serve an amended proposed statement of claim.
3. On 6 June 2023, the plaintiffs served a further proposed statement of claim (the third version of the statement of claim) in accordance with the orders of John Dixon J dated 3 April 2023. The filing of the third version of the statement of claim was opposed by the defendants.
4. On 25 July 2023, the plaintiffs served another proposed statement of claim (the fourth version of the statement of claim). On 10 August 2023, John Dixon J refused the plaintiffs leave to file the fourth version of the statement of claim and required the plaintiffs to replead in accordance with his ruling.[21] His Honour said that the plaintiffs were to serve a further proposed statement of claim by 6 September 2023 and that the defendants should, by 13 September 2023, either state that they will not oppose leave being granted or file and serve an outline of their contentions against leave being granted.[22]
5. On 30 August 2023, the plaintiffs served another proposed statement of claim (the fifth version of the statement of claim). All parties consented to the filing of the fifth version of the statement of claim; however, Lanzer and the four other doctors consented on the basis of certain conditions, as follows:

(a) Lanzer consented subject to: the prompt provision of further and better particulars, including in relation to alleged social media posts; inviting the plaintiffs to remove certain allegations before filing the claim; and reserving Lanzer's rights generally, as well as in relation to particulars, the appropriateness of the common questions and the appropriateness of the proceeding continuing under Part 4A.

(b) The four other doctors consented subject to:

(i) the right to seek further and better particulars in relation to the allegations in the statement of claim once filed, and subject to the adequacy and/or the absence of same;

(ii) the right to apply to strike out any offending paragraphs of the statement of claim filed; and

(iii) reserving their rights generally in respect of the proceedings.

1. On 15 September 2023, the plaintiffs filed and served the statement of claim, dated 11 September 2023, pursuant to John Dixon J's order (this was the sixth version of the statement of claim).
2. On 30 October 2023, Lanzer requested further and better particulars of the statement of claim, specifically seeking particulars of the social media posts accessed by each plaintiff that conveyed the alleged misrepresentations.
3. By 22 December 2023, each defendant (save for Darbyshire) had filed a defence to the statement of claim.
4. On 4 March 2024, the plaintiffs wrote to Lanzer and stated that they could not, at that stage, provide any further and better particulars of the social media claims.
5. On 27 March 2024, the plaintiffs provided the defendants with a proposed amended statement of claim (which was the seventh version of the statement of claim). On 24 April 2024, pursuant to an order made by Keogh J, the parties met to confer in relation to outstanding issues related to the proposed amended statement of claim. On 8 May 2024, the plaintiffs filed a list of unresolved issues related to the statement of claim and particulars.
6. On 9 May 2024, the day before a case management conference where the Court was to determine whether leave to file the seventh version of the statement of claim would be granted, the plaintiffs notified the defendants that additional amendments would need to be made.
7. On 10 May 2024, at the case management conference, Keogh J made orders for:

(1) the plaintiffs to make any proposed application for leave to file and serve an amended statement of claim;

(2) the defendants to make any objection to the plaintiffs' application for leave to file and serve an amended statement of claim; and

(3) the defendants to make any application relating to the statement of claim, including strike out or summary dismissal applications.

Keogh J referred the parties' applications to Forbes J.

1. On 24 May 2024, the plaintiffs sought leave, by way of summons, to file and serve an amended statement of claim (which was the eighth version of the statement of claim). The material changes to the statement of claim in relation to the ACL claim were:

(1) a new claim of misleading and deceptive conduct, based on an implied representation that the defendants (other than the eighth defendant) had specialist surgical training and qualifications;

(2) the representations were alleged to have been made to 'potential patients', including each of the plaintiffs and group members, instead of to 'the public'; and

(3) the plaintiffs' claim for loss and damage arising out of the alleged misconduct was articulated in a different way.

1. On 7 June 2024, Lanzer filed an application seeking strike out or summary dismissal of parts of the statement of claim and a notice of objection opposing the plaintiffs' application of 24 May 2024 for leave to file and serve the proposed amended statement of claim. By the application and notice of objection, Lanzer objected to the following allegations within the ACL claim:

(a) the allegation that each of the representations was made to 'the public', contained in paragraphs 94 to 96, 97(g), 98(h), 99(f), 100(h) and 101(b) of the statement of claim, together with each reference to the 'public' in paragraphs 88, 106 to 108 and 218; and

(b) the allegation that the representations, or some of the representations, were made by the publication of content on 'social media' accounts, contained in paragraphs 94(b), 95, 97(a)(ii), 97(g), 98(a)(ii), 98(h), 100(a)(ii), 100(h), 101(b), 103(e)-(g), and 104 of the statement of claim, together with each reference to 'social media', 'Instagram' or 'TikTok' in paragraphs 97(a), 98(a), and 100(a); and

(c) the allegation that each of the representations was made to 'potential patients', contained in paragraphs 88 and 94 to 96 of the proposed amended statement of claim; and

(d) the allegation that the representations, or some of the representations, were made to plaintiffs and group members via social media, contained in paragraphs 96A to 100 of the proposed amended statement of claim.

1. The four other doctors also filed strike out and summary dismissal applications, as well as notices of objection to the plaintiffs' application for leave to file and serve the proposed amended statement of claim. They relevantly contended that the material facts alleged in paragraphs 96 and 102 of the proposed amended statement of claim could not establish that any of them had actual knowledge of, participated in or assented to each element of the wrongdoing. Therefore the proposed pleading was not capable of supporting a claim that they were 'involved' in a contravention of the ACL. Thus, they contended, leave to file the proposed amended statement of claim should be denied and the corresponding paragraphs of the statement of claim ought to be struck out.
2. On 2 October 2024, Forbes J handed down her judgment, relevantly granting the plaintiffs leave to file and serve the proposed amended statement of claim, subject to some presently irrelevant changes, and dismissing Lanzer's and the four other doctors' applications seeking orders striking out or summarily dismissing parts of the statement of claim.[23] On 14 November 2024, her Honour made an order giving effect to her reasons and granting the plaintiffs leave to file and serve an amended statement of claim substantially in the form of the proposed amended statement of claim dated 24 May 2024, subject to the presently irrelevant changes.
3. On 15 November 2024, Forbes J handed down her reasons in relation to costs and made orders giving effect to those reasons. These included orders that Lanzer, along with the four other doctors, pay the plaintiffs' costs of their application for leave to file the proposed amended statement of claim, and that Lanzer pay the plaintiffs' costs in respect of his application for strike out or summary dismissal of parts of the statement of claim.[24]
4. On 14 November 2024, the plaintiffs filed and served an amended statement of claim pursuant to the leave granted by Forbes J. Each defendant has filed a defence to the amended statement of claim.
5. In addition, we were informed at the hearing that an Associate Justice made an order for discovery of documents, including documents concerning social media posts made by Lanzer. The date for compliance with that order has passed, but no documents have been produced by Lanzer to date. We were informed from the bar table that the failure to comply with the timetable for discovery was due to circumstances beyond Lanzer's control. The production of documents had not been delayed as a consequence of the present application.
6. We were further informed that, if Lanzer were to be successful in relation to ground 2 of his application, that would potentially have some impact on the scope of discovery required under the order, subject to an application being made for a variation of the order. However, such success would not remove the requirement for discovery of social media posts altogether, because social media posts containing, for example, the phrase '#plasticsurgery' or '#plasticsurgeon' would still be required to be discovered in relation to the allegation that the 'Plastic Surgeon Representation' was made in social media posts, which allegation was not the subject of challenge on the application for leave to appeal. Counsel acknowledged that discovered social media posts containing this phrase may also convey the impugned representations. Counsel was not able to assist us with any information or evidence concerning the extent of the impact on discovery if the parts of the pleading concerning the making of the impugned representations on social media were to be struck out.

1. The application for leave to appeal is concerned with the proper pleading of the plaintiffs' allegation that some of the defendants, including Lanzer, have engaged in false, misleading or deceptive conduct in contravention of ss 18, 29 and 34 of the ACL through the publication of website content, social media posts and standard contractual content, conveying the representations set out above at paragraph 16. This is the conduct that is alleged to have caused each plaintiff and group member to suffer loss or damage, for the purposes of the claim for damages under s 236 of the ACL.
2. The particular aspects of Forbes J's decision that are the subject of the application for leave to appeal concern the paragraphs of the amended statement of claim that:

(a) allege that 'representations' were made to 'potential patients' (this ground concerned all the alleged representations);[25] and

(b) make allegations relating to unidentified material published on 'social media accounts', 'Instagram', and 'Tik Tok' in relation to two of the alleged representations only, namely the impugned representations.[26]

1. Ground 1 of the cross-application adopts the grounds of appeal in Lanzer's application and will be dealt with in this part of our reasons.

Consideration of the application for leave to appeal

1. Under s 14C of the Supreme Court Act 1986, this Court can grant an application for leave to appeal 'only if' it is satisfied that the proposed appeal 'has a real prospect of success'. This state of satisfaction is the prerequisite to an exercise of the power to grant the leave sought. It does not follow from this, however, that the Court must grant such leave whenever the prerequisite is met. Rather, once the Court is satisfied that the proposed appeal has a real (as opposed to fanciful) prospect of success, the Court determines whether to grant leave in the exercise of the discretion in s 14C. This discretion is frequently referred to as 'the residual discretion'.[27]
2. Of course, the exercise of the discretion is not at large and is subject to the principles articulated in House v The King,[28] and the considerations to which the Court may have regard in exercising the discretion are those relevant to the power to grant or refuse leave. These may vary depending on the case at hand and on the proposed grounds of appeal. Considerations favouring the grant of leave may include the possibility that an uncorrected error may perpetuate an error of principle, adversely affect the administration of justice, or result in a relevant injustice.
3. The decisions challenged by the applicant and the cross-applicants in this case were interlocutory decisions concerning matters of practice and procedure. Decisions of this kind are quintessentially decisions requiring appellate restraint.[29] Like most decisions of this kind, they not only involve an exercise of discretion, but also an exercise of a discretion that is, generally speaking, best left to the judge designated to manage the case. That judge is likely to be more familiar with the characteristics and practicalities of the case than an appellate court. Further, while decisions on practice and procedure affect the conduct of the proceeding, they are usually not such as to prevent a fair trial. In relation to such decisions, leave to appeal will often be refused where the applicant has not satisfied the court that they would suffer 'substantial injustice' if the judge's decision is not set aside.[30]
4. In Baptcare Ltd v Ingpen, this Court said this in relation to an application for leave to appeal a judge's refusal to amend a defence:

For this Court to reconsider the judge's ruling, Baptcare must establish two things. First, a material error, in the House v The King sense, by the judge in the exercise of his discretion. Second, as the decision was concerned with the matter of practice and procedure, it must also demonstrate that it will suffer substantial injustice if the appeal is refused.[31]

1. We doubt that there is a rigid rule that a party must demonstrate substantial injustice in order to succeed on an application for leave to appeal a decision of this kind. That would be to fetter the Court's otherwise broad discretion.[32]
2. There is also another matter concerning the administration of justice more generally. If an appellate court were to hear appeals from interlocutory decisions of this kind on an unconstrained basis, the Court would find it difficult, if not impossible, to address in a timely way those appeals having 'reasonable prospects of success' against 'final' judgments, that is, those fixing the parties' rights and obligations for the future unless set aside on appeal. It is for these reasons, and perhaps others, that it has been said that a 'tight rein' is to be applied to appeals on matters of practice and procedure.[33] In requiring the applicant and the cross-applicants in this case to show not only that their proposed appeals have 'real prospects of success', but also that they will suffer substantial injustice if the judge's decision is allowed to stand, the Court gives effect to the need to keep a tight rein on appeals from interlocutory decisions on practice and procedure.

1. By ground 1, Lanzer sought to have all those paragraphs of the amended statement of claim that allege the representations were made to 'potential patients' struck out (save for paragraph 88, which would remain but the words 'potential patients' would be struck through).[34] He submitted that the prejudice from permitting the judge's decision about the 'potential patients' pleading to stand was, 'at best', that this aspect of the pleading is irrelevant and, 'at worst', the pleading concerning 'potential patients' would lead to confusion and could cause the trial to 'go off on a wrong track'. We do not accept either of these submissions.
2. The fact that the material on the Lanzer Website, and in the social media posts, was published to a wide class (either 'potential patients' or 'the public') is uncontested. The manner in which the publications were made is in our view undeniably relevant to the plaintiffs' allegation that the representations were misleading and deceptive. In the course of oral argument, Lanzer appeared to accept that, in considering whether a person was misled, the court might properly have regard to the nature of the website as being a 'generalised website'. His complaint appeared to be that this was not a matter that ought to be pleaded. But the inclusion in the pleading of a fact that, strictly, need not be pleaded does not give rise to a substantial injustice. In any event, even if Lanzer is correct, and the pleading that the representations were made to 'potential patients' or 'the public' is irrelevant, that would not amount to 'substantial injustice'. There was no suggestion that this would extend the time of the trial, or involve multiple new witnesses.
3. Lanzer's further submission was that the pleading concerning 'potential patients' would cause the trial judge to consider whether or not conduct directed towards a plaintiff is false, misleading or deceptive by reference to an indeterminate class of hypothetical persons (ie 'potential patients' or 'the public'). He submitted that such an approach would involve error because it is the plaintiffs' personal reliance on the representations and their personal circumstances that are relevant, not those of some hypothetical member of the group 'potential patients' or 'the public'.
4. In that regard, there is a dispute between Lanzer and the plaintiffs about the relevance of the fact that representations were alleged to have been made on the Lanzer Website and in the social media posts to 'potential patients'. Lanzer contends, by reference to the High Court's decision in Butcher v Lachlan Elder Realty Pty Ltd,[35] that the assessment of whether the representations were false, misleading or deceptive is to occur solely by reference to the plaintiffs and group members individually, not by reference to a hypothetical member of some broader class (such as 'potential patients'). In contrast, the plaintiffs contend, by reference to the decisions in Self Care IP Holdings Pty Ltd[36] and Karpik v Carnival plc (The Ruby Princess),[37] amongst others, that the assessment falls to be assessed by reference to a hypothetical reasonable member of the class of 'potential patients'. They sought to distinguish Butcher.
5. In relation to this issue, the judge said this:

The representations are not made in circumstances where the defendants are making statements to known individuals in a bespoke negotiation. They are made as a promotion of their services to engage a class of people in a transaction. Notwithstanding the need to prove causation and loss individually, the task of characterisation of the representations is one appropriately addressed by the analysis of the class to which those representations are directed. The proposed amendment identifies that class in a more precise way and addresses the characterisation of the conduct.[38]

1. Thus her Honour appeared to accept the approach adopted in Karpik and to have distinguished Butcher.
2. There is a question to be resolved concerning the appropriate approach to the characterisation of representations conveyed by publications to a broad group in a class action such as the present. However, the judge's interlocutory ruling does not preclude the further consideration and resolution of this issue at trial. Her Honour's decision was concerned solely with the question whether the plaintiffs should be permitted to plead that the representations were made to a class, as opposed to pleading only that they were made to the individual plaintiffs and group members.
3. Importantly, the pleading leaves open further consideration of the proper approach to the characterisation of the representations. That is, it does not identify, and in any event could not dictate, the approach the court ought ultimately take to the question of whether the representations are false, misleading or deceptive. Again, Lanzer appeared to accept as much in the course of oral argument, but contended that the pleading was nonetheless redundant and confusing. We do not accept that submission. Furthermore, even if the pleading that the representations were made to 'potential patients' were to be struck out, the correct legal framework for characterising Lanzer's conduct in making the representations to the plaintiffs and group members would remain to be determined at trial.
4. Ultimately, the question of the appropriate approach to the characterisation of Lanzer's conduct, which raises novel legal issues, can be fully ventilated at trial. Indeed, an issue of this kind is better resolved at trial, rather than on an interlocutory appeal concerning pleadings. The fact that the issue can appropriately be resolved at trial means that there is no 'substantial prejudice' in permitting the 'potential patients' pleading to remain.
5. We also note that, in their submissions, the four other doctors contended that there would be 'substantial injustice' if the judge's decision in relation to the 'potential patients' pleading was permitted to stand because of the nature of the proceeding as a group proceeding. They submitted as follows:

[I]t seems that Ms Lombardo observes statements on a website. Precisely which ones, we're not sure. Precisely when, again, we're not sure. She also observes content, whether they be written statements or oral statements or audiovisual depictions, on social media platforms. And those social media platforms convey to her a particular representation, or so the case would be. On top of that, we have physical hard-copy documents which are provided to her during her post-enquiry consultation, as that's defined in the pleading, and immediately after that.

And what's significant about that, especially in the context of a class action, is that one has to be able to take a combination of statements taken from a combination of pages on a website, and then follow them through into a combination of statements potentially appearing on any number of combination of social media posts, and follow them again through to the various documents that she's provided.

And from those various statements, one has to glean ... what objectively that all means or ... conveys, and then those thread of statements have to follow through to the group members or at least ... a subset of those group members.

... Because we don't know of the conduct that is said to give rise to the particular statements from which representations are to be conveyed, we're unable to follow through how that particular combination of website pages that might've been looked at to the particular combination of social media pages that may have been accessed by the particular lead plaintiff, and then how that all interacts with the physical documents follows its way through to the members of the class, and that's significant.

1. We accept that difficulties of the kind identified by the four other doctors may well arise, although much will depend on the evidence at trial. However, it does not appear to us that these difficulties arise by reason of the pleading that the representations were made to 'potential patients'. Rather, they arise because of the unusual nature of the group proceeding in this case - in particular, the nature of the claim, the nature of the class and the potentially diverse circumstances of the members of the class. We do not consider that the issues the four other doctors identified would be cured, or even mitigated, by striking out those parts of the amended statement of claim that plead that the representations were made to 'potential patients'.
2. Ultimately, we do not consider that either Lanzer or the four other doctors would suffer any substantial injustice if the impugned paragraphs remain in the amended statement of claim. We will thus refuse leave to appeal on ground 1.

1. Ground 2 was directed to the judge's conclusion that the plaintiffs had sufficiently pleaded the conduct upon which they rely for the purposes of their claim that the impugned representations were conveyed through social media posts. This ground does not challenge the pleading that the impugned representations were conveyed by material published on the Lanzer Website, in person, or in documents sent to the plaintiffs. Nor does it challenge the pleading in so far as it alleges that the 'Plastic Surgeon Representation' was conveyed by content published in social media posts, because the pleading alleges that representation to have been conveyed by specific, identified phrases, namely '#plasticsurgery' and '#plasticsurgeon'.
2. Lanzer contended that the substantial injustice resulting from the judge's decision on this aspect of the amended statement of claim is that the allegation that the impugned representations were conveyed by content published on social media does not have a proper basis, and that the relevant paragraphs do not disclose a cause of action. That is because the plaintiffs have not identified the conduct that is said to convey the representations with sufficient precision, by providing detail of the content of the social media posts, even by reference to the gist of the posts.
3. Lanzer relied upon the decision of the High Court in Self Care, where the Court said this about establishing whether a person had engaged in misleading or deceptive conduct:

The principles are well established. Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the 'conduct' said to contravene s 18; second, considering whether the identified conduct was conduct 'in trade or commerce'; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was 'misleading or deceptive or ... likely to mislead or deceive'.

The first step requires asking: 'what is the alleged conduct?' and 'does the evidence establish that the person engaged in the conduct?'. The third step considers what meaning that conduct conveyed to its intended audience. ...

The third and fourth steps require the court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons.[39]

1. In particular, Lanzer contended that the judge conflated steps one and three, in that her Honour concluded that the pleaded conduct was the representation, rather than identifying the conduct and then ascertaining what representation was conveyed by that conduct. Lanzer pointed in particular to the following passage from the judge's decision:

The proposed pleading does not meld the two steps. It identifies six representations (conduct), it identifies as best it can at present, the words both express and implied that conveyed those representations (at paragraphs [94] and [95] of the [proposed amended statement of claim]) and separately identifies the character or meaning that was likely to lead those who saw them into error. Both on the Lanzer website and the identified social media posts the relevant conduct is identified as the specific representations.[40]

1. We pause to note that, before the judge, Lanzer relied on the following passage from Hayne J's judgment in Google Inc v Australian Competition and Consumer Commission:

Melding the two issues of conduct and characterisation is apt to distract and confuse. Especially is that so if the melding is achieved by using the language of misrepresentation to give a single composite description of both the conduct and its character. Describing the alleged misleading or deceptive conduct as 'making a misrepresentation' is distracting and confusing for at least three reasons.[41]

1. This form of 'melding' is, in substance, a melding of steps one (conduct), three (representations) and four (misleading or deceptive) identified in Self Care. It was this passage in Google, and the melding there identified (by describing the conduct as 'making a _mis_representation'), to which her Honour's analysis was directed.
2. However, before this Court, Lanzer accepted that this passage from Google was something of a 'red herring', because the amended statement of claim did not 'meld' steps one, three and four from Self Care - that is, it did not plead that the conduct was the 'making of a misrepresentation'. Rather, Lanzer contended that the judge had 'melded' steps one and three from Self Care, by accepting that it was permissible for the plaintiffs to plead that the relevant conduct was the making of a representation.
3. Before this Court, Lanzer accepted that in Google, Hayne J had said that it 'will often be possible to identify the relevant conduct as the making of one or more representations'[42] (which was a statement the judge relied upon for her analysis[43]). But, Lanzer contended, that proposition did not apply when the representation is not alleged to be the express words that were used. He submitted that Hayne J's remark in Google could not be characterised as 'cutting across' the High Court's decision in Self Care.
4. We accept Lanzer's submission that the judge conflated (or 'melded') steps one and three in Self Care, and that her Honour did so in circumstances where that melding was inappropriate. That is because the plaintiffs have pleaded that the impugned representations are to be implied (or at least partly implied) from 'content' published on social media. In such a case, the conduct and the representations are not the same. They thus cannot be conflated in this way.
5. In our opinion the judge's error was material. The consequence of the error was that the judge did not then properly consider, applying the correct principles, whether the plaintiffs have sufficiently pleaded the conduct said to have conveyed the impugned representations. We consider that they have not. Once it is accepted that the conduct in this case cannot simply be the making of a representation, it is necessary for the plaintiffs to plead with precision the conduct that they say gave rise to the impugned representations.
6. In that regard, John Dixon J had found the earlier statement of claim to be deficient in relation to the social media posts:

The social media accounts/profiles are not particularised in the usual way and the plaintiffs say they cannot particularise them prior to discovery as they have been taken down. Although the pleading is not explicit about this, I accept that the precise content of the social media accounts is now peculiarly within the knowledge of the defendants. ... At this point the plaintiffs have not identified, as they should, whether or when they read any statements on particular identifiable social media accounts that either constituted the representations or the material from which they may be inferred, with proper particulars of their best general allegations about their content, even if qualified by the common reservation of the right to give further particulars at a later point. Given the nature of presentation of content on social media accounts, it is difficult to identify the role of such accounts in communicating the representations to the plaintiffs, let alone group members and there may be real difficulties in now identifying the relevant social media without the best particulars the plaintiffs can presently provide.[44]

1. In our view, the amended statement of claim did not address the defects identified by John Dixon J in relation to the social media posts. In short, the pleading does not identify with precision the conduct said to have misled or deceived the group members or the individual plaintiffs.
2. In relation to group members, paragraph 96A of the amended statement of claim pleads that 'some or all of the Group Members accessed Lanzer's social media posts which conveyed' the Pre-Eminence, Plastic Surgeon and Excellent Service Representations. The relevant particulars to paragraph 96A state that these representations were conveyed by 'content published on Lanzer's Instagram and Tik Tok accounts, further particulars of which will be provided after discovery or subpoena'. In other words, there is no precise pleading of the nature of the posts that group members are alleged to have seen (for example, whether they contained text, photographs and/or video), of the contents of the social media posts, or of the gist of their content. Importantly, there is no allegation that any of the group members saw the specific social media posts given as examples in the particulars to paragraph 94.
3. In relation to the first plaintiff, the pleaded fact in paragraph 97 of the amended statement of claim is that 'Lombardo accessed material published on Lanzer's social media accounts'. The particulars to that material fact are as follows:

Lombardo maintained an Instagram account and commenced 'following' Dr Lanzer's Instagram profile at '@drlanzer' from around September 2020 onwards. Lombardo was exposed to Dr Lanzer's Instagram posts repeatedly thereafter. Lombardo did not 'follow' Lanzer's Tik Tok account but Dr Lanzer re-posted on Instagram videos that had been posted on Tik Tok, which was apparent to Lombardo because of the 'Tik Tok' emblem that appeared on such videos. Further particulars of the posts that Lombardo read will be provided after discovery.

1. Similar pleadings and particulars are included for two of the other three plaintiffs at paragraphs 98 and 100.
2. Again, there is no allegation that any of the individual plaintiffs saw the specific social media posts given as examples in the particulars to paragraph 94. Nor do paragraphs 97, 98, 99 or 100 state that the plaintiffs read any particular identifiable social media posts that either expressly conveyed the representations or contained the material from which the alleged representations might be inferred. There is no attempt on the part of the individual plaintiffs to make any allegation about the specific nature of the content of the posts. They do not plead whether the posts contained words, images or videos; nor do they plead the gist of the content of the posts that they saw.
3. In that regard, we do not accept the plaintiffs' submission that the gist of the social media content is properly identified by the pleading of the representations. Rather, what was required was a pleading of (at least) the gist of what the plaintiffs saw or read on the social media posts, even if they could not recall accurately any express words. The absence of such a pleading means that the pleading fails to disclose a cause of action in relation to the making of the impugned representations through social media.
4. The deficiency in the pleading also needs to be understood and evaluated in light of the unusual circumstances of this case, which is a class action involving, we were told, a class of potentially thousands of persons, and potentially tens of thousands of social media posts. Each member of the class will have read or seen a different combination of social media posts, thus leading to a very complex proceeding. In that context, it is not possible for Lanzer or the four other doctors to know the case against them in the absence of a more precise pleading of the content or gist of the content of the social media posts that are said to have conveyed the impugned representations.[45]
5. We accept that it is relevant that the alleged conduct involves the publication of content on social media. Social media posts are generally short. Some involve images or video. They are generally viewed in a fleeting manner. They are not documents that are routinely kept by the person who has read or viewed them. Indeed, as the judge observed, such posts are peculiarly within the control of either the maker of the post (who can cause the post to be removed from public access) or the social media company. Some people - perhaps many people - who read or view a social media post will not remember precisely, or clearly, the content of the post. Nonetheless, for the purposes of a claim for damages for misleading or deceptive conduct, it is necessary for the plaintiffs to identify with some precision the content, or at least the gist of the content, of the social media posts that they allege conveyed the representations.
6. In effect, if the pleading remains in its current form, Lanzer and the four other doctors will be required to face allegations that do not disclose a cause of action. In addition, they will be required to make discovery of documents that they would not otherwise be required to discover.
7. Ultimately, we consider that Lanzer and the four other doctors would suffer a substantial injustice if the judge's decision is permitted to stand in relation to the parts of the amended statement of claim that allege the impugned representations were made on social media. For that reason, we would grant leave to appeal on ground 2 and allow the appeal on that ground. We deal later with the orders that ought to follow from this conclusion.

1. As we have noted above, the cross-application by the four other doctors (Aronov, the estate of Darbyshire, Wells and Fallahi) seeks orders identical to those sought by Lanzer in the application for leave to appeal and on the same grounds. This aspect of the cross-application has already been dealt with above.
2. In addition, the four other doctors also contended that the judge erred in failing to dismiss or strike out those parts of the statement of claim that allege that they are liable as accessories to DCSS's and Lanzer's contraventions of the prohibitions on false, misleading and deceptive conduct in the ACL and are thereby 'persons involved' in those contraventions within the meaning of s 2 of the ACL.
3. The accessorial liability claims are pleaded in paragraph 96 and 102 of the amended statement of claim.
4. Paragraph 96 (which concerns publication to 'potential patients') is as follows:

Further each of the Other Cosmetic Doctor Defendants were directly or indirectly knowingly concerned in or party to DCSS and Lanzer making the Specialist Surgeon, Pre-Eminence and Excellent Service Representations to potential patients through the Lanzer Website, in circumstances where:

(a) the Other Cosmetic Doctor defendants (save for Darbyshire) were advertised on the Lanzer Website;

(b) the Other Cosmetic Doctor defendants made a commercial gain or were to commercially gain from the Lanzer Website because the Lanzer Website generated customers;

(c) the Other Cosmetic Doctor defendants knew that the Specialist Surgeon, Pre-Eminence and Excellent Service Representations were being made to potential patients on the Lanzer Website;

(d) the Other Cosmetic Doctor defendants knew that the Specialist Surgeon, Pre-Eminence and Excellent Service Representations were false, misleading or deceptive in the ways pleaded at paragraphs 88A, 89 and 94 above.

1. Paragraph 96 contains the following 'particulars of knowledge':

The knowledge of the Other Cosmetic Doctor Defendants is to be inferred from the following:

1. That the Other Cosmetic Doctor Defendants (save for Darbyshire) were personally advertised on the Lanzer Website;

2. That the Other Cosmetic Doctor Defendants engaged in trade or commerce and at the Lanzer Clinics in the circumstances identified in paragraph 9;

3. That the Other Cosmetic Doctor Defendants had a commercial interest in the quality of promotional content on the Lanzer Website;

4. That the profiles of Aronov, Wells and Wong that appeared on the Lanzer Website appear to be based on information personally provided by Aronov, Wells and Wong;

5. That the Representations concerned the capabilities and competencies of the Other Cosmetic Doctor Defendants personally and the cosmetic surgery services that the Other Cosmetic Doctor Defendants provided.

6. That the Lanzer Website formed part of the DCSS Sales System, within which the Other Cosmetic Doctor Defendants performed cosmetic surgery services.

1. Paragraph 102 of the amended statement of claim pleads that the four other doctors 'aided, abetted or procured, or alternatively were knowingly concerned in or party to, DCSS and Lanzer making the Representations to the Plaintiffs and the Group Members (as alleged in paragraphs 96A to 100) and consequently were "involved" in making the Representations within the meaning of section 2 of the ACL'. Six circumstances are pleaded as going to involvement:

(a) the provision of cosmetic surgery services within the DCSS Sales System;

(b) participation in the DCSS Sales System by being advertised on the Lanzer Website, conducting consultations and providing cosmetic surgery services;

(c) having a commercial interest in potential patients becoming fee paying patients through the DCSS Sales System;

(d) failing to resile from (or correct) the representations;

(e) knowing that the representations were being made to the plaintiffs and group members; and

(f) knowing that the representations were false, misleading or deceptive.

1. The particulars to paragraph 102 were as follows:

The knowledge of the Other Cosmetic Doctor Defendants is to be inferred from the following:

A. That the Representations were made as part of the DCSS Sales System, being the system through which the Other Cosmetic Doctor Defendants performed cosmetic surgery services.

B. That potential patients became fee-paying patients through the DCSS Sales System.

C. That the Other Cosmetic Doctor Defendants had a commercial interest in potential patients becoming fee-paying patients.

D. That the Representations concerned the capabilities and competencies of the Other Cosmetic Doctor Defendants personally and the cosmetic surgery services that the Other Cosmetic Doctor Defendants provided.

E. That the Other Cosmetic Doctor Defendants worked alongside each other and Lanzer at the Lanzer Clinics.

1. Paragraph 109 of the amended statement of claim pleads that, '[b]y reason of the matters in paragraphs 96 and 102 above, the Other Cosmetic Doctor Defendants were "persons involved", within the meaning of section 2 of the ACL, in the contraventions of DCSS and Lanzer as pleaded in paragraphs 106 and 107 above'.
2. Paragraph 213 of the amended statement of claim pleads that, '[i]n the circumstances set out above and by reason of the matters in paragraphs 94 to 110', the four other doctors were 'involved' in each of the representations for the purposes of s 2 of the ACL.
3. The particular aspects of Forbes J's decision that are the subject of the cross-application for leave to appeal concern:

(a) paragraphs 96 and 102 of the amended statement of claim, alleging that the four other doctors aided, abetted or procured, or were directly or indirectly knowingly concerned in or party to, DCSS's and Lanzer's false, misleading or deceptive representations;[46] and

(b) paragraphs 109 and 213 of the amended statement of claim, which plead that the four other doctors were 'involved in' the contraventions of the ACL by Lanzer and DCSS.[47]

1. The judge observed that the objection to the accessorial claims was on the basis that actual knowledge, and not merely imputed or constructive knowledge must be proved. The four other doctors submitted that the four facts pleaded at paragraph 96, and the six facts pleaded in paragraph 102, if established, could not prove actual knowledge that the representations were made and were false. In particular, the four other doctors submitted that the pleading is based upon the premise that the defendants provided information to be published on the Lanzer Website; but, they submitted, provision of information is not sufficient to establish actual knowledge.[48]
2. The judge then set out, in brief summary, the plaintiffs' submissions on accessorial liability, namely that the requisite knowledge arises from the participation of the four other doctors in the DCSS Sales System, not merely from the provision of information to Lanzer and DCSS. Further, the plaintiffs said that they pleaded actual knowledge on the part of the four other doctors that the representations were being made and actual knowledge that they were false.[49]
3. The judge then said this:

The defendants' submissions do not address the context of the representations made on the Lanzer website as part of the sales system, in which the other cosmetic doctor defendants participated. It is in the context of participation in this system that actual knowledge is to be proved with respect to the representations on the Lanzer website.

I do not accept the submission that, on its face, if the plaintiffs establish that one or more of the third to sixth defendants knew they were advertised on the Lanzer website, knew that the website generated customers from which they would commercially gain, knew that the specified representations were being made and knew that they were false, misleading or deceptive, that this is incapable of establishing actual knowledge.

Actual knowledge of the essential facts constituting the contravention is necessary to establish the requisite intent for an accessorial claim.

... The pleadings identify participation in the sales system which includes the website in various specific ways including by conducting consultations, surgical procedures, attending potential patients who made an inquiry from the Lanzer website, and by permitting themselves to be advertise[d] on the Lanzer website. These factual matters are set out at Part A.4 of the September [statement of claim] and in paragraphs [86] and [87]. The case against these defendants was 'tolerably clear' to John Dixon J in September 2023, and without substantive amendment in the [proposed amended statement of claim], remains so in my view.[50]

The four other doctors' submissions on the accessorial issue

1. In relation to paragraph 96 of the amended statement of claim, the four other doctors submitted that, in order to be 'knowingly concerned' in a contravention of the ACL, 'a person must have actual (not constructive) knowledge of the essential facts constituting the contravention, although the person need not know that those facts constitute a contravention'. They also submitted that there must be an 'association with, implication in, or a practical connection with the contravening conduct'. Thus the person 'must have had more to do with the subject matter of the complaint than merely having some knowledge of the matter'. The person needed to be 'an intentional participant, in a practical way, in the contravention'. Further, to be 'party to' a contravention, the person must participate in, or assent to the contravention and have actual knowledge of the elements of the contravention.
2. The four other doctors contended that the judge erred in accepting that the facts pleaded at paragraph 96 might be sufficient to establish that they were knowingly concerned in or party to the alleged conduct of DCSS and Lanzer, for the following reasons:

(a) First, provision of information by the four other doctors to DCSS, which had engaged them, and which then applied that information 'in some manner to the Lanzer Website', was not sufficient to establish practical participation in, or assent to, the conduct so as to give rise to actual knowledge.

(b) Secondly, there are no particulars supporting the allegation of 'commercial gain'. Merely receiving remuneration from DCSS for performing work as a doctor did not mean that the four other doctors participated in or assented to the making of statements on the Lanzer Website.

(c) Thirdly, because none of the alleged representations were expressly stated on the Lanzer Website, 'it is not conceivable' that any of the four other doctors could have any actual knowledge of the facts pleaded at paragraph 96. Nor did the particulars of knowledge make good a case of actual knowledge.

(d) Fourthly, the fact that three of the four other doctors were 'personally advertised on the Lanzer Website' said nothing about whether they knew what representations were made on the website. Furthermore, one of them (Fallahi) was advertised on the Lanzer Website only by the publication of his picture and his name; there were no other statements about him. And Darbyshire, who was a trainee, was not advertised on the Lanzer Website at all (as acknowledged in the particulars to paragraph 96 of the amended statement of claim).

1. In relation to the particulars of knowledge pleaded in paragraph 96, the four other doctors said that none of those matters were sufficient to demonstrate actual knowledge that the alleged representations were made on the Lanzer Website, or that they were false, misleading or deceptive.
2. The four other doctors also alleged that the judge erred in concluding that it is in the context of the four other doctors' alleged participation in the DCSS Sales System that actual knowledge is to be proved:

(a) First, the plaintiffs do not allege that the four other doctors' knowledge, as pleaded in paragraph 96, arose from their alleged participation in the DCSS Sales System.

(b) Secondly, they reiterated that none of the alleged representations was expressly stated on the Lanzer Website, thus it is not conceivable that they could have any actual knowledge of the making of those representations.

(c) Thirdly, even if the DCSS Sales System was a method by which DCSS attracted customers, that does not mean that any of the four other doctors participated in or assented to DCSS or Lanzer posting the alleged statements on the Lanzer Website.

1. Accordingly, the four other doctors submitted, even assuming the plaintiffs prove the four facts pleaded at paragraph 96, that could not establish that the four other doctors in any practical way, assisted or assented to DCSS or Lanzer making the statements said on the Lanzer Website that are said to give rise to the representations. Nor could proof of those facts establish that the four other doctors 'intentionally participated in' or 'assented to' the making of the representations 'through the Lanzer Website', so as to be 'knowingly concerned' or 'party to' the conduct for the purposes of being a 'person involved' under s 2 of the ACL.
2. In relation to the accessorial claims in paragraph 102 of the amended statement of claim, the four other doctors submitted that 'aiding and abetting' a contravention is 'to help, assist or encourage the implementation of the contravention with the necessary actual knowledge of the essential elements of the contravention'. 'Procuring' involves the 'taking of action to bring about the contravention, in that there must be a causal connection between the action and the impugned conduct': a person procures a contravention 'if they cause the principal contravention to be committed, persuade the principal wrongdoer to commit the contravention, or by some action brings the contravention about'.
3. The four other doctors contended that the judge had dealt only with the question of actual knowledge, and had not dealt separately with the requirement that the doctors had intentionally participated in the making of the representations. That is, they contended that knowledge is insufficient to prove accessorial liability - it is also necessary to demonstrate involvement in, or an association with, the making of the representations, by a positive act. They referred, in particular, to the following statement by Gordon J in Productivity Partners:

To be knowingly concerned in a contravention of the statutory prohibition against unconscionable conduct, an accessory must: (1) 'intentionally participate' in conduct that 'implicate[s] or involve[s]' them in the primary contravention - that is, they must have 'assented to' or 'become associated with' the conduct that amounts to the primary contravention; and (2) have 'knowledge of the essential facts constituting the contravention', meaning 'all the essential facts or circumstances which must be established ... in order to show' that the primary contravention was committed.[51]

1. They also relied upon the following statement by Edelman J in the same case:

[T]he basis for attribution to the accessory of liability for an offence or contravention is that the accessory must have intended to be involved with the essence of the primary offence or contravention. There are three steps: (i) identification of the essence of the primary offence or contravention; (ii) identification of the acts of the accessory that amount to involvement in the essence of the primary offence or contravention; and (iii) identification of the intention of the accessory to be involved in the essence of the primary offence or contravention. The third matter is often the central issue, as it is in this case. Intent is important because, as Learned Hand J put it, accessory or derivative liability requires that the accessory: show a 'purposive attitude' towards the venture; 'associate [themself] with the venture'; 'participate in it as in something that [they wish] to bring about'; and 'seek by [their] action to make it succeed'.[52]

1. The four other doctors further contended that the six pleaded facts in paragraph 102 of the amended statement of claim are insufficient to establish that they had aided, abetted or procured, or were knowingly concerned in or party to, the alleged conduct of DCSS and Lanzer, for the following reasons.

(a) First, these six facts have no real prospect of establishing that the four other doctors participated in, assented to, helped, assisted or encouraged DCSS and Lanzer to make the alleged representations with the required actual knowledge.

(b) Secondly, the plaintiffs allege that the four other doctors were 'involved in' DCSS and Lanzer making the representations because they did not resile from the representations. However, because none of the alleged representations is express, but rather each is implied from other statements, 'it is not conceivable' that they could resile from any of the representations.

(c) Thirdly, in circumstances where it is not alleged that any of the four other doctors were involved in the production or publication of the statements made, it is not conceivable that they could 'know' of the representations that are alleged to emanate from the statements.

(d) Fourthly, the particulars of the alleged knowledge do not support the allegations that the four other doctors knew that the representations were being made and that they were false.

1. The four other doctors contended that there is 'no reasonable chance' that the material allegations of fact pleaded in paragraph 102(a) to (f) could establish that any of them:

(a) helped, assisted or encouraged DCSS and Lanzer to make the representations - thus they cannot have aided and abetted a contravention;

(b) persuaded DCSS and Lanzer to make the representations;

(c) committed any act to bring about DCSS and Lanzer making the representations;

(d) participated in or assented to the making of the representations, such that they were a party to them;

(e) was an intentional participant, in a practical way, in the making of the representations and thereby knowingly concerned in them; and

(f) thereby was a person 'involved' in any contravention of the ACL by DCSS or Lanzer.

Consideration of the cross-application for leave to appeal

1. In dealing with the pleading concerning the four other doctors' alleged accessorial liability, the judge dealt principally with the question of whether, if proved, the pleaded facts could demonstrate actual knowledge that the representations were made and were false.[53] In our view her Honour was correct to conclude that the facts pleaded in the relevant paragraphs of the statement of claim, if proved, are capable of proving knowledge. In that regard, as the judge observed, the statement of claim pleads actual knowledge that the representations were made (at paragraphs 96(c) and 102(e)) and that they were false (at paragraphs 96(d) and 102(f)). The plaintiffs are not required to plead the evidence on which they seek to rely to prove those allegations. Furthermore, we consider that the particulars of knowledge, which set out a series of facts from which knowledge is said to be inferred, are sufficient.
2. We do not accept the submission that, because the representations arising from the Lanzer Website are said to be implied, rather than express, it is 'not conceivable' that the four other doctors could have actual knowledge of the matters pleaded at paragraph 96. It is entirely possible that, if the representations are reasonably to be understood as arising from the statements on the website, the four other doctors would have known that they were conveyed. And the fact that three of the four other doctors were advertised on the Lanzer Website, while insufficient alone to demonstrate knowledge, is one of a series of facts upon which the plaintiffs rely in order to infer knowledge. Nor do we consider that the judge erred in finding that actual knowledge fell to be proved in the context of participation in the DCSS Sales System.[54] That context was plainly relevant and was one of the particulars of knowledge to paragraph 96 and was expressly pleaded in paragraph 102.
3. Ultimately, the four other doctors' submissions concerning knowledge overlooked the fact that actual knowledge is expressly pleaded, that the particulars of knowledge are cumulative (that is, none is said to be sufficient alone) and the particulars of knowledge are said to permit an inference of knowledge.
4. Actual knowledge was not the only basis for the four other doctors' contention that the accessorial claims ought to be struck out. They also contended that 'mere knowledge' is not sufficient and that there must also be some act or conduct on the part of the alleged accessory. They contended that the judge had failed to deal with this aspect of their argument. We do not accept that submission. The judge dealt with that aspect of the argument as follows:

As a pleading matter, the third to sixth defendants also submit that both paragraphs [96] and [102] of the [proposed amended statement of claim] plead a conclusion from unstated material facts as to the acts, matters or things done by them upon which the accessorial claims rest. They set out that the conclusion in paragraph [96] of the [proposed amended statement of claim] is that they helped, assisted or encouraged, or they persuaded, or they committed an act to bring about, or participated with DCSS and Lanzer to make the representations. The pleadings identify participation in the sales system which includes the website in various specific ways including by conducting consultations, surgical procedures, attending potential patients who made an inquiry from the Lanzer website, and by permitting themselves to be advertise[d] on the Lanzer website. These factual matters are set out at Part A.4 of the September [statement of claim] and in paragraphs [86] and [87]. The case against these defendants was 'tolerably clear' to John Dixon J in September 2023, and without substantive amendment in the [proposed amended statement of claim], remains so in my view.[55]

1. While the judge did not deal in detail with the question of participation, nor did she overlook it.
2. Furthermore, in our view her Honour was correct to conclude that the pleading in this regard is sufficient. In particular, we note that what will constitute being 'involved in' a contravention of the ACL is ultimately a question of fact, and that it may be sufficient for the person to have '"become associated with" the conduct that amounts to the primary contravention'.[56] We consider that the matters pleaded in paragraphs 96 and 102 are capable of demonstrating 'involvement' in the primary contraventions. In particular, that is so in relation to Aronov and Wells, who are alleged to have provided information to DCSS that was then the basis for material published on the Lanzer Website. But even putting that fact to one side, the participation of the four other doctors in the DCSS Sales System (depending on what form of participation is ultimately proved), their knowledge that the representations were made, their knowledge that the representations were false, and their failure to resile from the representations (if proved), may be capable of making good their 'becoming associated with', and hence their involvement in, the conduct constituting the primary contraventions.
3. Ultimately, the issues raised by the cross-application can be ventilated fully at trial. The question whether one or more of the four other doctors had the requisite knowledge, and the question whether they had 'participated in' or had 'become associated with' a contravention of the ACL, are fundamentally questions of fact that will turn on the evidence adduced at trial. We do not consider that the pleaded allegations in relation to accessorial liability are such that the claim is doomed to fail and should be summarily dismissed or struck out.
4. We would thus refuse leave to cross-appeal.

1. For the foregoing reasons, we would refuse Lanzer's application for leave to appeal on ground 1 and refuse the four other doctors' cross-application for leave to appeal. However, we would grant Lanzer leave to appeal on ground 2 and allow the appeal on that ground.
2. At the hearing of the application for leave to appeal, the Court requested that the parties provide a marked up version of the amended statement of claim that showed the consequences for the pleading if Lanzer was successful on either ground.
3. At that time, the parties did not agree about the consequences of Lanzer's success on ground 2 for the following aspects of the pleading:

(a) some of the particulars to paragraph 100 (namely paragraph (1)(iv)); and

(b) paragraphs 103(e) and 103(f) and the particulars to paragraph 103.

1. In addition, the parties did not agree as to whether the following paragraphs of the Further and Better Particulars, contained in a separate document, ought to be struck out:

(a) the second paragraph in relation to [94];

(b) the third paragraph in relation to [97];

(c) the second paragraph in relation to [98]; and

(d) the third paragraph in relation to [100].

1. The resolution of these or any other disagreements about the proper form of pleadings as a consequence of Lanzer's success on ground 2 will be a matter for the trial judge to determine in light of this judgment and reasons.
2. We will therefore order that:

(a) leave to appeal be granted on ground 2 but otherwise be refused;

(b) the appeal be allowed; and

(c) the order made by the judge on 14 November 2024 be set aside to the extent that it permitted the plaintiffs to plead allegations that unidentified material published on social media accounts conveyed the 'Pre-Eminence Representation' and the 'Excellent Service Representation'.

1. If there is any dispute about the effect of the third order above, or the identification of the amendments that need to be made to the amended statement of claim in order to comply with this order, that dispute can be resolved by the trial judge.
2. We will hear from the parties in relation to costs (including the costs of the relevant summonses in the court below).

DERMATOLOGY AND COSMETIC SURGERY SERVICES PTY LTD (ACN 055 927 618)

JACQUELINE DARBYSHIRE and TONY DARBYSHIRE (in their capacity as the legal personal representatives of the estate of Daniel Darbyshire)

[1] Darbyshire died in 2023. His estate has been substituted as the fourth defendant (estate of Darbyshire).

[2] Candice Wainstein, who provided psychological services following referral by Lanzer or another doctor.

[3] Tina Lombardo, Tina Bonnici, Simone Russell and Julie Rose Morrison (the first to fourth respondents to this application).

[4] The ACL is Schedule 2 to the Competition and Consumer Act 2010 (Cth).

[5] Plaintiffs' written submissions, quoted in Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2024] VSC 608, [28] (Forbes J) ('Reasons').

[7] We will refer to the proposed grounds of appeal simply as grounds of appeal, for convenience.

[8] These are defined terms used in the amended statement of claim.

[9] Citing Civil Procedure Act 2010 s 63; Supreme Court (General Civil Procedure) Rules 2015, r 23.01.

[10] Citing Supreme Court (General Civil Procedure) Rules 2015, r 23.02.

[11] The details of the steps in the proceeding are largely taken from the parties' agreed summary.

[12] Lanzer is the second defendant in the trial; the applicant in the application for leave to appeal; and the sixth cross-respondent in the cross-application for leave to appeal.

[13] Aronov is the third defendant in the trial; the sixth respondent in the application for leave to appeal; and the first cross-applicant in the cross-application for leave to appeal.

[14] Darbyshire is deceased. The estate of Darbyshire is the fourth defendant in the trial; the seventh respondent in the application for leave to appeal; and the second cross-applicant in the cross-application for leave to appeal.

[15] Wells is the fifth defendant in the trial; the eighth respondent in the application for leave to appeal; and the third cross-applicant in the cross-application for leave to appeal.

[16] Fallahi is the sixth defendant in the trial; the ninth respondent in the application for leave to appeal; and the fourth cross-applicant in the cross-application for leave to appeal.

[17] Wong is the seventh defendant in the trial; the tenth respondent in the application for leave to appeal; and the seventh cross-respondent in the cross-application for leave to appeal. A discontinuance application in respect of all claims against Wong was heard by Forbes J on 21 February 2025. Wong has filed a notice of intention not to respond or contest in relation to the application for leave to appeal and the cross-application for leave to appeal.

[18] DCSS is the first defendant in the trial; the fifth respondent in the application for leave to appeal; and the fifth cross-respondent in the cross-application for leave to appeal.

[21] Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2023] VSC 463 (John Dixon J).

[22] Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2023] VSC 463, [70] (John Dixon J).

[24] Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2024] VSC 711, [10], [14] (Forbes J).

[25] Contained in paragraphs [88], [94]-[96], [96A(b)], [100(h)], [103(e)-(g)] and [106]-[108] and the particulars to [97(h)], [98(h)], [99(f)] and [100(i)] of the amended statement of claim. In the course of oral argument, Lanzer accepted that, even if he were to be successful on ground 1, paragraph [88] would not be entirely struck out - only the words 'potential patients' would be removed.

[26] Contained in paragraphs [96A(b)], [96A(d)], [97(a)], [97(g)], [98(a)], [98(h)], [100(a)(ii)-(iii)], [100(h)] and [103(e)--(g)] of the amended statement of claim.

[27] See, eg, Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110] (Kyrou and McLeish JJA) ('Cargill'); Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236; (2024) 76 VR 75, 99 [83] (Macaulay, Lyons and Orr JJA); [2024] VSCA 236 ('Kajula'); Fei v Hexin Pty Ltd (2024) 75 VR 581, 588 [71] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158 ('Fei').

[28] (1936) 55 CLR 499; [1936] HCA 40.

[29] Cargill [2018] VSCA 260, [110], [113] (Kyrou and McLeish JJA); Fei (2024) 75 VR 588 [71] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158.

[30] Kennedy v Shire of Campaspe [2015] VSCA 47, [14] (Whelan and Ferguson JJA); Kajula [2024] VSCA 236; (2024) 76 VR 75, 99 [83]-[84] (Macaulay, Lyons and Orr JJA); [2024] VSCA 236.

[31] [2022] VSCA 250, [35] (Macaulay JA and J Forrest AJA) (citations omitted) ('Baptcare').

[32] In that regard, we note that the Court in Baptcare referred, in support of its second proposition, to Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [24] (Beach and Kaye JJA and Croucher AJA). In that case, this Court said that 'Ordinarily, in order to set aside a decision on a matter of practice and procedure, the appellate court must be satisfied, not only that there was material error by the judge in the exercise of the discretion, but, additionally, that the applicant will suffer substantial injustice if the decision is permitted to stand' (emphasis added).

[33] See, eg, Coles Myer Ltd v Victorian WorkCover Authority [2002] VSCA 144, [15] (Winneke P, Charles JA agreeing at [17], Eames JA agreeing at [18]); Cargill [2018] VSCA 260, [113] (Kyrou and McLeish JJA); Fei (2024) 75 VR 581, 588 [71] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158; Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, 323 (Jordan CJ) (Supreme Court of New South Wales, Full Court). Another way of expressing this concern has been to affirm that appeals from interlocutory orders should not be permitted except in special circumstances: see Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377, 379 [6] (Maxwell P and Buchanan JA); [2008] VSCA 93, citing Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 438 (Murphy J) (McInerney J agreeing at 433, Gillard J agreeing at 444 although dissenting in the result); Swan Hill Chemicals Pty Ltd v MA & J Tripodi Pty Ltd [2016] VSCA 264, [21]-[22] (Santamaria JA and Riordan AJA).

[34] Lanzer had previously objected to the pleading in so far as it alleged publication to 'the public'. We note that, in a marked up version of the amended statement of claim provided to the Court after the hearing, Lanzer sought to strike through the words 'potential patients' and strike out certain sub-paragraphs entirely, but did not seek to strike out whole paragraphs except for paragraphs 94 and 96.

[35] [2004] HCA 60; (2004) 218 CLR 592, 604 [36]-[37] (Gleeson CJ, Hayne and Heydon JJ); [2004] HCA 60 ('Butcher'). Their Honours said that in cases 'where monetary relief is sought by a plaintiff who alleges that a particular misrepresentation was made to identified persons' including the plaintiff, then the plaintiff must 'establish a causal link between the impugned conduct and the loss that is claimed'. That analysis depends on 'the conduct of the defendant in relation to that plaintiff alone': at 604 [37].

[36] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; (2023) 277 CLR 186, 226 [83] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ); [2023] HCA 8 ('Self Care'), where the Court said that where 'the conduct was directed to the public or part of the public, the third and fourth steps must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons.'

[37] [2023] FCA 1280 ('Karpik'). This was a class action in relation to passengers on the Ruby Princess, a cruise ship, who were infected with Covid-19. Stewart J assessed whether the representations alleged to have been made by the respondent in that case were misleading or deceptive by reference to a hypothetical or ordinary member of the class: see at [706], [716], [746].

[39] [2023] HCA 8; (2023) 277 CLR 186, 225-6 [80]-[81] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ); [2023] HCA 8 (citations omitted).

[40] Reasons, [106] (emphasis added).

[41] [2013] HCA 1; (2013) 249 CLR 435, 465 [93] (Hayne J); [2013] HCA 1 ('Google').

[42] [2013] HCA 1; (2013) 249 CLR 435, 465 [92] (Hayne J); [2013] HCA 1.

[44] Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd [2023] VSC 463, [53] (John Dixon J) (emphasis added).

[45] We note that counsel for the four other doctors submitted that there is, in this proceeding, a 'real problem with class classification'. That may be so, but as he accepted in oral argument, the question whether there is a class classification problem was not a question before this Court on the application for leave to appeal or the cross-application, which concerned only certain paragraphs of the amended statement of claim.

[51] Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27; (2024) 98 ALJR 1021, 1053 [146] (Gordon J, Steward J agreeing at 1082 [308]) (citations omitted); [2024] HCA 27 ('Productivity Partners').

[52] Productivity Partners [2024] HCA 27; (2024) 98 ALJR 1021, 1071 [258] (Edelman J) (citations omitted); [2024] HCA 27.

[55] Reasons, [138]. We note that the judge's statement that it is pleaded that the four other doctors had permitted themselves to be advertised on the Lanzer Website is not entirely accurate, because the pleading acknowledges that Darbyshire was not advertised or referred to on the website. But that error is not material for present purposes.

[56] Productivity Partners [2024] HCA 27; (2024) 98 ALJR 1021, 1053 [146] (Gordon J, Steward J agreeing at 1082 [308]) (citations omitted); [2024] HCA 27.