Noone, Director of Consumer Affairs Victoria v Operation Smile

TRADE AND COMMERCE - Trade practices - Misleading or deceptive conduct - Fair Trading Act 1999 (Vic) s 9(1) - Consumer protection - Respondents advertised alternative, complementary cancer treatments on website - Whether misleading and deceptive - Whether merely permissible expression of opinion - Whether diagnostic methods and treatments described on website had conventional scientific support - Whether website represented diagnostic methods and treatments had conventional scientific support - Appeal allowed - Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; (1984) 2 FCR 82 applied.

HUMAN RIGHTS -Charter of Human Rights and Responsibilities (Vic) s 15, s 32(1), s 7(2) - Freedom of expression - Freedom of speech - Interpretation of Fair Trading Act 1999 (Vic) s 9(1) - Relationship between Charter and Fair Trading Act 1999 (Vic) s 9(1) - Whether the provision needed to be read to include mens rea requirement - Purpose of the provision - Consumer protection - Charter did not import mens rea requirement - Momcilovic v The Queen [2011] HCA 34; (2011) 280 ALR 221; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; (1984) 2 FCR 82; R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23; [2004] 1 AC 185; Connolly v Director of Public Prosecutions [2007] EWHC 237; [2008] 1 WLR 276; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506; Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534; R v Wholesale Travel Group Inc (1992) 84 DLR (4th) 161; Her Majesty the Queen v 671135 Ontario Ltd (Unreported, 29 March 1994) considered.

Solicitor to the Director of Consumer Affairs Victoria

1 This is an appeal from a decision of a judge of the Trial Division dismissing the appellant's claim against the respondents.

2 The four respondents (collectively, 'Operation Smile') operate the 'Hope Clinic', which they describe as a complementary medicine centre specialising in the treatment of cancer. At the relevant time Operation Smile's website, www.smile.org.au, listed and described the treatments offered at the Hope Clinic and contained statements relating, inter alia, to the efficacy of these treatments.

3 The appellant, the Director of Consumer Affairs Victoria (the 'Director'), alleged that by making these statements Operation Smile engaged in misleading or deceptive conduct in trade or commerce contrary to s 9(1) of the Fair Trading Act 1999 (the 'Act'). In summary, the Director's claim was that the statements falsely represented that the treatments offered by Operation Smile (1) were effective in treating cancer and (2) had scientific support. Operation Smile admitted making the statements but denied that they were misleading or deceptive.

4 A question also arose about the effect of the Charter of Human Rights and Responsibilities (the 'Charter') on s 9(1) of the Act.

5 The learned trial judge held that the Operation Smile treatments did not have the support of conventional science and, according to conventional science, were of no benefit to cancer sufferers. However, his Honour held that, with one exception, the impugned statements were not misleading or deceptive. Essentially, his Honour determined that readers of the statements would understand them, in their context, as mere expressions of opinion and as claiming no support from conventional medicine or science. His Honour considered that, because of supervening events, the one exception did not require any judicial intervention. His Honour did not find it necessary to deal with the Charter issue. The facts are described in more detail in the judgment of Nettle JA, which we have had the considerable benefit of reading in draft form.

6 By this appeal, the Director challenges the learned trial judge's finding that the impugned statements were not misleading or deceptive. Operation Smile did not file a cross-appeal, nor did they challenge any findings of the trial judge through a notice of contention.

7 For the reasons that follow, we would allow the appeal.

The interpretation and application of the Charter

8 The question of whether the Charter has a bearing on the case initially was raised by the learned trial judge.[1] Subsequently, notices under ss 35 and 36 of the Charter were served on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (the 'Commission'). The Attorney-General chose to intervene in the proceedings; the Commission declined to do so.[2] The Public Interest Law Clearing House ('PILCH') appeared amicus curiae.

9 PILCH submitted that, interpreted in light of the Charter, s 9(1) of the Act should be construed as including a mens rea element rather than being, as it has previously been considered, a strict liability provision. The Director and the Attorney-General opposed the submission. The learned trial judge ultimately did not find it necessary to consider the question for the disposition of the matter, because he found that, generally speaking, readers would not be misled or deceived or be likely to be misled or deceived.

10 In this Court, the Director submits that his Honour erred in declining to decide the question and gave a further notice under s 35 of the Charter stating two questions of law:

1. Whether section 9 of the Fair Trading Act 1999 (Vic) ("the Act") is incompatible with the right to freedom of expression contained in section 15 of the Charter?
2. How, if at all, the proper interpretation of section 9 of the Act is affected by the right to freedom of expression, as set out in section 15 of the Charter and as promoted and protected by the Charter (sections 2(a) and (b) and section 6(2)(b))?[3]

11 PILCH did not participate in the appeal. The Director and the Attorney-General retained the same position on the Charter issues raised as they had in the Court below.

12 For the reasons that will follow we reject the construction of s 9(1) proposed by PILCH. That is, we consider that s 32 of the Charter does not require s 9(1) of the Act to be interpreted as incorporating an element of mens rea.

13 Beyond rejecting the specific construction proposed by PILCH, it would, in our view, be inappropriate to answer the two questions contained in the notice. That is, it would be inappropriate to determine whether s 15 of the Charter requires some other departure from the established meaning of s 9(1). Nor would it be appropriate to determine whether the rejection of the mens rea element means that s 9(1) is 'inconsistent' with human rights, so as to enliven the power of the Court to make a declaration of inconsistent interpretation under s 36 of the Charter. We will explain our reasons for declining to determine these matters shortly.

The Charter does not require s 9(1) of the Act to be construed as incorporating a mens rea element

32. Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of -

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

15 At the trial, PILCH submitted that a strict liability construction of s 9(1) is incompatible with human rights. It then submitted that s 9(1) would be compatible human rights if it was construed as including a mens rea element. It is unnecessary to determine whether these submissions are correct .

16 It is clear that s 32 requires the Court to select a human rights compatible interpretation of a provision only if that interpretation is consistent with the purpose of that provision. To incorporate a mens rea requirement into s 9(1) of the Act would defeat the purpose of that sub-section.

9. Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

18 The Fair Trading Act 1999 replaced, among other things, the Fair Trading Act 1985. Section 9(1) of the 1999 Act re-enacts s 11 of the 1985 Act, which was in turn identical to what was then s 52 of the Trade Practices Act 1974 (Cth). The second reading speech for the Act in its current form confirms what was in any event clear from a reading of the respective Acts, namely that the provisions of the Victorian Acts were modelled where possible on the Commonwealth Act and were introduced 'to extend the coverage of laws prohibiting a wide range of deceptive or misleading practices based on relevant provisions of the [C]ommonwealth's Trade Practices Act 1974 to non-corporate traders ... trading within Victoria over which the Trade Practices Act has no jurisdiction.'[4]

19 In 1985 s 52 of the Trade Practices Act already possessed a well-understood and settled meaning. It was clear that neither intent nor any other mens rea element was relevant under the section. All that was relevant was whether, tested objectively, the conduct was misleading or deceptive or likely to mislead or deceive.[5] A person's state of mind was immaterial unless the statement was explicitly about that state of mind.[6]

20 It would therefore be inconsistent with the clear purpose of s 9(1) - to substantially reproduce the consumer protection regime existing under federal law and extend its application to non-corporate traders - to incorporate a mens rea requirement that would make the state provision radically different from its federal counterpart. It follows that the construction proposed by PILCH should be rejected.

21 The rejection of the mens rea element is not conclusive of either question contained in the notice. However, this Court was only presented with one proposed way of construing s 9 so as to take into account the right to freedom of expression. This does not mean other interpretations cannot be conceived. The number of other hypothetical constructions is perhaps only limited by the creativity of counsel. Unfortunately, we did not have the benefit of a legally represented contradictor. It would be difficult for this Court to embark on an exercise of conceiving and considering every imaginable way in which s 9 could be re-interpreted in light of the Charter, many of which may have no relevance to the facts of this case. Accordingly, we would decline to answer the stated questions beyond rejecting the mens rea element proposed below by PILCH.

22 The Attorney-General submits that the settled meaning of s 9(1) is 'compatible' with the right to freedom of expression because it represents a measure necessary to protect the rights of others under s 15(3) of the Charter. Justice Nettle accepts this submission, for the reasons his Honour explains.[7] We see great force in his Honour's reasoning. However, for the reasons we have given, the question whether the settled interpretation of s 9(1) is incompatible with human rights need not be determined for the disposition of the liability issues arising in the appeal. The only potential remaining relevance of that question would be for the purposes of s 36 of the Charter which provides:

36. Declaration of inconsistent interpretation

(1) This section applies if-

(a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or

(b) the Supreme Court has had a question referred to it under section 33; or

(c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).

(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

(3) If the Supreme Court is considering making a declaration of inconsistent interpretation, it must ensure that notice in the prescribed form of that fact is given to the Attorney-General and the Commission.

...

23 No party asked this Court to make such a declaration. No notice has been given under s 36(3) in relation to the appeal. While the Attorney-General, through the Solicitor-General, made submissions on the question of compatibility, again, there was no legally represented contradictor. The Operation Smile parties, having no legal representation, made no useful submissions on the Charter. PILCH did make submissions on this issue before the learned trial judge but it chose not to participate in the appeal. PILCH's written submissions, filed at the trial, do not appear in the appeal book.[8] In these circumstances, we refrain from expressing a concluded view as to whether s 9(1) is compatible with the right to freedom of expression because it represents a measure necessary to protect the rights of others under s 15(3) of the Charter.

24 For similar reasons, we would decline to rule upon the Attorney-General's other submissions about the interpretation and application of the Charter. However, we note that one of those submissions is that the High Court decision in Momcilovic v The Queen[9] means that s 7(2) of the Charter now has to be considered as part of the s 32 exercise. Nettle JA has expressed his views on this issue.[10] As this may be an important question of general significance, we state our own brief observations.

25 Section 7 of the Charter provides:

7. Human rights-what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

...

26 Section 32 requires the court to construe statutory provisions in a way which is 'compatible with human rights'. The word 'compatible' is not defined. In R v Momcilovic[11] the Court of Appeal held, in effect, that an interpretation is not 'compatible' with human rights if it limits a human right, even if the limitation would be demonstrably justifiable under s 7(2); that s 7(2) plays no role in the interpretative task under s 32; and that s 7(2) only becomes relevant when the Court is considering whether to use its discretion make a declaration of inconsistent interpretation under s 36.

27 On appeal, the same question was considered by the High Court in Momcilovic v The Queen. We note:

a) Chief Justice French held that s 7(2) 'cannot inform the interpretative process which s 32(1) mandates. ... Section 7(2) could still have a role to play in informing the discretion of the court to decline to make a declaration of inconsistent interpretation under s 36(2).'[12]

b) Justices Crennan and Kiefel held jointly that 'it is not possible to read s 7(2) so that it operates with ss 32(1) or 36(2). It is not necessary to determine whether it has any other consequences, although it is difficult to discern that it might.'[13] More specifically, their Honours held that 'it cannot be concluded that the inquiry and conclusion reached in s 7(2) informs the process to be undertaken by the courts under s 32(1).'[14]

c) Justice Gummow held that '[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Pt 2, including, where it has been engaged, s 7(2). This relationship between ss 32(1) and 7(2) is thus similar to that between ss 5 and 6 of the NZ Act.'[15] The words 'where it has been engaged' appear to refer to the possibility, raised by his Honour, that 'provisions such as s 15, which set out specifically qualified rights, are [not] further qualified by s 7(2).'[16]

d) Justice Hayne agreed with Gummow J on this issue.[17]

e) Justice Heydon held that in 'assessing under s 32(1) whether a particular interpretation of a statutory provision is compatible with a human right, it is necessary to decide what a reasonable limit to that right is according to s 7(2) criteria.'[18]

f) Justice Bell concluded that 'compatibility with human rights for the purposes of the Charter is to be understood as compatibility with the rights as reasonably limited under s 7(2)'.[19]

28 Hence, there seems to be a 4:3 majority in the High Court that s 7(2) informs the s 32(1) interpretative task. However, of the four members of this majority, two - Hayne and Heydon JJ - dissented as to final orders. The majority allowed the appeal and ordered a retrial. Justice Hayne would have allowed the appeal and quashed the presentment. Justice Heydon would have dismissed the appeal. Notably, Heydon J was the only member of the Court to find s 32 of the Charter invalid.

29 It seems to follow that the dissenting judgments of Hayne and Heydon JJ could not form part of the ratio of Momcilovic[20] and hence there is no ratio on this point in the High Court.[21]

30 There is at least some doubt as to whether the Court of Appeal is bound to follow its previous decision in Momcilovic.[22] In Green v The Queen[23] Heydon J discussed the principle that an intermediate appellate court should follow its earlier judgments, unless satisfied that the earlier judgment is clearly wrong.[24] However, Green v The Queen did not consider whether this principle applies where there is a majority (albeit, non-binding) view in the High Court going against the earlier judgment. Nor did it consider whether the principle applies where the earlier judgment has been overturned by the High Court on appeal. Furthermore, even if the principle does apply in such circumstances, the fact that a majority of the High Court disagrees with the earlier judgment may be enough to satisfy the intermediate appellate court that the earlier judgment was clearly wrong.

31 It is unnecessary to decide the issue in this case so we leave the question open.

32 As we have found that the Charter does not a require a departure from the traditional strict liability construction of s 9(1), the question then becomes whether the impugned statements are misleading or deceptive (or likely to mislead or deceive) under that construction.

33 We agree with Nettle JA that, for the reasons given in [35]-[134] of his Honour's judgment, the impugned statements are misleading or deceptive or likely to mislead or deceive.

34 For the reasons given, we would allow the appeal. We agree with the orders proposed by Nettle JA.

35 This is an appeal from a judgment given in the Commercial and Equity Division whereby the judge dismissed the appellant's claim that the respondents had, by their conduct in publishing statements on their website and in printed materials, engaged in misleading and deceptive conduct contrary to s 9 of the Fair Trading Act 1999 (Vic) ('FTA').

36 At relevant times,[25] s 9 of the FTA provided that:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in the succeeding provisions of this Part is to be taken as limiting by implication the generality of sub-section (1).

37 The first respondent (Operation Smile) was incorporated on 15 January 1996 pursuant to the Associations Incorporation Act 1981. The fourth respondent (Mr Campbell) has been the public officer of Operation Smile since June 2001 and is a member of its committee. The second respondent (Operation Hope) was incorporated under the Corporations Act 2001 (C'th) and Mr Campbell has been its sole director since 1 July 2007. The third respondent (Hope Research) was incorporated under the Corporations Act 2001 (C'th) and Mr Campbell has been its sole director since 7 July 2005. He is also the sole shareholder of Operation Hope and Hope Research.

38 Although Mr Campbell variously holds himself out as 'Dr Campbell' and 'Professor Campbell' he is neither a medical doctor nor a tenured professor of any Australian or other university. He assumes the title 'Dr' on the basis that he once practised in Victoria as a dentist, and the title 'Professor' on the basis that he was once appointed as a 'visiting professor' by a university in China. The judge found that:

He [Mr Campbell] was first registered as a dentist in Victoria in 1968. The [Dental Practice] Board found him guilty of professional misconduct as a result of having provided what the Board found to be grossly negligent dental treatment and suspended his registration for three months with conditions for re-education and for the monitoring of his practice. An appeal by Professor Campbell to this court was dismissed. A new allegation was received against Professor Campbell in 1999 but the Board was not able to deal with it because Professor Campbell had relinquished his Victorian registration. The Board in Victoria refused to re-register him as a dentist in 2001 citing his character as the reason that registration would be contrary to the public interest. However, he appears to be continuously registered as a dental practitioner with the Dental Board of New South Wales. That Board received complaints regarding the matters that would have been raised in the 1999 complaint but has taken no action.

...

[Mr Campbell] was described in the website as Professor by virtue of an honorary professorial position at a University in China given to him by reason of charitable work he has undertaken in China and the Philippines for surgery on children with cleft palates. The evidence before me is that Professor or Doctor Campbell in entitled to be described, and to describe himself as Professor or Doctor as do others with his qualifications or honorary titles.

39 In fact, the evidence did not go quite so far. It consisted of a report of Health Services Commission, Victoria (HSCV) in which it was stated that:

Noel Campbell states he ceased using the title 'Dr' and began using the title 'Professor' in early 2000, on the basis of legal advice. He claims the title [of Professor] was given to him by Binzhou University China in recognition of his charity work.[26] In support of this claim, he provided the Inquiry with a copy of a certificate (in Chinese, with a corresponding English translation). The certificate dated 18 January 1998 from President Guo Wei of Bin Zhou Medical College is made out to 'Mr Noel Rodney Campbell' and states as follows: 'We engage you as a visiting professor of Bin Zhou Medical College'. Noel Campbell states he is currently reviewing the use of the title 'Professor'.

Binzhou Medical College is located in the Shandong Province of China and offers courses in both conventional and traditional Chinese medicine.

40 The HSCV report was the result of an inquiry into the conduct of Mr Campbell which was undertaken by HSCV at the request of the Minister for Health pursuant to s 9(1)(m) of the Health Services (Conciliation and Review) Act 1987. In the report, HSCV found that Operation Hope operated a clinic called the Hope Clinic which offered complementary therapies for the treatment of a wide range of illnesses and conditions, including cancer, constipation, multiple sclerosis, Crohn's disease, bird flu, shingles, autism, Gulf War syndrome and heavy metal toxicity. The main focus of the clinic, however, was the treatment of cancer, for which it offered three forms of therapies:

a) Tumour destructive therapies consisting of photo-dynamic therapy (PDT), radiowave therapy with glucose-blocking agents, ozone therapy, electrotherapy, mild hyperthermia therapy and sonodynamic therapy (SDT);

b) Metabolic support therapies consisting of organic foods, nutritional supplementation with vitamins and amino acids, immune boosting supplements (namely, the Chinese herb Astragalus and Japanese reishi and shitake mushrooms);

c) Mind-body therapies consisting of meditation and counselling.

41 HSCV concluded that the treatments offered by the Hope Clinic:

... are either of no benefit or unproven in terms of efficacy and that the corresponding costs incurred by vulnerable cancer patients are of concern. The Inquiry notes that the treatments involving 'bowel and vaginal insufflation' and the use of enemas are seemingly ridiculous and particularly undignified for patients in a seriously ill condition.

42 On the recommendation of HSCV, the Minister for Health referred the inquiry's report to Consumer Affairs, Victoria to investigate possible contraventions of the 'unconscionable conduct' and 'misleading and deceptive' conduct provisions of the FTA.

43 To that end, on 12 February 2010 an officer of Consumer Affairs went online and captured the contents of a website conducted under the domain name www.smile.org.au of which the registrant was Operation Smile and the contact for email address was noelc@smile.org.au. The website's homepage stated:

Welcome to Hope complementary and alternative cancer therapies integrated with western medicine.

It also contained a link entitled 'Objectives of integrated complementary cancer therapies'. On clicking on the link, the officer was diverted to a web page containing among other things the following:

Cancer Treatment Objectives

Hope Research

The Hope Clinic offers complementary therapies for a wide range of illnesses and conditions. It provides peer reviewed and published methods of cancer treatment.

Your good health is assured through integrated complementary and conventional medicine to treat the body as a whole.

Holistic Approach:

Prof. Campbell together with the staff at The Hope Clinic, are totally committed to a multidisciplinary, holistic approach to cancer treatment.

Versatile Safe Alternate Therapies;

The Hope Clinic offers a wide spectrum of complementary treatment and therapies.

There are many conditions that are not successfully addressed by conventional medicine. At the Hope Clinic for Integrated Medicine, we offer what we believe is a more balanced and effective approach to the treatment (or support) of such conditions which range, for instance, from a number of life threatening illnesses and chronic fatigue syndrome to nutritional disorders and allergies.

We combine a range of approaches, which are broadly described as Integrated Medicine and focus on chronic illness. The techniques we use include state-of-the-art medical technology and subtle energy therapies such as homeopathy and acupuncture.

'It's always encouraging and a positive experience to visit the Hope Clinic -something I look forward to, rather than the dread of hospital visits and depressing, negative attitudes'.

It is the goal of Hope Clinic to provide the highest quality of care to patients. Since cancer is really a spectrum of diseases ranging from very aggressive to indolent; no single treatment can adequately be applied to all patients.

Our philosophy is to tailor a cancer management course for each individual patient that provides optimal control while minimizing the chances for debilitating complications. In some patients with low risk disease/cancer this means a careful monitoring with a course of combined modalities.

These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.

The key for an individualized approach to cancer treatment is an accurate assessment of a patient's disease. At the Hope Clinic, we provide an unique diagnostic processes [sic] that can better assess the patient's cancer.

The Hope Clinic is happy to review your current information and give you a preliminary outline of possible courses of further diagnosis and treatment.

WHY WE ARE DIFFERENT

The network of colleagues who make up this institute are committed to reading and researching all published information. We contact scientists and physicians all over the world to learn at first hand from these eminent colleagues in hospitals, universities and laboratories.

Our foundation finds treatments from integrative, complementary and conventional medicine. We investigate and combine support therapies to enhance efficacy and decrease side effects for faster, safer and more comfortable treatment in many different diseases.

SUCCESSFULLY TREATED DISEASES

Autoimmune diseases including Rheumatoid Arthritis, Graves' Disease, Hashimoto' Syndromes, Ulcerative Colitis, Chrohn's disease, Borreliosis/ Lyme Disease.

Cancer including Gastrointestinal Thyroid, Pancreas, Breast cancer with brain metastases, Cervical cancers, Lymphoma, Leukaemia and many others.

Viral Diseases including Mononucleosis (EBV) cured in 24-48 hours. Coxsackie B virus, Herpes, HIV, and upper respiratory viruses.

RESEARCH

The newest research in cancer indicates involvement of bacteria and parasites including Chlamydia, borrellia and mycoplasm. In tumour cells the acidic conditions cause pathogenic changes in normally non-pathogenic bacteria allowing them to release tumour growth factors as well as effecting [sic] the immune system.

Some of these bacteria and parasites appear to pleomorphic, living inside cells including leukocytes, lymphocytes and red blood cells (erythrocytes). We are presently investigating identification of these pathogens and methods for their eradication. The work is being carried out in England and the USA and may lead to many exciting and effective new treatments for cancer.

WHAT ARE WE OFFERING IN NUTRITION?

We have a booklet showing the best nutrients and diets for a wide range of diseases.

The Hope web site is for those who seek information about complementary alternative medical therapies (CAM) and access to economic integrated cancer treatment, which combines Western Medicine with Complementary and Alternative therapies.

In the majority of cases these treatments lead to an extension of life and an improvement in the quality of life.

For those who have chosen physical well being as a meaningful way of life, Hope offers a balanced combination of the best orthodox and complimentary approaches to healing cancer in the body.

The body has the innate power to heal itself from cancer but we must first treat any toxic burden, and then nourish body mind and spirit with live organic food, supplementation, exercise and emotional healing.

We also need to provide natural cancer destructive therapies to reduce the number of cancer cells that the body has to treat. We offer many complementary cancer therapies which are compatible with western medical therapies leading to an integrated approach to cancer.

The Hope Organisation was created in 1998 with the goal of offering patients a comprehensive multidisciplinary integrated approach to the treatment of cancer, and other chronic diseases, emphasizing early detection, accurate staging, and a full range of minimally invasive western and complementary options, without significant side effects, using the latest advances in medical technology against cancer.

Integrated oncology has the potential to transform both individuals and the system of cancer care. In the process, a more sustainable approach to cancer health care can emerge, grounded in the guiding principles of medicine and focusing on all participants at all levels of their experience. Integrative oncology also has the potential to improve outcomes with regard to prevention, supportive care, and anti cancer therapy.

We are at a critical juncture in the evolution of complementary cancer therapy. In order for the development of an integrated approach to cancer to be successful the efforts of researchers, clinicians, patient advocate groups, corporate health care workers, and policymakers must be combined. Such a process will allow for rational planning, development, and implementation in the setting of diminishing resources for cancer therapy.[27]

44 There followed what was described as a summary of the 'conventional approach to cancer treatment' starting with 'primary treatment', and concluding with reference to 'life extension' and 'palliation'; and then this:

Dr Holt argues radiowave therapy has its place with most cancers and can cure; can reduce tumours; can stabilise disease progression; can achieve remission; can bring life extension and can be a useful palliation instrument. This may be the case, as there are patients with different forms of cancer who will testify to its efficacy. The Clinic however, can make only the claim that it can provide the treatment that Dr Holt was providing at the time of his retirement, together with seven other complementary and alternative medical procedures.

It has also been argued that radiowave therapy and photo dynamic therapy should be considered in certain cases as a first line of treatment because it has no long-term side effects, can be repeated, is non invasive and may work best when there has been no previous patient history of chemotherapy. An example of where this could be a good approach would be where a patient undertook the treatment and their tumour reduced to the point where they could have a more effective outcome from surgery. This would be a great outcome. However, it would have to be the patient's decision entirely to undertake Hope therapies in preference to other more conventional treatments. The Clinic can only strongly recommend patients talk with those they trust most and share their thoughts with their medical advisors.

All too often, it seems that the Clinic is treating patients as a last resort measure. It may well be that some people are not getting what they seek from conventional treatments or that the opportunity for their best results have passed. It is quite understandable that in these instances, people become open to other options like Hope therapies which may well be able to help in a way that other treatments have not. Yet the same cautions must apply - the patient must choose the therapy through their own decision-making and have met the conditions of the Clinic to be eligible.

Whatever it is that you are intending to gain from whichever treatment you undertake, it is important to be realistic, have been a part of the decision-making and have sensible expectations.

A last word on this topic; it is better to meet a fair expectation that to never reach a higher one. To this end, there are options for patients. The more one knows about their condition, the better equipped they are to set, govern and meet fair expectation than never reach their own objectives.

45 The homepage contained a link entitled 'Individual Cancers' which, when clicked upon, diverted the officer to another web page containing links to further web pages about different types of cancers; and, within the web pages about bladder cancer, cervical cancer, endometrial cancer, leukaemia, liver, melanoma, neuroblastoma, oral leukoplakia, osteosarcoma, ovarian cancer, pancreatic cancer, prostate cancer, prostate enlargement and skin cancers, another link which, when clicked upon, diverted the officer to a page headed 'Alternative Cancer Treatments Available at the Hope Clinic', and further links to a page entitled Bladder Cancer. That page described those treatments as being 'Photo dynamic therapy' (PDT); 'Holt radiowave & microwave therapy'; 'Oxygen therapies'; 'Electrotherapy'; 'Neuro-Immunology'; 'Insulin potentiation therapy'; 'Autologous Vaccine'; 'new Sonodynamic Therapy' (SDT); and, on further links, 'Ketogenic diet' and 'High dose intravenous Vitamin C'.

46 The web page extolled the supposed benefits of the Hope Clinic's 'Russian Photo Dynamic Therapy technique' for reducing PSA in men suffering from prostate cancer; Hope Clinic 'Photo dynamic therapy, Holt radiowave & microwave therapy, oxygen therapy, Electrotherapy, Neuro-immunology, Insulin potentiation therapy, Autologous vaccine', Sondynamic therapy, Ketogenic diet and high dose vitamin C as techniques which have 'proven safe gentle and effective at reversing and preventing' lung cancer; the supposed superiority of Holt Microwave Therapy over conventional radiotherapy being that it can be 'repeated as many times as necessary to control the cancer'; the benefits of 'Ozone Therapy' in the treatment of cancer as a 'complementary measure applied in addition to standard methods' with 'impressive results due to its function as a immunstimulatory agent'; and the ability of 'Hyploglycemic Potentiation Therapy', as 'an alternative medicine pharmacology strategy for the chemotherapy of cancer' using high dose vitamin C instead of insulin to allow three natural anti cancer agents to readily enter the cancer cell: Artemisinin Silymarin and Feverfew' and thereby to 'be targeted more specifically and more effectively to cancer cell population, thus virtually eliminating dose-related side effects while claiming enhancing antineoplastic effects'.

47 It also contained a link entitled 'Fees and Payments' which when clicked upon diverted the officer to a web page entitled Fees and Payments' which contained the following:

Pre-treatment Consultation at Hope Research ...AUD$230.00(inc GST)... Repeat Patient Hope Consultation (Existing Patients) ... AUD$70.00 (inc GST)

... One week course of treatment ... AUD$3,000 (inc GST)... Three week course of treatment ... AUD$3,000 (inc GST)...[28]

48 On 19 February 2010, the Director of Consumer Affairs, Victoria wrote to Mr Campbell requesting him:

(a) to remove from the website, forthwith, all representations in any form whatsoever to the effect that the therapies offered by the Hope Clinic:

(i) can cure cancer, or reverse, or stop or slow its progress;

(ii) prolong the life of a person suffering from cancer;

(b) to undertake that no representations in any form whatsoever would be made by the [Respondents] to the effect that the therapies offered by the Hope Clinic:

(i) can cure cancer, or reverse, or stop or slow it progress;

(ii) prolong the life of a person suffering from cancer;

(c) to undertake that the name 'Hope Clinic' would not be used in anyway in connection with any complimentary [sic] or alternative health practice or other business unless registered pursuant to the Business Names Act 1958.

49 Mr Campbell replied by email dated 25 February 2010 that he had modified the website but that he was prepared to give only limited undertakings to Consumer Affairs, Victoria and only on behalf only of Operation Hope (Australia). In his email he also contended that the findings of HSCV were wrong and that the therapies offered by the Hope Clinic were evidence based therapies and were supported by rigorous scientific evaluation.

50 The Director replied by letter of 5 March 2010 that Mr Campbell's response was unsatisfactory and reiterated her earlier request for undertakings in the form sought in her letter of 19 February 2010.

51 Mr Campbell replied by letter dated 24 March 2010 that:

• Hope has never claimed that it can cure cancer.
• Hope does claim that in some patients there is a reversal of cancer / a slowing of progress of cancer/ there is an extension of good quality life in some patients
• All treatments by Hope are based on generally accepted science and are supported by evidence based findings as demonstrated by reference to Pub Med.[29]

52 This proceeding was commenced by originating motion dated March 2010 which was filed on 11 May 2010. By the originating motion the Director of Consumer Affairs, Victoria sought, among other relief, declarations as to the misleading nature of representations said to have been made by each defendant by means of the web site that 'the treatments, services, techniques or procedures offered or provided by the Hope Clinic:

a) can cure cancer, or reverse, stop or slow its progress;

b) can prolong the life of a person suffering from cancer;

d) were or are supported by generally accepted science;

e) were or are supported by published research findings;

53 Mr Campbell represented himself at trial and, for reasons which do not appear from the judge's reasons, his Honour allowed Mr Campbell to represent the corporate defendants too. It does not appear whether the judge took into account the considerations adumbrated in Worldwide Enterprises Pty Ltd v Silberman.[30]

54 The case proceeded as a matter of relative urgency without the benefit of pleadings. The Director relied on an outline of submissions in which it was contended that the impugned representations consisted of general representations as to the benefits provided by 'Hope Clinic' and representations specific to the therapies offered by the Hope Clinic. Those submissions set out the impugned representations in a table.[31]

55 The judge dealt with each of the impugned statements seriatim and in all but one case found that they were not misleading or deceptive in the context in which they appeared. I propose to deal with the impugned statements in the same order as his Honour.

It [the Hope Clinic] provides peer reviewed and published methods for cancer treatment...

57 The evidence was that the methods used by the Hope Clinic were published but that the place of publication did not carry the scientific and scholarly weight required by conventional medical practitioners to qualify a publication as peer reviewed. The judge found, accordingly, that the treatments dispensed by the Hope Clinic were not peer reviewed and published in the sense conceived of by conventional medicine and prevailing scientific practice. His Honour took the view, however, that it was not clear that anyone reading the impugned words would understand that the methods had the approval of orthodox medicine or had been peer reviewed in the sense of peer review according to conventional medicine and prevailing scientific practice. He said that he based that conclusion on the fact that the website drew a clear distinction between orthodox medicine and the treatments promoted at the Hope Clinic and that, in that context, it would be apparent to a reader that whatever was meant by 'peer review[ed] and published methods' it was not intended to be a reference to prevailing scientific norms and standards. More precisely, as his Honour expressed his reasons:

The Director has not satisfied me that the impugned statements are false and misleading in the context in which they appeared. The nature of the treatment at the Hope Clinic was identified in the website as not that of orthodox medicine (variously described as western medicine, traditional medicine, etc), and the references throughout the website to the publications said to support the treatment would show a reader that whatever was meant by 'peer review[ed] and published methods' it was not intended to be a reference to the prevailing scientific norms and standards. The test of whether a statement is false and misleading does not depend upon whether it is capable of a false or misleading construction when subjected to analysis by lawyers and experts in a court of law. Nor does it depend upon whether it would have been possible, and possibly more prudent, for the statement to have been expressed differently. The purpose of s 9(1) of the Fair Trading Act is not to encourage disputes about forms of expression. I might agree that the impugned statement could have been expressed in a way to put beyond argument that by 'peer review[ed] and published' what was meant was what Professor Campbell submitted it to mean, but s 9(1) is not engaged just because the statements could have been expressed differently where in their context they are not established as conveying the false and misleading meaning.

58 With respect, I disagree with his Honour's conclusion. Granted that parts of the website to which his Honour referred drew a distinction between conventional medicine and the so-called 'complementary therapies available at Hope Australia', the net effect of the first impugned statement, in the context in which it appeared, was in my view plainly to imply that the methods of treatment offered by Hope Clinic were just as scientifically based and rigorously tested as those of conventional medicine.

59 To determine whether an advertisement is misleading or deceptive within the meaning of s 9 of the FTA it is necessary to consider the whole of the context.[32] As appears from what is set out above, the context included the claim that the Hope Clinic adopted an integrated approach to the treatment of chronic illness combining state-of-the-art medical technology with alternative therapies; the explicit description of Hope Clinic therapies as the best scientific complementary medicine; the ostensibly scientific names ascribed to the therapies offered by the Hope Clinic, such as 'photo dynamic therapy', 'Holt Microwave therapy' 'Oxygen therapy' and 'Biolife electotherapy'; the assertion as to practitioners of complementary medicine not hesitating 'to employ conventional medical practices'; the explicit assertion that the Hope Clinic's combination of alternative treatments with conventional medicine would optimize a patient's treatment plan; and the surely very remarkable claim that:

The network of colleagues who make up this institute are committed to reading and researching all published information. We contact scientists and physicians all over the world to learn at first hand from these eminent colleagues in hospitals, universities and laboratories.

60 A statement is misleading or deceptive or likely to mislead or deceive within the meaning of s 9 of the FTA if there is a real and not remote possibility, be it more or less than a chance of 50 per cent, of the statement leading into error the readers at whom it is directed.[33] Given that the web site was not aimed at a highly educated class in the community, but at the widest possible range of ordinary readers, I consider that the statement that the Hope Clinic therapies were peer reviewed and published methods for cancer treatment, in the context in which it appeared, undoubtedly gave rise to that possibility.

61 It is also relevant to note on this aspect of the matter that the respondents did not suggest below that readers of the website would not conclude that the Hope Clinic methods of treatment had the approval of orthodox medicine or had been peer reviewed in the sense accepted by conventional medicine and prevailing scientific practice. To the contrary, they put their defence - just as Mr Campbell had put his submissions before the HSCV inquiry - on the basis that their methods were evidence-based and peer reviewed in accordance with prevailing scientific practice. They having failed to establish that was so, the judge should have held that appellant succeeded. Instead, his Honour proceeded to decide the point on the basis of an alternative argument of his own design, that 'peer review[ed] and published methods' was not intended to be a reference to the prevailing scientific norms and standards. This court was told by senior counsel for the appellant that his Honour did not inform counsel that he had in mind to decide the point on that basis. If that is so, it is regrettable. Apart from causing unfairness to the appellant,[34] his Honour thereby deprived himself of the benefit of the submissions on the point with which we have been favoured.

There are many conditions that are not successfully addressed by conventional medicine. At the Hope Clinic for Integrated Medicine, we offer what we believe is a more balanced and effective approach to the treatment (or support) of such conditions...

63 The judge found that 'prevailing scientific wisdom' does not regard what is offered by the Hope Clinic as more balanced and effective than the treatments offered by conventional medicine but rather as harmful. His Honour held, however, that the impugned statement was not exceptionable, because

I do not consider it to be false and misleading for the purposes of s 9(1) of the Fair Trading Act for the defendants to express a belief, opinion or view which is contrary to traditional western medicine and prevailing scientific knowledge. The same may equally be said about the positive curative effects of any number of other views, including firmly held religious beliefs, which have no foundation or support in modern medicine or science and which, judged by that standard, are clearly wrong. The statement of the defendants' belief appears to be genuinely held and based upon material which they believe credible although it does not have the recognition and support of the prevailing scientific and medical community.

The impugned statement in the website comes within the observations in Glorie v WA Chip & Pulp Co Pty Ltd[35] of an opinion or a statement of mixed fact and opinion where the person to whom the statement is made will understand that there may be room for another opinion on the same matter. Indeed, it is clear from the statement itself that others, in this case those who adhere to conventional medicine and prevailing scientific knowledge, hold a contrary view. In that way it can be seen that the statement itself accommodates the view of Associate Professor Snyder and, rather than the statement being misleading or deceptive, it is apt to be correct and informative. That, of course, is not to endorse the treatment offered at the Hope Clinic as having any support from prevailing medical opinion or the prevailing scientific community or being efficacious in any way. This proceeding is not about endorsing the treatment at the Hope Clinic. I accept the evidence of Associate Professor Snyder that the treatments offered at the Hope Clinic are not approved or endorsed in any way by conventional medicine or in prevailing scientific opinions.

64 With respect, I disagree with that conclusion too. Although the impugned statement was expressed in subjunctive terms, the statements which followed it in the website strongly implied that what was asserted in the impugned statement was based on the facts asseverated in the latter statements and therefore that the impugned statement was a statement of fact.[36] According, however, to the evidence which the judge accepted, the treatments offered by the Hope Clinic were anything but a balanced and effective approach to the treatment of cancer. The statement was, therefore, misleading.

65 Moreover, even if the impugned statement were properly to be seen as a statement of opinion only, in context it implied that the basis for that opinion was that Hope Clinic employed a range of approaches combining state-of-the-art medical technology and subtle energy therapies with evidence based peer-reviewed alternative therapies. Since the opinion was not so based, the statement was misleading or deceptive.

66 I do not overlook the judge's observation that the impugned statement was one of opinion which would be understood by those to whom it was directed as leaving room for another or other opinions on the same matter. For present purposes, I also allow that Mr Campbell may honestly have believed his opinion to be based on credible material. Other things being equal, one might take leave to doubt that a man who trained as a dentist, and at least to that extent was au fait with scientific technique, would honestly conclude that the treatments offered by the Hope Clinic constituted 'a more balanced and effective approach' to the treatment of cancer than the approach advocated by expert medical practitioners. But I recognise that the judge had the advantage of seeing and hearing Mr Campbell give evidence. Even so, it does not detract from the consequence that the impugned statement was misleading or deceptive. It remains that it was misleading or deceptive because, implicitly, it purported to be based on a range of approaches combining state-of-the-art medical technology and subtle energy therapies with evidence based peer-reviewed alternative therapies.

The techniques we use include state-of-the-art medical technology[37] and subtle energy therapies such as homeopathy and acupuncture.

... the basis of the allegation of falsity and misleading was the implication said to be in the statement that the treatments offered was 'state-of-the-art' from the point of view of prevailing science and conventional medicine. For the reasons I have previously given I am not satisfied by the Director that the construction urged on her behalf is, or is the likely construction, that would be made by a reader of the words in the website. Professor Campbell joined issue with Associate Professor Snyder by maintaining that the treatments were 'state-of-the-art' therapies judged from the point of view of the practitioners and adherents to the treatments he promotes, and, to that end he sought to rely upon 70 references published and available through PubMed. It is unnecessary to consider that material other than to note, as I think was never seriously in dispute, that Professor Campbell appears genuinely to believe the treatments to be effective and his belief in, and promotion of, those treatments are in part based upon publications which do not receive acceptance by prevailing science and conventional medicine. It may for present purposes be accepted that his view may be erroneous when judged from the point of view of prevailing science and conventional medicine but it does not make the statement false and misleading in the context of the whole of the website which is directed at promoting a form of treatment described as not being within conventional science and conventional medicine.[38]

69 I disagree with that conclusion. With respect, the question was not one of the 'correct construction' or the 'likely construction', but of whether there was a real and not remote possibility, be it greater or less than 50 per cent, that readers of the web site would take 'state of the art medical technology' to mean state of the art from the point of view of conventional medicine.

70 For that purpose, the impugned statement needed to be viewed in context and, as has been seen, in context as it appeared as the second sentence of the following paragraph:

We combine a range of approaches, which are broadly described as Integrated Medicine and focus on chronic illness. The techniques we use include state-of-the-art medical technology and subtle energy therapies such as homeopathy and acupuncture.

That was followed a little later by the further statement:

The Hope web site is for those who seek information about complementary alternative medical therapies (CAM) and access to economic integrated cancer treatment, which combines Western Medicine with Complementary and Alternative therapies.

In turn, that was followed a little later again by the further statement:

The Hope Organisation was created in 1998 with the goal of offering patients a comprehensive multidisciplinary integrated approach to the treatment of cancer, and other chronic diseases, emphasizing early detection, accurate staging, and a full range of minimally invasive western and complementary options, without significant side effects, using the latest advances in medical technology against cancer.

71 Seen in that context, the impugned statement conveyed a reasonably possible if not strong implication that the claimed 'state-of-the-art medical technology' pertained to the 'Western Medicine' which it was claimed was included in its 'economic integrated cancer treatment', as opposed to the 'subtle energy therapies such as homeopathy and acupuncture' comprised within the rubric of 'Complementary and Alternative therapies'.

72 It follows, in my view, that there was a real and not remote possibility that the impugned statement would be so construed by the class of consumer to whom the website was directed.

Our philosophy is to tailor a cancer management course for each individual patient that provides optimal control while minimizing the chances for debilitating complications.

74 The judge found as a fact that the treatments offered by the Hope Clinic did not control cancer or provide an optimal control of cancer. As his Honour put it:

I accept Associate Professor Snyder's expert evidence about the state of scientific evidence and his opinion that Professor Campbell's treatment does not control cancer nor provide an optimal control of cancer.

Nevertheless, his Honour held that the fourth impugned statement was not misleading or deceptive, because:

... I am not satisfied that a reader of the statement, in its context, is likely to be misled into understanding the statement as being that the treatment at the Hope Clinic had the backing of conventional medicine and mainstream science. The website including this statement and the web page on which it was found was directed to promoting treatments which were expressed to be in contrast with conventional medicine and prevailing science.

75 In my view, that conclusion should also be rejected, for several reasons. First, the point for present purposes was not whether readers of the web site were likely to conclude that the treatments offered by the Hope Clinic had the backing of conventional medicine. It was whether it was misleading or deceptive or likely to mislead or deceive to express either as a fact or as an opinion that the treatments offered by the Hope Clinic would or were likely to achieve the optimal control of cancer .

76 Secondly, although the impugned statement was expressed in terms of the Hope Clinic's 'philosophy', I consider that there was a real and not remote possibility that the statement would be taken as one of fact that the Hope Clinic could provide the optimal treatment for the management of cancer.[39] The possibility of it being so construed was strengthened by the further statement immediately following the impugned statement, that:

These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.[40]

77 Given the judge's finding of fact that Hope Clinic treatments do not control cancer or provide an optimal control of cancer, any suggestion that the Hope Clinic could provide the optimal treatment for the management of cancer was palpably false and, therefore, misleading or deceptive or likely to mislead or deceive.

78 Thirdly, if the impugned statement were not seen as one of existing fact but rather only of opinion, it was nonetheless an opinion as to therapeutic effects likely to be achieved by the subjection of cancer sufferers to the treatments offered by the Hope Clinic; and, consequently, a representation as to a future matter. Perforce, therefore, of s 4 of the FTA, the burden was on the defendants to establish on the balance of probabilities that they had reasonable grounds for holding the opinion. As has been seen, the defendants did not adduce evidence sufficient to discharge that burden. The Pub Med material on which Mr Campbell purported to rely was shown by the expert evidence of Associate Professor Snyder (which the judge accepted) to lack scientific rigour and persuasion. Since the reasonableness of grounds for an opinion must be determined objectively as a question of fact as opposed to one of subjective belief,[41] it is apparent that the Pub Med material did not amount to reasonable grounds on which to base an opinion that the Hope Clinic treatments offered the best treatment option.

79 The fifth impugned statement was the statement already referred to that:

These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.[42]

80 The judge rejected the Director's contention that the statement was misleading or deceptive or likely to mislead or deceive, on the basis that:

The absence of scientific evidence to support that claim does not establish that it is either false or misleading. Whether or not the techniques are in fact proving to be the best option treatment for patients is a question of fact and opinion and not a question about whether the techniques have scientific evidence to support them. The statement expressed an opinion which Professor Campbell is permitted to hold and to express however wrong it may be. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd it was said:

An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.

The statement impugned is, in its context, an opinion about the benefits of the treatments offered at the Hope Clinic. It is not a statement that the benefits are achieved by reference to conventional medicine: quite the contrary. The context in which it appears shows that the opinion does not rely upon conventional medicine for its support. The opinion may be wrong by reference to conventional medicine and science, but that does not make it less of an opinion. Nor does it detract from the fact that there may have been some basis for the opinion albeit that the basis may not be 'scientific' in the sense meant by Associate Professor Snyder.[43]

81 In my view, the judge was wrong. For the reasons already expressed, I consider that, seen in the context of the immediately preceding statement, the fifth impugned statement gave rise at least to a real and not remote possibility of readers concluding that the treatments offered by the Hope Clinic were proving to be the best treatment option for patients who had previously failed to respond to conventional therapies. Given the judge's finding of fact that the Hope Clinic treatment did not control cancer or provide an optimal control of cancer, the fifth impugned statement was misleading or deceptive or likely to mislead or deceive.

82 Alternatively, if the fifth impugned statement were properly to be seen as one of opinion only, it was nonetheless a statement of opinion by a person or persons purporting to be expert - in the case of Mr Campbell, by a person purporting to be no less than a 'professor' within a 'network of colleagues...committed to reading and researching all published material... [who] contact scientists and physicians all over the world to learn at first hand from these committed colleagues in hospitals, universities and laboratories' - and as such it conveyed that the opinion was honestly held on rational grounds involving the application of relevant expertise.[44]

83 As was earlier noted, however, whatever grounds Mr Campbell or the other defendants may have had for expressing the opinion, they were not shown to be rational grounds. The expert evidence of Associate Professor Snyder, which the judge accepted, was that the research on which Mr Campbell purported to rely failed the fundamental requirements of rigorous and reliable scientific research. Nor was there evidence aliunde of a rational basis for relying upon scientifically discredited research of that kind. To the contrary, as the judge said:

The Director's recourse to conventional medicine and scientific evidence to impugn the assertion of fact that the techniques used at the Hope Clinic were not proving, in fact, to be 'the best treatment option' for the specified class of patients was met by Professor Campbell relying upon broad generalisations with little probative value. Professor Campbell made a series of assertions purporting to be statements of fact. His submissions contended that the Hope Clinic had been in operation since 1998 and that the overall results of the treatment program were assessed by a Dr Ballard as showing that: (a) approximately 80% of patients experienced a worthwhile improvement in quality of life; (b) approximately 60% of patients had a noticeable improvement in their cancer and in their immune system function; (c) that they had tended to see patients with advanced stages of cancer which had spread remotely through the body; (d) that patients with early localised cancer tended to respond much better; (e) that they saw the best results in prostate cancer where about 80% of patients experienced major tumour reduction; and (f) that they had seen some very good results with breast cancer and bowel cancer.

An obvious legal problem with Professor Campbell's attempt to rely upon this material was his attempt to give evidence of the findings made by Dr Ballard about matters requiring proof through a suitably qualified expert giving expert testimony that was reliable and admissible. The findings of Dr Ballard could not be tested if admitted through Professor Campbell. Professor Campbell may conceivably have been able to give expert testimony based upon his qualifications and experience but he did not establish his qualifications to do so. The fact that he may be a dentist may both entitle him to use the title 'doctor' and to hold himself out as having some scientific training, but it is not, of itself, sufficient to enable him to give expert testimony of the matters he sought to tender about Dr Ballard's findings. An additional problem for Professor Campbell was that the conclusions he expressed were stated with such generality as to be unhelpful for the basis of a decision by a court...

84 The judge appears to have thought it was without significance that the defendants did not adduce admissible evidence of a rational basis to rely upon the scientifically discredited material upon which Mr Campbell purported to rely. His Honour said that:

The Director's submissions also relied upon the failure by Professor Campbell to have provided 'acceptable supporting evidence' for the claims made in the statement the Director seeks to impugn. I need not dwell overly long upon the Director's reliance upon the asserted failure by Professor Campbell to have provided 'acceptable supporting evidence' beyond noting that it is for the Director to prove her case.[45]

85 With respect, I consider that part of his Honour's reasoning was also misplaced. Once the Director adduced acceptable expert evidence from Associate Professor Snyder that the research upon which Mr Campbell purported to rely was scientifically deficient, the persuasive burden shifted to the defendants to adduce evidence aliunde of a rational basis for relying upon research which has not been scientifically verified; and, in the absence of such evidence, the Director was entitled to rely upon the defendants' failure to adduce it as something which supported the inference to be drawn from Associate Professor Snyder's testimony that there were not reasonable grounds for the opinion expressed.[46]

86 Contrary to what appears to have been his Honour's understanding of the law, the effect of Logan J's analysis in Australian Competition and Consumer Commission v Jones (No 5) makes that very point clearly. Relevantly, Logan J said:

Mr Jones [the alleged deceiver] did not, in terms, state in his affidavit that the material which admittedly emanated from him and came to comprise the material termed 'Annexure A' by Dr Snyder also constituted the grounds upon which he made representations in which he stated that he had reasonable grounds for making a statement in that representation. Even though if, as a matter of fairness, this is how 'Annexure A' should be understood, this material does not, having regard to the critique made of it by Dr Snyder constitute 'reasonable grounds' for the making of the statements in these representations.

None of this is to suggest that Mr Jones is under any onus to disprove the alleged contraventions, much less that he must do so with scientific certainty. The onus of proving the contraventions on the balance of probabilities always lies on the Commission. In demonstrating why the Commission had not discharged that onus it would be open for Mr Jones, with an appropriate evidentiary foundation, to call in aid the kind of intuitive reasoning described by Herron CJ in EMI (Australia) Ltd v Bes:[47]

Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.

The evidence led by Mr Jones does not admit of a conclusion, reached by the application of this kind of intuitive reasoning, that the Commission has not discharged its onus. The areas of the curing of cancer and cancer survivorship are not ones where common experience could be a permissible touchstone for deciding the truth (or, strictly, a failure by the Commission to prove the untruth) of the admitted representations.

At the Hope Clinic, we provide an unique diagnostic processes [sic] that can better assess the patient's cancer.

88 The judge rejected the Director's contention that the statement was misleading or deceptive. His Honour reasoned that:

Whether what is provided can be described as a 'diagnostic process' and, if it is, whether it can also be regarded as a 'unique diagnostic process' requires a precise identification of the process and a factual inquiry by reference to whether the process may be entitled to the description as being first, diagnostic, and second, unique. Whether the process then satisfies the description that it 'can better assess the patient's cancer' requires the formation of an opinion. I do not consider the Director to have established it to be false and misleading for the website to express such an opinion on the evidence available to me.

89 I disagree. In context, the impugned statement appeared as follows:

We combine a range of approaches, which are broadly described as Integrated Medicine and focus on chronic illness. The techniques we use include state-of-the-art medical technology and subtle energy therapies such as homeopathy and acupuncture.

'It's always encouraging and a positive experience to visit the Hope Clinic -something I look forward to, rather than the dread of hospital visits and depressing, negative attitudes'.

It is the goal of Hope Clinic to provide the highest quality of care to patients. Since cancer is really a spectrum of diseases ranging from very aggressive to indolent; no single treatment can adequately be applied to all patients.

Our philosophy is to tailor a cancer management course for each individual patient that provides optimal control while minimizing the chances for debilitating complications. In come patients with low risk disease/cancer this means a careful monitoring with a course of combined modalities.

These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.

The key for an individualized approach to cancer treatment is an accurate assessment of a patient's disease. At the Hope Clinic, we provide an unique diagnostic processes [sic] that can better assess the patient's cancer.[48]

90 Read in context, I consider that the natural and ordinary meaning of the impugned statement was of existing fact: that the 'unique diagnostic processes' employed by the Hope Clinic were better able to assess a patient's cancer than the diagnostic processes employed by expert medical practitioners. If so, the statement was false.

91 Alternatively, if the statement were to be read as a statement of opinion only, it was nonetheless a statement as to a future matter: that the 'unique diagnostic processes' employed by the Hope Clinic were likely to result in a better assessment of a patient's cancer than the diagnostic processes employed in conventional medicine. The burden, therefore, was on the defendants to establish that there were reasonable grounds on which to base the opinion. They failed to do that. Mr Campbell did not have any recognised training (as opposed to training in alternative medicine) in the diagnosis of cancer or, upon the evidence, any successful experience in the diagnosis of cancer. Absent relevant training and experience, it is fanciful to suppose that a one time dentist with a some time interest in alternative medicine is better able to diagnose a patient's cancer than a specialist oncologist.

92 Finally, on this point, even allowing for the possibility that some aspects of alternative medicine may ultimately prove to be beneficial in the treatment of cancer, the impugned statement was still misleading or deceptive or likely to mislead or deceived because, upon the evidence, it remains objectively to be established that alternative medicine can produce those benefits. Thus, to adopt and adapt the language of Hill J in Tobacco Institute and AFCO,[49] the impugned statement was misleading and deceptive not because it was objectively true or false but because it represented that there was an objective truth when, at least on the present state of knowledge, that was not so.

93 The seventh impugned statement, which was located on the link entitled 'Objectives of integrated complementary therapy' on the website captured on 12 February 2010, was:

SUCCESSFULLY TREATED DISEASES ... Cancers including Gastrointestinal, Thyroid, Pancreas, Breast Cancer with brain metastases, Cervical cancers, Lymphoma, Leukaemia and many others ...

94 The judge found that the statement was misleading and deceptive but declined to make any order in respect of the statement because of a Disclaimer which was added to the website after 12 February 2010 and because, at the time of trial, the website no longer contained a link to the 'Objectives of integrated complementary therapy'. The disclaimer was as follows;

Disclaimer

Some of the evidence of this web site has not been evaluated by the Therapeutic Goods Authority in Australia.

The information provided is not intended to diagnose, treat, cure or prevent any disease.

The entire contents of this web site are based upon the opinions of Professor Noel Campbell and are published in accordance with The Victorian Charter of Human Rights and Responsibilities.

Individual references are based upon the opinions of the respective authors.

The information is not intended to replace a one-to-one relationship with a qualified health care professional and is not intended as medical advice.

It is intended as a sharing of knowledge and information from the research of Professor Noel Campbell and his colleagues.

95 I do not regard the Disclaimer as sufficient to prevent the seventh impugned statement being misleading or deceptive or likely to mislead or deceive. As Logan J observed in Australian Competition and Consumer Commission v Jones (No 5):

No disclaimer, in itself affords absolution from committing a contravention of s 52 ... of the Act [s 9 of FTA]. Each must be considered in the context of the conduct as a whole, which in this case means considering any disclaimer in the context of the website...[50]

96 Perhaps, if the seventh impugned statement were the only misleading statement on the web site, the judge would have been justified in refusing to make a declaration to that effect. But, since each of the first seven impugned statements was in my view misleading and deceptive, I consider that it is appropriate to make declarations and consequential orders in respect of all of the impugned statements.

97 The eighth impugned statement, which was also located on the link entitled 'Objectives of integrated complementary therapy' on the website captured on 12 February 2010, was that:

In the majority of cases these treatments lead to an extension of life and an improvement in the quality of life.

98 The judge rejected the Director's contention that the statement was misleading and deceptive because, his Honour said, he considered it to be in the same class as the fifth statement, and so:

an expression of an opinion which in the context in which it was made is not false or misleading as objectively determined by reference to the general public or the likely class of the public to whom it is directed.

99 His Honour appears to have reasoned that, inasmuch as the impugned statement appeared in the context of an explanation of methods of treatment which were posited as alternative to those of traditional medicine and prevailing scientific knowledge, it was apparent that it was a statement of opinion based upon considerations other than the standards of traditional medicine and prevailing scientific knowledge. More specifically, as his Honour put it: 'The context of the website demonstrate[d] that the defendants were coming from a different point of view'. It followed, his Honour said, that he was not persuaded that, in their context, the words have a meaning other than that the proponents of the Hope Clinic believe that what is provided at the Hope Clinic can be effective to prolong and improve life.

100 I disagree. As I see it, the eighth statement is like the fifth, but so because there is at least a real and not remote possibility of readers interpreting it as a statement of existing fact that, in a majority of cases to date, Hope Clinic treatments have led to an extension of life and an improvement in the quality of life. As has been noted, that was not so. As the judge found, Hope Clinic treatments did not control cancer or provide an optimal control of cancer.

101 Moreover, even if readers interpreted the eighth impugned statement as one of opinion only, as opposed to existing fact, it would remain (like the fifth impugned statement) a statement of opinion by a person or persons purporting to be expert and, as such, would be likely to convey that the opinion was honestly held on rational grounds involving the application of relevant expertise.[51]

102 I do not overlook that the judge found that Mr Campbell honestly believed what he said and considered that it was justified on the basis of the Pub Med and other material on which he purported to rely. But, as with the fifth impugned statement, that does not mean that Mr Campbell had rational grounds for his opinion. I repeat that the expert evidence of Associate Professor Snyder, which the judge accepted, was that the research on which Mr Campbell purported to rely failed the fundamental requirements of rigorous and reliable scientific research; and there was no admissible evidence aliunde of a rational basis for relying upon scientifically discredited research of that kind.[52]

To conclude that in all cases it is false and misleading to opine that treatments at the Hope Clinic (by reference to its standards) extend life and improve the quality of life would deny the expression of an opinion from any point of view other than that of traditional medicine and prevailing scientific knowledge.

104 With respect, that is not so either. What is prevented is the expression of opinions in trade and commerce in terms which are calculated to convey that they are based upon rational grounds when in fact they are not so based. There is nothing amiss in expressing an opinion, even if it is irrational, provided the basis of the opinion is made sufficiently clear that is not misleading or deceptive. The fault in this case was not with the opinions which Mr Campbell purported to hold but the terms in which he chose to express them, and thus the consequent real and not remote chance of his expressions being interpreted as statements of fact or rationally based opinions.

105 The ninth impugned statement was the last located on the link entitled 'Objectives of integrated complementary therapy' on the website captured on 12 February 2010. It was that:

...Hope offers a balanced combination of the best orthodox and complimentary approaches to healing cancer in the body...

106 The judge rejected the Director's contention that the statement was misleading and deceptive because of evidence given by Mr Campbell that an oncologist, Dr John Sullivan, saw the patients at the Hope Clinic in the first week of their initial consultation with the Hope Clinic. As the judge observed, Mr Campbell's evidence in that respect was to some extent supported by the contents of the HSCV report:

The Commissioner recorded in her report [the HSCV report] into Professor Campbell that Dr Sullivan has a current practice at the Freemason's Day Procedure Centre in East Melbourne. The report also confirmed that Dr Sullivan had received referrals from those associated with the Hope Clinic. Dr Sullivan's approach to treatment may, I think, fairly be described as 'orthodox' as can be seen by the Commissioner's description of what she had been told by Dr Sullivan. Indeed, it appears from the report that Dr Sullivan does not believe that the treatment provided by Professor Campbell at the Hope Clinic works. Dr Sullivan is recorded in the Commissioner's report as having expressed concern that some patients had chosen to rely solely on the Hope Clinic therapies 'despite his advice and the advice of other doctors to pursue conventional courses of treatment'.

given the evidence of Professor Campbell of Dr Sullivan seeing the patients of the Hope Clinic in the first week of their initial consultation, the ninth statement appears to be accurate and neither false nor misleading. Indeed (although not strictly relevant to the issue) the combined evidence of Professor Campbell and that recorded in the report would provide some comfort against the concerns that those attending the Hope Clinic are at risk in not getting the benefit of advice from traditional doctors based upon conventional science.

108 With respect, that was not a sufficient basis to conclude that the ninth impugned statement was not misleading or deceptive or likely to mislead or deceive. The statement was not just a representation that the treatment provided by the Hope Clinic included orthodox medical treatment (which, to the extent noted by the judge, may have been the case). It was also in terms and in the context of the fourth to ninth impugned statements a claim that the so-called 'balanced combination' of orthodox and alternative medicine was likely to promote healing.

109 Contrary to that claim, the 'combination' was anything but 'balanced' and it was anything but salubrious. According to the admissible evidence already considered, it was unlikely to be of any real assistance and it carried a significant risk of proving positively detrimental. The evidence of Dr Sullivan, to which the judge referred, served to strengthen that conclusion. In his expert opinion, the combination was not balanced and the Hope treatments did not work.

110 In my view, the ninth impugned statement was misleading.

111 The judge dealt with the tenth and eleventh impugned statements together. They were located on the web page accessed through a link entitled 'FAQ: Frequently asked questions' as follows:

We tailor a cancer management course for each individual patient in order to improve his/her quality of life and extend his/her life.

[ ... ]

Our approach is devoted to the treatment and healing of difficult and complex conditions including cancer and other refractory or complex medical problems.

[ ... ]

We will advise you on what we think is best for you since we do not practice surgery and radiation nor do we administer chemotherapy. We are thus in a better position to give impartial advice on the efficacy and need for such treatments.

112 His Honour accepted that, according to the standards of conventional medicine and traditional science, the treatments offered by Hope Clinic do not improve quality of life and do not assist in the treatment of cancer patients. But his Honour held that the statements were not misleading or deceptive because, he said:

However wrong the statements might be from the point of view of conventional medicine and traditional science, the website is expressly directed at what is not within conventional medicine and traditional science. It is clear throughout the website, including the page on which these two statements are found, that what was referred to was something which does not have the approval of traditional medicine and prevailing science ... It is a matter of permissible opinion for the website to state a view which is expressly stated as not being that of conventional medicine and traditional science.

113 With respect, I disagree. Even assuming for the sake of argument that the impugned statements made clear that they were statements of opinion in no way based on conventional medicine and traditional science (and I do not accept that was so), the trouble with them is that there is no evidence of other reasonable grounds on which to base the opinion. Mr Campbell gave evidence that it was based upon complementary treatment sources to which he referred. But Associate Professor Snynder's evidence (which the judge accepted) discredited those sources as lacking scientific rigour and reliability. In the absence of evidence of rational grounds to rely upon those sources, the statements must be regarded as misleading.[53]

Today, most people continue to equate cancer with death or an excruciating journey back to health filled with physical debilitation and pain. However a variety of complimentary therapies exist at the Hope Research Institute that have proven safe, gentle and effective at reversing and preventing cancer.

...the network of colleagues who make up this Institute are committed to reading and researching all published information. We contact scientists and physicians all over the world to learn at first hand from these eminent colleagues in hospitals, universities and laboratories.

.... We investigate and combine support therapies to enhance efficacy and decrease side effects for faster, safer and more comfortable treatment in many different diseases.

Operation Hope was created in 1998 with the goal of offering patients a comprehensive multidisciplinary integrated approach to the treatment of cancer, and other chronic diseases, emphasizing early detection, accurate staging, and a full range of minimally invasive western and complimentary options, without significant side-effects, using the latest advances in medical technology against cancer.

Hope endeavours to provide the highest quality of care to patients. We tailor a cancer management course for each individual patient in order to improve his/her quality of life and extend his/her life.

Our treatment advice includes sophisticated reviews of all your treatments and diagnostic options, especially when there is a dilemma and you are having difficulty deciding what to pursue. There are complex cases where a patient may be in a bind because of conflicting advices from different professionals such as the surgeon recommends surgery and the oncologist recommends chemotherapy and it is not clear which is the best approach.

We will advise you on what we think is best for you since we do not practice surgery and radiation nor do we administer chemotherapy. We are thus in a better position to give impartial advice on the efficacy and need for such treatments.

115 The judge held that none of those statements was shown to be misleading or deceptive. In my view, they were all misleading or deceptive.

116 Statement 12 was misleading or deceptive for the reasons I have given in concluding that statement 4 was misleading or deceptive. Statement 13 was misleading and deceptive for the reasons I have given for concluding that statement 1 was misleading and deceptive. Statement 14 was misleading and deceptive for the reasons I have given for concluding that the eighth and ninth impugned statements were misleading and deceptive. Statements 15, 16 and 17 were misleading and deceptive for the same reasons I have given for concluding that second, third, fourth, fifth and sixth impugned statements were misleading and deceptive.

117 Finally, the judge dealt with impugned statements 18 to 34 as a 'tranche' as follows:

Photodynamic therapy - 'PDT...can work in situations where surgery would not be feasible (for example, in certain inaccessible tumours of the neck and throat).

Scientists and Practitioners in Russia, Europe and Japan report many cases of extremely good responses to 'second generation' PDT (PhotoDynamic Therapy) with chlorine-based photo-sensitizers in a variety of cancers (including cases of advanced pancreatic cancer, advanced metastatic breast cancer, advanced local as well as metastatic prostate cancer, and metastatic bowel cancer). It is hoped that similar benefits will be seen in individual cancer patients who attend our treatment program.'

'The Hope Clinic has designed a special light (patent pending) to use with a Russian Photo Dynamic Therapy technique which does not cause incontinence or impotence... It is a very powerful technique reducing the PSA in one patient from 960 to 100 in 10 days of treatment. This treatment can be performed daily at home at a low cost of $20/day...'

'Anecdotally there has been success using PDT with breast cancer and prostate cancer. There have been encouraging results with several types of brain tumour including glioblastoma multiforme, and many brain tumours significantly regressed during photodynamic therapy. One case of glioblastoma multiforma showed a total disappearance of tumour.'

'...This tumour destructive treatment is based on the work of Dr John Holt, who claimed that glucose-blocking agents with 434MHz radio waves (microwaves) were an effective cancer therapy.'

'Radio-wave Therapy & Glucose Blocking Agents may be applied in many cases of cancer where surgery, chemotherapy and X-ray radiation are contra-indicated....Treatment with Radio-wave Therapy & Glucose Blocking Agents may work in situations where surgery would not be feasible.'

'Active oxygen therapies have been used in Germany for over 50 years and are very effective against cancer. We use saunas, cupping and insufflation.'

'Ozone boosts the immune system and kills infections and cancer cells'

'...Ozone is not a cure, it is only a complementary measure applied in addition to standard methods. Having said this, case histories have shown that Ozone can produce impressive results due to its function as an immunstimulatory agent.'

'With the recent discovery of Papilloma virus in breast cancer the ozone and electro therapies used by Hope are very valuable in the treatment of breast cancer.'

'We have also developed and researched the Bio-Lyfe machine which boosts the immune system by increasing the number of CD4, CD8, & NK cells, which are often low in the majority of cancer patients so that they do not have enough soldiers to fight the fight against cancer.'

'Most cancer patients have lowered lymphocyte levels ... In this situation the Bio-Lyfe is the simplest and most cost effective device for starting home treatment.'

'Professor Lechin showed through 30 years of research that the chemicals coming from the brain dramatically affect the immune system and thus cancer.'

'By implementing insulin in conjunction with chemotherapy drugs, the cancer cells are highlighted as being different based on receptor concentration and are promoted to grow, which makes it likely that more of them will be in the S-phase cycle. These effects allow for the powerful chemo agents to target the cancer cells more specifically, sparing healthy cells and therefore chemo-related side-effects.'

'We are combining Photodynamic therapy with Sonodynamic therapy. This uses low-level ultrasound, which kills cancer cells using a non-thermal effect, especially cavitations...'

'PDT has several advantages over surgery and radiotherapy; it is comparatively non-invasive, it can be targeted accurately and repeated dosages can be given without the total dose limitations associated with radiotherapy, and the healing process results in little or no scarring.'

'BRIEF SUMMARY OF RESULTS FOR TEN RECENT CONSECUTIVE PATIENTS IN A COLLEAGUES CLINIC WHO HAS USED SDT OVER THE PAST 12 MONTHS:

1. 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.

2. Stage IV breast cancer with rampant body metastases. Very low energy, not enough to work in the garden. In bed by 7:30 pm. 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.

3. 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.

4. 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.

5. 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.

6. Squamous cell carcinoma grade 1. Lump on upper lip removed surgically. PDD showed 6 metastases on upper lip. After SDT all metastases have disappeared.

7. 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.

8. 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.

9. 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.

10. 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.'

'The ketogenic diet is designed to reduce the capacity of cancer or malignant cells to produce energy and thus induce either death of the cancer cell or reduce the rate of progression.'

'Vitamin C is most commonly used as an antioxidant. Recent work has shown that it can be used to destroy cancer cells in a non-toxic way when used in very large doses, and these large doses can only be achieved by intravenous use. In this situation vitamin C acts as a pro-oxidant, and destroys cancer cell membranes, and produces hydrogen-peroxide. The reason that cancer cells are more vulnerable to this approach, is that they have 10-100 times less catalyse enzymes present in them. Therefore vitamin C tends to concentrate in cancer cells when given at this high dose, and therefore destroys these cancer cells....We often combine this with B17 intravenously, which also concentrates in cancer cells and can destroy these cells.....All contents Copyright © 1990-2006 Operation Hope (Australia) Pty Ltd all rights reserved.'

118 The judge held that he was not satisfied that any of the Statements 18 to 34 was misleading or deceptive. His Honour reasoned that, insofar as the statements were statements of fact, they were not shown to be wrong; and that, insofar as the statements were representations as to the effectiveness of one or other of the treatments described, the statements identified the sources on which the opinions were based and it was not misleading or deceptive so to express an opinion if the basis of the opinion was disclosed, whether or not the accuracy of what was said in the sources was verified by proper evidence-based scientific method. As his Honour expressed his reasons:

The Director's response to this statement was in part that there are no clinical trials in the scientific literature which demonstrated any benefit of the therapy in the treatment of people with cancer, and in part that the use of the therapy was the subject of an investigation by the NH&MRC which 'failed to find evidence of benefit'. To some extent the nature and basis of the falsity contended by the Director in respect of the statements were, therefore, misdirected. The Director's submissions generally maintained, and for present purposes I assume maintained justifiably, that the treatments offered are not regarded as beneficial by conventional medicine and prevailing scientific opinion. That, however, does not go to or falsify assertions of fact. Thus, by way of further example, statement 23 asserted as fact that active oxygen therapies have been used in Germany for over 50 years and were said to be very effective against cancer. In partial response to this statement the Director relied upon Associate Professor Snyder's observation, no doubt correct, that the fact that therapy may be used for over 50 years 'is not evidence of its efficacy'. Nonetheless, accepting the accuracy of the observation of Associate Professor Snyder, as I do, it does not falsify the statement of fact impugned as being false and misleading.

The specificity of each of the statements in this tranche might be said to establish the more general challenge against the defendants that what appeared on the website as authoritative statements carried the false and misleading statement (by implication) that the therapies were effective and had foundation by reference to conventional medicine and science. However, what the impugned statements show is that the opinions expressed in the statement, however wrong, are based upon the views found elsewhere. It may be that those views themselves are wrong when judged by reference to conventional medicine and prevailing scientific opinion, but a person expressing an opinion (however wrongful) is not making a false and misleading statement by identifying the sources of what may for the purpose of the argument be presumed to be the error.[54]

119 With respect, I disagree with his Honour. Statement 18 is not just a statement of opinion, if indeed it is a statement of opinion at all. It is an assertion of fact that PDT can and does work where surgery is not feasible. And upon the evidence of Associate Professor Snyder, which the judge accepted, there is not a proper scientific basis to conclude that PDT can work in those circumstances. On this point, Associate Professor Snyder's evidence was clear that, with limited exceptions which are of no application here:

there is no evidence that this technique can cure cancer, or reverse or slow its progress, nor prolong the life of a person with cancer. Its use is not supported by conventional medical science nor by the current available evidence.

120 It is true, perhaps, that the claim as to the effectiveness of PDT is explicitly based on the assertion that 'Scientists and Practitioners in Russia, Europe and Japan report many cases of extremely good responses to 'second generation' PDT (PhotoDynamic Therapy) with chlorine-based photo-sensitizers in a variety of cancers (including cases of advanced pancreatic cancer, advanced metastatic breast cancer, advanced local as well as metastatic prostate cancer, and metastatic bowel cancer)'. But, in turn, that assertion is couched in terms likely to convey to readers that the reports of 'Scientists and Practitioners in Russia, Europe and Japan' are scientifically based and verified reports such that one is entitled rationally to rely upon them or that there is some other rational basis to rely upon them. Given the evidence of Associate Professor Snyder that those reports were not based upon or otherwise recognised according to proper evidence-based scientific research protocols, and in the absence of evidence to conclude that there is some other rational basis to rely upon them, the statements are misleading or deceptive or likely to mislead or deceive.

121 The same applies to Statement 19. In context, it implicitly conveys that the statement is based upon proper scientifically based research or that there was some other rational basis to commend it. The evidence was that there was neither.

122 Standing alone, the first sentence of Statement 20 might or might not be misleading or deceptive, depending upon what readers are likely to derive from the claim of 'anecdotally' based results. In case it matters, I suspect that a significant number of readers might not know what that means or at least would fail to comprehend its significance. But be that as it may, the rest of the statement suffers from the same defects as Statements 18 and 19, and indeed so dominates the first sentence of the statement as in my view to render the whole statement clearly misleading or deceptive.

123 Statement 21 is misleading or deceptive because it implicitly conveys that the work of Dr John Holt on which the statement purports to be based was carried out according to proper evidence-based scientific technique and productive of results which, judged according to proper scientific methodology, should be regarded as significant. The evidence of Associate Professor Snyder was to the contrary, and there was no evidence of any other rational basis to attribute relevant significance to the work of Dr John Holt.

124 Statements 22 to 24 are all statements of existing fact, like statement 18, and thus, for the same reasons as apply to Statement 18, are misleading or deceptive. Further, in the case of Statement 24, there was not only no acceptable evidence in support of the claimed benefits of the treatment, but Associate Professor Synder's evidence was that there are a number of dangers depending on the route of administration: scil, rectal: gas embolism (gas in blood vessel), bowel necrosis (death), sepsis (severe infection); and intravenous: destruction of blood cells, local irritation.

125 Statement 25 is misleading or deceptive for the same reasons as Statement 21.

126 Statements 26 and 27, both individually and still more so collectively, are misleading or deceptive because they implicitly convey that the 'Bio-Lyfe' machine is beneficial in the treatment of cancer. According to the evidence, there was no acceptable scientific research or other rational grounds on which to base that conclusion.

127 Statement 28 is misleading or deceptive for similar reasons as apply to Statement 21. On the evidence which the judge accepted, there is no more rational basis to rely upon or give weight to 'Professor Lechin' than there is to rely upon or give weight to the work of Dr John Holt.

128 Statement 29 is misleading or deceptive because of both its content and its context. Although not apparent from the Hope Clinic web site, the statement has been cribbed from a Wikipedia article concerning the benefits of insulin potentiation therapy in the treatment of some kinds of cancer, and then applied out of context as a means of inducing readers to conclude that the PDT treatments offered by the Hope Clinic have similar cancer alleviating benefits. The PDT treatments offered by the Hope Clinic are different to the insulin potentiation therapies spoken of in Wikipedia. They are not based on insulin potentiation but upon the oral ingestion of spirulina (derived from seaweed). As has been noted, the evidence before the judge was that, with some limited and presently irrelevant exceptions, there is no acceptable scientific evidence that PDT can cure cancer and no evidence of any other rational basis to conclude that it can. Still less, therefore, is there any basis to conclude that Hope Clinic's spirulina based treatments are at all beneficial in the treatment of cancer.

129 Statement 30 is misleading or deceptive because it implies that the combination of PDT and Sonodynamic therapies is productive of benefits in the treatment of cancer. The evidence before the judge did not support that conclusion. To the contrary, Associate Professor Synder's evidence was clear that there are no data relating to the benefit of sonodynamic therapy; there were no trials registered to test the therapy; and it is difficult to understand the claimed relationship between PDT and SDT.

130 Statements 31 and 32 are misleading or deceptive inasmuch as they compound the misleading and deceptive effects of Statements 21 and 30. The references in Statement 32 to individual cases of patients said to have benefitted from SDT exacerbates the problem by implying a degree of apparent, but in fact faux, scientific basis to conclude that SDT is beneficial.

131 Statement 33 is misleading or deceptive because, on the evidence before the judge, there is not an acceptable scientific or other rational basis to conclude that ketogenic diet reduces the capacity of cancer or malignant cells to produce energy and thereby induces either death of the cancer cell or reduction of the rate of progression. Further, as Associate Professor Snyder explained, there are health risks associated with the use of ketogenic diet, including ketosis and acidosis, weight loss, osteoporosis and kidney stones. It is not recognised as having scientific validity in the treatment of patients with cancer.

132 Statement 34 is misleading or deceptive because it implicitly conveys that the use of high dose intravenous Vitamin C is beneficial in the treatment of cancer. According to Associate Professor Snyder's evidence, there is no scientific evidence to support high dose intravenous Vitamin C in the treatment of cancer and the use of high dose Vitamin C has detrimental side-effects including thrombophlebitis (intravenous) and diarrhoea (oral); there is an effect on drug excretion, for example, levels of methotrexate are increased, leading to toxicity; and there is a theoretical possibility of interference with the action of various cytotoxic drugs because of the anti-oxidant action of the Vitamin C. Nor was there before the judge evidence of any other rational basis on which to conclude that high dose Vitamin C is of benefit in the treatment of cancer.

The six representations alleged by the Director

133 Finally, it is necessary to return to the six representations earlier referred to which the Director alleges were made by each defendant by means of the web site, that 'the treatments, services, techniques or procedures offered or provided by the Hope Clinic: (a) can cure cancer, or reverse, stop or slow its progress; (b) can prolong the life of a person suffering from cancer; (c) can benefit cancer sufferers; (d) were or are supported by generally accepted science; (e) were or are supported by published research findings; and (f) were or are evidence based therapies.'

134 The judge did not consider the point directly, because of his Honour's conclusion that none of the impugned statements on which the Director relies as establishing the six representations was misleading or deceptive. For the reasons given in concluding that the impugned statements are misleading or deceptive, I consider that the first four alleged representations and representations substantially to the effect of the fifth and sixth alleged representations are implicit in the web site. More precisely, I am persuaded that each of alleged representations (a), (b), (c) and (d) and a representation substantially to the effect of alleged representations (e) and (f) is or is likely to be conveyed to a reader of the web site by those of the impugned statements set out in the following table next to that representation, read in the context of the whole of the web site in the milieu in which was published and in view of the audience to whom it was directed

(a) That the treatments, services, techniques or procedures offered or provided by the Hope Clinic can cure cancer, or reverse, stop or slow its progress.

Statements: 5, 7, 8, 9, 10, 11, 12, 16, 18, 19, 20, 22, 23, 24, 25, 30, 31 and 33.

(b) That the treatments, services, techniques or procedures offered or provided by the Hope Clinic can prolong the life of a person suffering from cancer.

(c) That the treatments, services, techniques or procedures offered or provided by the Hope Clinic can benefit cancer sufferers were or are supported by generally accepted science.

Statements: 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 30, 31and 33.

(d) That the treatments, services, techniques or procedures offered or provided by the Hope Clinic are evidence based.

Statements: 3, 13, 15, 18, 21, 23, 25, 26, 28 and 29.

(e) That the treatments, services, techniques or procedures offered or provided by the Hope Clinic are supported by published (scientifically recognised) research findings.

(f) That the treatments, services, techniques or procedures offered or provided by the Hope Clinic are evidence based therapies.

135 At trial, Mr Campbell and the other defendants invoked the right of freedom of expression conferred by s 15(1) of the Human Rights and Responsibilities Act 2006 ('the Charter') and the requirement, imposed by s 32 of the Charter, to construe all statutory provisions (and thus s 9 of the FTA), as far as possible, consistently with their purpose, in a way that is compatible with the right of freedom of expression. Mr Campbell and the other defendants contended that to construe s 9 of the FTA as prohibiting publication of the impugned statements would be a contravention of s 15 of the Charter.

136 The judge declined to deal with the point. His Honour said that, because he was not satisfied that any of the impugned statements (other than the seventh) was misleading or deceptive, it was unnecessary for him to consider what would have been the effect of s 32 if the impugned statements had been misleading or deceptive. In the view I take of the misleading and deceptive nature of the impugned statements, it is necessary to say something about the Charter.

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

139 The effect of ss 32(1) and s 7(2) of the Charter was considered by the High Court in Momcilovic v The Queen.[55] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ concluded that s 32(1) does not alter the duty of a court as defined in Project Blue Sky Inc v Australian Broadcasting Authority[56] 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. It simply expands the range of background considerations against which the effect of a provision falls to be assessed. As French CJ put it:

It requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.[57]

140 Their Honours reached different views as to whether s 7(2) of the Charter informs the interpretive process under s 32(1). French CJ, Crennan and Kiefel JJ concluded that 'the logical structure of s 7(2)' is such that it 'it cannot be incorporated into the content of the rights and freedoms set out in the Charter' and, therefore, 'cannot inform the interpretive process which s 32(1) mandates'. As French CJ put it:

The question whether a relevant human right is subject to a limit which answers the criteria in s 7(2) can only arise if the statutory provision under consideration imposes a limit on its enjoyment. Whether it does so or not will only be determined after the interpretive exercise is completed. As the question of reasonable limitations on rights under the Charter is dealt with by s 7(2), it is neither necessary nor appropriate to find in s 25(1) the implied 'flexibility' found by the European Court of Human Rights in the presumption of innocence under Art 6(2) of the ECHR.

On the preceding logic, s 7(2) will also be excluded from consideration by the Supreme Court when determining, under s 36(2), whether a statutory provision cannot be interpreted consistently with a human right. Section 7(2) could still have a role to play in informing the discretion of the court to decline to make a declaration of inconsistent interpretation under s 36(2).[58]

141 In contrast, Gummow, Hayne and Bell JJ held that the relationship between s 32(1) and s 7(2) is similar to the relationship between s 5 and s 6 of New Zealand Bill of Rights Act 1990 and so, as McGrath J of the New Zealand Supreme Court concluded in Hansen:[59]

As between ss 5 [s 7(2)] and 6 [s 32(2)] it will usually be appropriate for a Court first to consider whether under s 5 [s 7(2)] there is scope for a justified limitation of the right in issue. The stage is then set for ascertaining if there is scope to read the right, as modified by a justifiable limitation, as consistent with the other enactment.

According to Gummow, Hayne and Bell JJ, it follows that s 32(1) is directed to the interpretation of statutory provisions 'in a way which is compatible with the human right in question, as identified and described in Pt 2, including, where it has been engaged, s 7(2)'.[60] Heydon J concluded that ss 32(1) and s 7(2) of the Charter were invalid.

142 There being no majority view as to the operation of s 7(2), one must deal with the point in the way that one thinks to be correct.[61] This Court held in Momcilovic that s 7(2) is to be considered only after the statutory provision in question has been interpreted in accordance with s 32(1). In my view it is appropriate to adhere to that approach until and unless the High Court determines that it is incorrect.[62]

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

144 Apart from s 15 of the Charter, it could not be doubted that s 9 of the Fair Trading Act 1999 ('the 1999 Act') was a legitimate restriction on freedom of speech. The section was a re-enactment, in the same terms, of s 11(1) of the Fair Trading Act 1985 ('the 1985 Act'). The 1985 Act was based on Part V, Division 1 and Part VI of the Trade Practices Act 1974 (C'th), with the purpose of achieving uniformity between Commonwealth and Victorian laws as to the proscription of misleading and unfair trade practices and, in particular for present purposes, to extend the prohibition for which s 52 of the TPA provided to aspects of trade and commerce to which the Commonwealth legislation could not reach.[63] At the time of enactment of s 11 of the 1985 Act it was well established that s 52 does not infringe the common law right of free speech.

145 As the Federal Court held in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd:[64]

the meaning of s 52(1) cannot be controlled by the doctrine of freedom of speech, which incorporates the freedom of the press. Although there is no right to speak freely given by the Constitution or by statute, free speech is of fundamental importance. But in this as in other areas, freedom does not mean licence but freedom under law in a civilized society.[65] Speech is free if it is free from unwarranted restrictions. Freedom of speech is but one of a number of competing rights and interests which must be accommodated. Part V of the Act is broadly concerned with 'Consumer Protection', which is itself an important matter of public interest. Like sedition, defamation, obscenity, copyright, etc, consumer protection can justify some restriction upon what may be published. The ambit of any restriction is a matter for Parliament to the extent that the subject is within its constitutional power...

146 Similar reasoning led the High Court to conclude that the implied constitutional right of political communication is subject to legitimate restrictions;[66] and, in the United States, notwithstanding that the First Amendment constitutional right to freedom of speech is expressed in unqualified terms, the United States Supreme Court has held that misleading and deceptive conduct in commerce is a 'fraud exception' to the right of free speech which is not entitled to unqualified protection.[67]

147 Nor is there any reason to suppose that Parliament's purpose in enacting s 15 of the Charter was to confer a right of free speech which included the right to engage in misleading and deceptive conduct in trade and commerce. To the contrary, given that s 9 of the FTA was enacted as part of a national scheme to reflect Part V of the Trade Practices Act 1974 and to extend its operation to aspects of trade and commerce to which the Commonwealth could not reach; and that the successor legislation to the FTA, the Fair Trading Amendment (Australian Consumer Law) Act 2010, was enacted to harmonise and make uniform the consumer protection laws of the Commonwealth, States and Territories (in the form of the Australian Consumer Law), there is every reason to conclude that Parliament did not envisage the right of freedom of expression conferred by s 15 of the Charter as including a right to engage in misleading and deceptive conduct in trade and commerce. The logical implication of s 15 is that it was intended to incorporate rather than add to common law rights and freedoms of free speech in trade and commerce.

148 If there were any doubt about that, s 15(3) in terms makes clear that the freedom of expression conferred by the section is subject to reasonably necessary restrictions to respect the rights and reputation of other persons and, in my view there can be no doubt that the proscription of misleading and deceptive conduct in trade and commerce is reasonably necessary to respect the rights of other persons.

149 Section 15 of the Charter is couched in terms similar to Article 10 of Schedule 1 to the Human Rights Act 1998 (UK) ('the Convention'). It provides that:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

150 Article 10 of the Convention fell for consideration by the House of Lords in R (ProLife Alliance) v British Broadcasting Corporation.[68] One question in that case was whether the BBC had infringed ProLife's freedom of expression by refusing on the grounds of taste and decency to broadcast videos produced by ProLife containing footage of an abortion and graphic images of an aborted foetus. The House of Lords held by majority that the BBC's decision not to broadcast the videos was not a discriminatory, arbitrary or unreasonable denial of the right to freedom of expression under Article 10(2) of the Convention. Relevantly, for present purposes, Lord Scott of Foscote said that:

It was not contended by counsel for the Alliance [ProLife] that a restriction barring the televising of a programme likely to be offensive to public feeling was, per se, incompatible with article 10. Nor should it have been. The reference in article 10(2) to the 'rights of others' need not be limited to strictly legal rights the breach of which might sound in damages and is well capable of extending to a recognition of the sense of outrage that might be felt by ordinary members of the public who in the privacy of their homes had switched on the television set and been confronted by gratuitously offensive material.

... The issue, therefore, on the present appeal is a narrow one. It is whether the rejection by the broadcasters of this particular programme, the purpose of which was to promote the cause of the Alliance at the forthcoming general election, was a lawful application by the broadcasters of the conditions by which they were bound. To put the point another way, was their rejection of the Alliance's desired programme necessary in a democratic society for the protection of the right of home-owners that offensive material should not be transmitted into their homes.[69]

151 To similar effect, Lord Walker of Gestingthorpe observed:

Nevertheless the citizen has a right not to be shocked or affronted by inappropriate material transmitted into the privacy of his home. It is not necessary to consider whether that is a Convention right (Mr Pannick made a brief reference to article 8, but did not seek to develop the point). Whether or not it is classified as a Convention right, it is in my view to be regarded as an 'indisputable imperative' in the language of the European Court of Human Rights in Chassagnou v France (1999) 29 EHRR, 687, para 113.[70]

152 More recently, a similar issue arose for consideration in Connolly v Director of Public Prosecutions.[71] That was an appeal against conviction under the Malicious Communications Act 1988 (UK) of an offence of sending communications which were 'indecent' or 'grossly offensive'. The accused was an anti-abortion campaigner who sent letters containing images of aborted foetuses to pharmacies selling the 'morning after pill'. She was convicted on the basis that the letters were 'indecent' or 'grossly offensive'. One ground of appeal was that proscription of her conduct infringed her right to freedom of expression under Article 10 of the Convention. That ground was rejected. Dyson LJ delivered the principal judgment. After referring to the observations of Lord Scott and Lord Walker which are set out above, his Lordship continued:

In my judgment, the persons who worked in the three pharmacies which were targeted by Mrs Connolly had the right not to have sent to them material of the kind that she sent when it was her purpose, or one of her purposes, to cause distress or anxiety to the recipient. Just as members of the public have the right to be protected from such material (sent for such a purpose) in the privacy of their homes, so too, in general terms, do people in the workplace. But it must depend on the circumstances. The more offensive the material, the greater the likelihood that such persons have the right to be protected from receiving it. But the recipient may not be a person who needs such protection. Thus, for example, the position of a doctor who routinely performs abortions who receives photographs similar to those that were sent by Mrs Connolly in this case may well be materially different from that of employees in a pharmacy which happens to sell the 'morning after pill'...

It seems to me that the position of the employees of the three pharmacists who were targeted by Mrs Connolly for the specified statutory purpose was closer to that of ordinary members of the public than that of the doctor or the politician in the two examples that I have given. In my view, the fact that they are employed by pharmacists that sell the 'morning after pill' is not of itself sufficient to deny to them the right to be protected from receiving grossly offensive photographs of abortions at their place of work, where the photographs are sent for the purpose of causing distress or anxiety. I would hold that the right not to receive such material when sent for such a purpose is a 'right of others' within the meaning of article 10(2) of the Convention.[72]

153 The Divisional Court in Connolly was of course bound by the decision of the House of Lords in Ghaidan v Godin-Mendoza,[73] and the High Court has since held in Momcilovic that Ghaidan is not to be followed in applying the Charter. But the reasoning of Dyson LJ which is set out above is not relevantly affected by Ghaidan. It is concerned with the application of ordinary processes of statutory construction to the right conferred by Article 10(1) subject to Article 10(2). As such, with respect, it is of assistance in the construction of s 15(1) of the Charter.

154 In the sense that each member of society has a right not to be subjected to offensive material, he or she also has a right not to be misled or deceived in trade or commerce. Hence the 'fraud exception' to the United States constitutional freedom of expression. Admittedly, it would not qualify as a right stricto sensu in the Hohfeldian sense or, in terms of Kocurek's analysis,[74] as a zygnomic right conferred by law for the protection of a de facto interest or claim. But it would amount to a mesonomic right or privilege in the nature of a de facto interest or claim which is indirectly capable[75] of protection by law.[76] And, as has been seen, Article 10(2) of the Convention is not restricted to rights strictly so called. It extends, at least, to the kind of mesonomic rights which in European parlance are conceived of as an indisputable imperative. The 'rights' referred to in s 15(3) of the Charter should be viewed in a similar fashion. Section 5 of the Charter lends support to that conclusion.

155 Approaching s 15(3) in accordance with the cannons of statutory construction dictated by Project Blue Sky thus implies that 'rights' includes the de facto interest or claim of a member of society not to be misled or deceived in trade or commerce.

156 As to what is meant by restrictions which are reasonably necessary to respect the rights of persons not to be misled or deceived in trade or commerce, the High Court held in Hogan v Hinch[77] that the phrase 'reasonably necessary' in s 15(3) is not limited to 'essential' or 'unavoidable' restrictions but calls for a judicial assessment of competing interests and ultimately of proportionality. As their Honours explained:

The phrase 'reasonably necessary', which is used in s 15 of the Human Rights Act, supplies a criterion for judicial evaluation and decision-making in many fields. Examples from the common law, statute law and Australian constitutional law were collected and discussed by Gleeson CJ in Thomas v Mowbray.[78] In an earlier decision, his Honour had pointed out that 'necessary' does not always mean 'essential' or 'unavoidable'.[79] He also observed that, particularly in the field of human rights legislation, the term 'proportionality' might be used to indicate what was involved in the judicial evaluation of competing interests which were rarely expressed in absolute terms.[80]

157 Similarly, with respect to Article 10(2) of the Convention, Lord Keith of Kinkel, speaking for a unanimous House of Lords in Derbyshire County Council v Times Newspapers Ltd[81] said:

As regards the words 'necessary in a democratic society' in connection with the restrictions on the right to freedom of expression which may properly be prescribed by law, the jurisprudence of the European Court of Human Rights has established that 'necessary' requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate to the legitimate aim pursued.[82]

158 The statements in Global Sportsman, as to the importance of consumer protection and the justification for some restrictions on freedom of speech in the interests of consumer protection, imply that any restrictions imposed on freedom of speech by s 9 of the FTA are reasonably necessary to protect the right of consumers not to be misled in trade and commerce.

159 That view also derives support from the observation of the United States Supreme Court in Virginia Pharmacy Board v Virginia Consumer Council[83] that misleading and deceptive conduct in commerce is within the 'fraud' exception' to the right of free speech.

160 The decision of the Canadian Supreme Court in R v Wholesale Travel Group Inc[84] upholding the validity of s 36 of the Competition Act[85] adds further support for that conclusion. So far as relevant, s 36 of the Canadian Competition Act provided that:

1. (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting ,directly or indirectly, any business interest, by any means whatever,

(a) make a representation to the public that is false or misleading in a material respect...

...

(5) Any person who violates subsection (1) is guilty of an offence and is liable

(a) on conviction on indictment, to a fine in the discretion of the court and to imprisonment for five years or to both; or

(b) on summary conviction, to a fine of twenty-five thousand dollars or to imprisonment for one year or to both.

161 Section 37 set forth a statutory defence as follows:

37.3

...

(2) No person shall be convicted of an offence under section 36 or 36.1, if he establishes that

(a) the act or omission giving rise to the offence with which he is charged was the result of error;

(b) he took reasonable precautions and exercised due diligence to prevent the occurrence of such error;

(c) he, or another person, took reasonable measures to bring the error to the attention of the class of persons likely to have been reached by the representation or testimonial; and

(d) the measures referred to in paragraph (c), except where the representation or testimonial related to a security, were taken forthwith after the representation was made or the testimonial published.

162 The question for the Court was whether the onus of proof which was cast on the accused by s 37.3 offended the rights conferred on the accused by ss 7 and 11 of the Canadian Charter of Rights and Freedoms to life, liberty and security and not to be deprived thereof except in accordance with the principles of justice, and to be presumed innocent until proven guilty according to law. In upholding the validity of the legislation, Lamer CJ observed that:[86]

This court has on several occasions observed that the Charter is not an instrument to be used by the well-positioned to roll back legislative protections enacted on behalf of the vulnerable. This principle was first enunciated by Dickson C.J.C. for the majority in R. v. Edwards Books & Art Ltd.).[87] He wrote,

In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.[88]

The same principle has been repeated and emphasized in Irwin Toy Ltd v. Québec (Attorney General).[89] This principle recognizes that much government regulation is designed to protect the vulnerable. It would be unfortunate indeed if the Charter were used as a weapon to attack measures intended to protect the disadvantaged and comparatively powerless members of society...

Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the onset of the Industrial Revolution...The differential treatment of regulatory offences is justified by their common goal of protecting the vulnerable.

The importance of the vulnerability concept as a component of the contextual approach to Charter interpretation has been recognized in the employer/employee field in Edwards Books, supra, and Slaight Communications, supra, and in the sphere of commercial advertising in Irwin Toy, supra. The same considerations should apply whenever regulatory legislation is subject to Charter challenge.

It follows that a contextual approach is required in the present case in order that the distinctive nature of regulatory offences and their fundamental importance in Canadian society may be considered. Both licensing and vulnerability considerations justify differential treatment, for the purposes of Charter interpretation, of crimes and regulatory offences. This, then, is the basis upon which the present case must be approached.

163 Similarly, in Her Majesty the Queen v 671135 Ontario Ltd[90] Mackinnon J held that the strict liability offences exemplified by s 52(1)(b)[91] of the Competition Act (Can)[92] did not infringe the right to life, liberty and security accorded by s 7 of the Canadian Charter or the right to be presumed innocent conferred by s 11(d) but, if they did, that they were a reasonable limit which was justified in a free and democratic society. Speaking in terms of the proportionality of the restrictions imposed by the sections, his Honour said:

The fairness of the economic system and consumer expectations for fairness and honesty in business and for the elimination of deceit and trickery as commercial practices require that measures of the kind set out in s 52(1)(b) of the Competition Act be taken to regulate competition and prices, provide product choice and protect consumers. The right to freedom of expression does not confer a right to deceive potential customers with impunity, deliberately or blindly. The right to freedom of expression does not confer a right to make untested representations to the public. Advertising plays an important role in Canadian society. When advertising provides information, Canadian consumers must be able to count on the truth of the representation in order to make economic decisions. Parliament has restricted freedom of expression in s 52(1)(b) of the Competition Act only as a collateral effect of its attempt to achieve its goal, namely the protection of the consumer and the promotion of healthy competition amongst businesses that is fair to consumers. The imposition of such a restriction on the freedom of expression is justified in a society that is free and democratic. This restriction is critical in our society, given consumers' vulnerability and the refinement of advertising techniques.

164 Mutatis mutandis, the same applies to such if any restrictions as are imposed on the freedom of speech by s 9 of the FTA. It is also relevant to note, as the Solicitor General submitted, that the European Court of Human Rights and United Kingdom courts have consistently held that the proscription of misleading and deceptive advertising is necessary for the protection of rights of others in a democratic society and therefore sanctioned by Article 10(2) of the Convention.[93]

165 Finally, on this aspect of the matter, it is necessary to add that a question arose before the judge below, which his Honour did not decide, as to whether s 15 of the Charter required s 9 of the FTA to be construed as meaning that conduct was not misleading or deceptive within the meaning of the section unless the contravenor knew or was reckless as to whether the conduct was misleading or deceptive.

166 That question should be answered: No. Canadian authority makes clear that the absence of a mens rea requirement for misleading and deceptive conduct regulatory offences akin to s 9 of the FTA does not offend the Canadian Charter.[94] The same reasoning applies with equal force to s 15 of the Charter. To construe s 9 of the FTA as requiring proof of mens rea to constitute a contravention would run directly counter to the evident purpose of s 9 of reflecting s 52 of the Trade Practices Act 1974 and extending its reach to areas beyond the constitutional competence of the Commonwealth. So to construe the legislation would be to do exactly what it was held in Momcilovic it is not permissible to do.

167 For the reasons given, I would allow the appeal and set aside the judgment below. In lieu thereof, I would give judgment for the appellant and declare that each of impugned statements 1 to 34 was misleading or deceptive or likely to mislead within the meaning of s 9 of the Fair Trading Act 1999. I would further declare that, by making the impugned statements, the respondents in trade and commerce represented that the treatments, services, techniques or procedures offered or provided by the Hope Clinic can cure cancer, or reverse, stop or slow its progress; prolong the life of a person suffering from cancer; benefit cancer sufferers; were or are supported by generally accepted science; were or are supported by published research findings; and were or are evidence based therapies, and that each of those representations was misleading or deceptive or likely to mislead or deceive within the meaning of s 9 of the Fair Trading Act.

[1] Summary of the Proceedings and Issues and Summary of Facts (29 December 2011), para 14.

[3] The reference to sections 2(a) and (b) were erroneous. The Charter has no such provisions. The intended reference was, apparently, to paragraphs 1(2)(a) and (b) of the Charter.

[4] The Attorney-General Jan Wade, Second Reading Speech, Legislative Council 25 March 1999.

[5] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191.

[6] Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82. See also Nettle JA's reasons at [144]-[145].

[7] See esp at [143]-[164].

[8] The written submissions are referred to at trial transcript pp 114 and 269-274.

[9] [2011] HCA 34; (2011) 280 ALR 221.

[10] See [139]-[142] of Nettle JA's judgment.

[11] [2010] VSCA 50.

[20] Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303, 314 (Mason CJ, Wilson, Dawson and Toohey JJ) '[I]t would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment. ... That is not to say, however, that a dissenting judgment may not deserve respectful consideration.' Cf comments made by McHugh J in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [206].

[21] Great Western Railway Co v Owners of the SS Mostyn [1928] AC 57 [73]-[74] (Viscount Haldane); Dickenson's Arcade Pty Ltd v The State of Tasmania and Anor [1974] HCA 9; (1973-4) 130 CLR 177 [188] (Barwick CJ).

[22] Cf Nettle JA's reasons at [142].

[23] [2011] HCA 49.

[24] See Green v The Queen [2011] HCA 49 [83]-[87] (Heydon J) and cases there cited; see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

[25] Section 9 now provides for the application, as the Australian Consumer Law (Victoria), of Schedule 2 to the Competition and Consumer Act 2010 (C'th). Section 18 of Schedule 2 to the Code is in substantially identical form to s 9 of the Act as it is set out above.

[26] Between 1986 and 1996, Noel Campbell claims to have performed charity surgery in the Philippines and China on more than 4,000 children with cleft lips and palates.

[29] Pub Med is a web version of Medline, published by the National Library of Medicine (USA). It comprises over 21 million citations for biomedical literature from Medline, life science journals, and online books.

[30] [2010] VSCA 17; (2010) 26 VR 595, 602 [41].

[31] See Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors (No 2) [2011] VSC 153 ('Noone') [15].

[32] Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1, 4 (Sheppard J), 27 (Foster J).

[33] Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 368 [15] (French CJ); Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; (1984) 2 FCR 82, 87 (Bowen CJ, Lockhart and Fitzgerald JJ).

[34] Ucar v Nylex Industries Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 500 [22]; Towie v Medical Practitioners Board (2008) VSCA 157, [36];

[35] [1981] FCA 224; (1981) 55 FLR 310, 328 (Morling J).

[36] Tobacco Institute (Aust) v AFCO [1992] FCA 630; (1992) 38 FCR 1, 5-6 (Sheppard J).

[39] Cf Tobacco Institute (Aust) v AFCO [1992] FCA 630; (1992) 38 FCR 1, 46 (Hill J);

[41] Cummings v Lewis (1993) 41 FCR 559, 565 (Sheppard and Neaves JJ).

[44] MGICA Ltd (1992) v Kenny & Good Pty Ltd (1996) 140 ALR 313, 356-7 (Lindgren J); aff'd on appeal at (1997) 77 FCR 307.

[45] In support of that proposition, his Honour cited Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49, [41] (Logan J).

[46] Heydon, Cross on Evidence, Aust Ed, [7210].

[47] (1970) 2 NSWR 238, 240.

[49] [1992] FCA 630; (1992) 38 FCR 1, 47.

[51] MGICA Ltd (1992) v Kenny & Good Pty Ltd (1996) 140 ALR 313, 356-7 (Lindgren J); aff'd on appeal at (1997) 77 FCR 307.

[52] See and compare ACCC v Jones [2011] FCA 49, [29] (Logan J).

[53] See [82] and [83] above.

[55] [2011] HCA 34; (2011) 280 ALR 221.

[56] [1998] HCA 28; (1998) 194 CLR 355.

[57] [2011] HCA 34; (2011) 280 ALR 221, 245 [51] (French CJ).

[59] Hansen v R [2007] NZSC 7, [191].

[60] [2011] HCA 34; (2011) 280 ALR 221, [166]-[168] (Gummow J).

[61] Great Western Railway Co v Owners of SS Mostyn [1928] AC 57, 53; Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303, 314.

[62] Green v R [2011] HCA 49; (2011) 283 ALR 1, 23-24 [82]-[87] (Heydon J).

[63] See Duggan, Regulated Credit, The Sale Aspect, (The Law Book Company Ltd 1986) 240 [9.2.11].

[64] [1984] FCA 180; (1984) 2 FCR 82, 86.

[65] Cf Samuels v Readers' Digest Association Pty Ltd [1969] HCA 6; (1969) 120 CLR 1, 14 and 15 (Barwick CJ).

[66] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 542-544, [47]-[50] (French CJ), 554-556 [92]-[99] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[67] Virginia Pharmacy Board v Virginia Consumer Council [1976] USSC 90; 425 US 748, 771-772 and No 24 (1976) Bates v State Bar of Arizona [1977] USSC 167; 433 US 350, 383 (1977); Central Hudson Gas & Electricity Corp v Public Service Commission of New York [1980] USSC 127; 447 US 557, 563, 564, 566, 593 (1980); US v Stevens 559 US 1, 5 (2010).

[68] [2003] UKHL 23; [2004] 1 AC 185.

[69] [2003] UKHL 23; [2004] 1 AC 185, 243 [91]-[92] (in diss, but not on this point of principle).

[71] [2007] EWHC 237; [2008] 1 WLR 276.

[72] [2007] EWHC 237; [2008] 1 WLR 276, 285 [28]-[29].

[73] [2004] UKHL 30; [2004] 2 AC 557, [30]-[33] (Lord Nicholls of Birkenhead).

[74] A Kocourek, Jural Relations 2nd Ed 1928, 67, cited in J Stone, Lawyers and Legal Relations, 148.

[75] By an action for damages and other relief.

[76] Julius Stone, Legal Systems and Lawyers Reasoning, 140-141.

[77] [2011] HCA 4; (2011) 243 CLR 506, 549 [72].

[78] [2007] HCA 33; (2007) 233 CLR 307, 331-333 [20]-[27].

[79] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 199-200 [39].

[80] Ibid 198-199 [36]-[37]. See also In re British Broadcasting Corporation [2009] EWCA Civ 1365; [2010] 1 AC 145, In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697.

[81] [1992] UKHL 6; [1993] AC 534.

[82] Ibid 550-1; see also R v Home Secretary; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 126 (Lord Steyn).

[83] [1976] USSC 90; 425 US 748. (1976)

[84] (1992) 84 DLR (4th) 161.

[87] (1986) 30 CCC (3d) 385, 35 DLR (4th) 1, [1986] 2 SCR 713.

[89] (1989), 58 DLR (4th) 577, 625, 25 CPR (3d) 417, 465, [1989] 1 SCR 927, and in Slaight Communications Inc v Davidson (1989), 59 DLR (4th) 416, 423, [1989] 1 SCR 1038, 26 CCEL 85.

[91] Section 52(1)(b) of the Competition Act provided that:

No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly any business interest, by any means whatever:

(a) ...

(b) make a representation to the public in the form of a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation.

[93] X and Church of Scientology v Sweden (Application No 7805/77, 5 May 1979, [5]; R v Advertising Standards Authority Ltd [2001] EMLR 22, [27] (Turner J); R (on the Application of SmithKline Beecham Plc) v Advertising Standards Authority Ltd [2001] EMLR 23, [32] (Hunt J).

[94] R v Wholesale Travel Group Inc (1984) 84 DLR (4th) 161; R v Ontario Ltd, above.