Noone, Director of Consumer Affairs Victoria v Operation Smile

Noone, Director of Consumer Affairs Victoria v Operation Smile - [2011] VSC 153 - VSC 2011 case summary — Zoe

[12]

5 Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) requires a construction of s 9(1) that would promote the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object. The dividing line between what is "in" trade and commerce and what is not may not always be easy to determine. The expression of opinions and beliefs will frequently occur through, or incidental to, trade and commerce: lectures may be given in occasions of commerce to the organisers and opinions expressed in books or other publications may be an occasion of trade and commerce. Tests to determine whether speech is commercial[8] are apt to depend upon judgments upon which reasonable people may differ as is a test of whether "expression related solely to the economic interests of the speaker and its audience".[9] Opinions and beliefs about working conditions might be seen by some as related solely to economic interests but by others as a wider political debate. An opinion about treatments and procedures may be nothing more than an opinion but found expressed as an incident of where or how to obtain the treatment or procedure. At times, indeed frequently, one may find these opinions, and their commercial availability, at the heart of deeply held social debates concerning such matters as the termination of pregnancies, voluntary euthanasia, religious practices and alternative therapies. In considering the proper construction of s 9 of the Fair Trading Act it may be assumed that it was not part of the purpose of the legislature to stifle unduly public discussion or the free expression of opinions however erroneous the opinions might be. Section 15 of the Charter gives recent expression to the right to hold an opinion without interference and to express that opinion orally, in writing, in print, by way of art or in any other medium chosen by him or her.[10] The right in s 15 may be subject to lawful restrictions to respect the rights and reputations of other persons or for the protection of national security, public order, public health or public morality.[11]

[47]

23 Associate Professor Snyder prepared a third affidavit for this proceeding. That was dated 20 September 2010 by which time the trial had commenced before me. The June fixture had not been reached and the trial had been set down for hearing before me on 13 September 2010. The third affidavit of Associate Professor Snyder was produced in circumstances similar to those in which his second affidavit had been produced. The third affidavit recorded that on 14 September 2010 he received a request on behalf of Consumer Affairs Victoria asking him to examine a table containing "the alleged false, misleading or deceptive representations made by the Defendants in this proceeding" and that he was asked "by the Plaintiff's legal advisers to consider the representations, in their full context, and to prepare an advice as to whether the representations were false, misleading or deceptive". Associate Professor Snyder appears again to have been asked to provide an opinion on the issues which the Director was seeking the Court to determine, and about which I had expressed concerns in relation to the earlier affidavits. It is not helpful for an expert to be asked to express an opinion about whether something is false and misleading if that is the very question which the person asking the expert for an opinion is seeking the Court to determine. It does not relieve the Court of its responsibility of forming its own opinion on the issue.[32] A question for an expert in such terms, and a response by an expert to those terms, gives insufficient, if any, basis upon which the Court can reach a conclusion for itself beyond the fact that an expert had that view. The Court's task cannot be divested or "delegated" in that way. Nor can the Director discharge the burden of satisfying the Court by tendering evidence that shows only that an expert is satisfied of the matter which the law requires that the Court be satisfied about. In any event, what was produced and exhibited to the third affidavit as Associate Professor Snyder's report and opinion, was a version of the table substantially matching Table 1 attached to the plaintiff's final submissions with a column headed "Dr Snyder's opinion" in respect of each of the 37 matters that had been put as constituting the false and misleading statements. The table tendered "as evidence" of Associate Professor Snyder differed from Table 1 attached to the submissions in that the latter added to the former by including additional references relied upon by the Director for the submission that the relevant statement was false and misleading. Nonetheless, and taking as much care as I may about the way in which the expert opinion was produced and the expert evidence was given, it purports to contain the evidentiary basis relied upon by the Director in respect of each of the claims. There was also tendered, of course, the statements in the website impugned by the Director. These were tendered in electronic form by copies of DVDs capturing the various pages of the website at particular dates. There was also printed pages of some of the material on the website.

[123]

64 The evidence before me was that Professor Campbell changed the website to ensure conformity with the orders made by Hargrave J when the matter came before him for interlocutory relief. Professor Campbell's evidence was also that he has acted upon legal advice in adopting the language subsequently used in the website. His appearance and attendance at the several days of hearings before me over many months have been of someone seeking to comply with the law albeit that he may have a firm belief in a form of treatment that is not embraced by the rest of the community as it is by him. My observations of Professor Campbell in Court, and in the conduct of the proceedings, were of a respectful and responsive person who made no attempt to misuse the proceedings or to secure collateral advantage through them. He did not appear to be a "zealot"[71] but a man with some scientific background promoting a form of treatment he, with others, sought to provide and from which he believed others might benefit. I say nothing about whether that belief is well founded for the purpose of this issue although the evidence before me is that the belief is not well founded by reference to conventional medicine and prevailing scientific knowledge. He was polite in Court, dutiful in his presentations, accepted my adverse rulings and made every attempt to further the defendants' case responsibly and responsively. He cross examined Associate Professor Snyder and he did so politely and reasonably notwithstanding his obvious unfamiliarity of the forensic process and procedures and the obvious differences in their views. His questions were to the point. His evidence was also that he had sought legal advice about the changes to the content of the website and that he acted upon that advice. At one stage it was suggested that the changes to the website might in some way have been to defeat the operation of the Court's orders, but the evidence established the contrary. In those circumstances no public interest would be served by making declaratory orders.

[154]

The disclaimer made clear that what appeared on the website did not have the recognition of the Therapeutic Goods Authority. It also made clear that the entire contents of the website was based upon the opinions, however erroneous they may be, of Professor Campbell. Such a disclaimer might not be a sufficient answer in an action under s 9 of the Fair Trading Act where, notwithstanding the disclaimer, what was stated cannot stand as an opinion but can only be understood as an assertion of fact provable, verifiable, disprovable or falsifiable by reference to acceptable standards of truth and verifiability. In saying that, however, care must be taken when considering the difference between fact and opinion because opinion is often expressed as an assertion of fact. A person whose opinion may be that the world is flat will hold, and usually express, that opinion as a fact and not as a preference from a range of equally valid points of view. The converse, of course, is true of other assertions as fact where those who do not share the view asserted understand them as another person's opinion. Beliefs in the existence or non existence of God are at one level of a continuum of what people assert as fact or opinion, but less celestial or theological examples can readily be supplied at many other points along the continuum. For the purposes of s 9 of the Fair Trading Act, the test is whether the statements found in this tranche are such that they are not the expression of an opinion, however wrongly held, by the defendants and must necessarily be seen objectively to be statements which are false and misleading, or are likely to be false and misleading. The text and context of this tranche does not warrant that conclusion. Accepting all of the statements as containing, or based in part upon, fundamental error by reference to conventional medicine and modern science, a reader of them would understand them to be the opinion of some who take a different view from a different way of seeing things.

[173]

Stage III breast cancer. Primary breast tumour plus metastases in the axillary lymph node, the other breast and the liver. After PDT and lumpectomy: no evidence of cancer in all four sites.
Stage IV breast cancer with rampant body metastases. Very low energy, not enough to work in the garden. In bed by 7:30pm. After PDT (ongoing) weight increased 3kg and now normal. Normal sleeping time and energy levels. Resumed gardening. Scan shows that the tumours have stopped spreading.
Metastatic melanoma grade IV. About 80 metastases visible. Oncologist predicted 2 more months of life. After PDT (ongoing), Alive and well 4 months after prediction. Metastases down to about 20. Energy, appetite and weight improved. Physician estimates that about 80% of the cancer is gone. Further treatment needed.
Prostate cancer (large tumour mass), grade IV, urinary infections, bowel infections, Inability to urinate without catheter, impotent. After SDT/PDT (ongoing) Prostate shrinking and softening, urination better, impotence easing. Needs further treatment but improving.
Ovarian cancer Grade IV. Had hysterectomy and other surgery. No symptoms other than elevated cancer marker. After PDT cancer marker now normal. No evidence of cancer.
Squamous cell carcinoma grade 1. Lump on upper lip removed surgically. PDD showed 6 metastases on upper lip. After SDT all metastases have disappeared.
Prostate grade IV. Hard prostate with 2 nodules, metastasized outside the gland. After SDT (ongoing) Prostate shrunk, softened, one nodule disappeared. Better urination. Clear or almost clear of cancer.
Mesothelioma lung cancer. Symptoms include coughing at night, disturbed sleep. Painful breathing, not allowing deep inhalations. Photodynamic diagnosis showed over 12 metastases in the thorax. No noticeable benefits from chemotherapy. After SDT (ongoing): Coughing at night has stopped, giving much better sleep. Breathing not as painful, allowing deeper inhalation. "I have an amazing increase in energy". Visible metastases have dropped from 12 or more to one.
Breast cancer grade IV. Lumpectomy. PDD showed metastases in the breast and the axillary lymph nodes. After SDT (ongoing) Cleared metastases from the breast. Those in the lymph glands remain. Next treatment will be PDT/SDT.
Breast cancer grade IV with extensive liver metastases. PDT failed to halt the progress of the illness. SDT was not available at the time and she has chosen other treatment".

[182]

84 The Director's broader complaint was, however that the statements might be construed as an acceptance or endorsement by the Anti Cancer Council of the treatment promoted on the website. The evidence of Associate Professor Snyder was that "the absence of an official position on many of these techniques should not be interpreted as acceptance or endorsement". He added to that observation that he was able to say from his position that the potential for psychological and physical harm to patients as a result of the promotion of what he described as "these non-scientific therapies" has been a source of concern over a long period of time to cancer clinicians in Victoria. The Director also relied upon the findings in the Campbell Report tendered through Commissioner Wilson to the effect that the treatments at the Hope Clinic were either of no benefit or were unproven in terms of their efficiency, and that the Commissioner had concern about the costs incurred by vulnerable cancer patients. The Commissioner also noted that treatments involving "bowel and vaginal insufflation" and the use of enemas were "seemingly ridiculous and particularly undignified for patients in a seriously ill condition". All this may be accepted but it does not render the statement false and misleading. The statements appeared in documents described as "Information for Patients" about each of the treatments in which the statement was contained. Each statement was also headed "Patient Disclosure Sheet" and it is relevant and important that a patient reading the information sheet should be given clear and reliable information. On one view, an absence of a statement that the relevant institutions had no official position concerning each of the four treatments could, perhaps, be of greater concern than a positive statement saying that there is no official position on the treatment one way or another. A reader where there was nothing said about the position of the Anti Cancer Council might have been left in some doubt about whether the matter had been considered and either approved or formally disapproved the treatments and, perhaps, have assumed approval. Indeed, consideration of this kind shows something of the need for caution when considering the application of provisions such as s 9.

[231]

[20] Commonwealth Attorney-General, "Appendix B: The Commonwealth's obligation to act as a model litigant", Legal Services Direction 2005; Australian Tax Office, "Conduct of Tax Office Litigation" Practice Statement Law Administration 2009/9; Bruce Quigley, "The Role and Implications of Litigation in Tax Administration" (Speech delivered at the Australian Petroleum Production & Exploration Association Annual Conference, Hobart, 22 November 2007); Dale Boucher, "An Ethical Code ... Not a Code of Conduct" (1996) 79 Canberra Bulletin of Public Administration 3, 4; GE Dal Pont_, Lawyers' Professional Responsibility in Australia_ (2006) 296-7; see also Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333, 342 (Griffith CJ); SCI Operations Pty Ltd v Commonwealth (1996) 139 ALR 595, 613-4, 621 (Beaumont and Einfeld JJ); Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, 704 (Beaumont, Burchett and Goldberg JJ); Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 146 ALR 1, 40-1 (Finn J); Scott v Handley [1999] FCA 404; (1999) 58 ALD 373, 383-4 (Spender, Finn and Weinberg JJ); White v Minister for Immigration Multicultural Affairs [1999] FCA 1433, [81] (Ryan, North and Weinberg JJ); One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 171 ALR 227, 233 (Burchett J); ACCC v Warner Music Australia Pty Ltd [2000] FCA 647; Challoner v Minister for Immigration Multicultural Affairs (No 2) [2000] FCA 1601; NAFK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1374, [9] (Lindgren J); NAOY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 275, [8] (Driver FM); Wodrow v Commonwealth of Australia [2003] FCA 403; (2003) 129 FCR 182, [38]-[43] (Stone J); ABB Power Transmission Pty Ltd v ACCC [2003] FCAFC 261, [35] (Heerey, Stone and Bennett JJ): see on the prosecutorial duty Morley v Australian Securities and Investment Commission [2010] NSWCR 331, [678] ff.

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