Australian Competition and Consumer Commission v Jones - [2010] FCA 205

FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Jones [2010] FCA 205

Citation: Australian Competition & Consumer Commission v Jones [2010] FCA 205

Parties: AUSTRALIAN COMPETITION & CONSUMER COMMISSION v DARRYL PETER JONES

File number: QUD 54 of 2010

Judge: LOGAN J

Date of judgment: 5 March 2010

Corrigendum: 15 March 2010

Catchwords: PRACTICE AND PROCEDURE - Interlocutory Injunction - Misleading or Deceptive Conduct - Trade Practices Act 1974 (Cth), s 52 - whether interim disclosure order can be authorised by Trade Practices Act 1974 (Cth), s 86C(2) - held s 86C(2) is not the source of such a power - held interim disclosure order can be authorised by s 80(2) Trade Practices Act 1974 (Cth) the Federal Court's general powers under the Federal Court of Australia Act 1976 (Cth) where the Federal Court has jurisdiction

Legislation: Federal Court of Australia Act 1976 (Cth)
Trade Practices Act 1974 (Cth) ss 80, 86C

Date of hearing: 5 March 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Mr MT Brady

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: The Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 54 of 2010

BETWEEN:
AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant

AND:
DARRYL PETER JONES
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

5 MARCH 2010

WHERE MADE:

BRISBANE

CORRIGENDUM
1.On page 6 of the Reasons for Judgment at paragraph 13, it should read “at first blush, unnecessarily restrictive” instead of “at first flush, unnecessarily restrictive”.
2.On page 6 of the Reasons for Judgment at paragraph 14, it should read “the Commission, a requirement” instead of “the Commission a requirement”.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan.
Associate:
Dated: 15 March 2010

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 54 of 2010

BETWEEN:
AUSTRALIAN COMPETITION & CONSUMER COMMISSION
Applicant

AND:
DARRYL PETER JONES
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

5 MARCH 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Respondent be restrained, until further order, whether by himself or his servants or agents or otherwise howsoever, in trade or commerce, from making any representation to the effect that the occurrence or growth of cancer or any medical condition can be prevented or successfully treated by any means whatsoever unless the Respondent:
1.1first has obtained:
1.1.1from a person then registered with a medical practitioners board to practise medicine in Australia; or
1.1.2from a professor, associate professor, reader, senior lecturer or lecturer then teaching or researching in medicine at an Australian university;

written advice certifying that the proposed treatment is in the opinion of that person supported by reliable scientific evidence or expert medical opinion and is believed to be effective and safe;
1.2at the time of making the representation, prominently discloses details of the said advice, including the name, qualifications…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 205
Decision Date: 5 March 2010

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) filed a complaint against Darryl Jones, seeking injunctive relief against misleading or deceptive conduct in relation to cancer treatment claims. The Federal Court of Australia heard the application under the Trade Practices Act 1974 (Cth). The central legal issue was whether the court could authorise an interim disclosure order to compel the respondent to disclose information about his business operations and clients, and if so, what statutory provision supported such authority. The ACCC argued that the Trade Practices Act 1974 (Cth) section 86C(2) empowered the court to grant such an order, while Jones contended that this section did not provide the requisite authority. The court held that section 86C(2) was not the source of the power to grant an interim disclosure order. Instead, the court found that such power could be derived from section 80(2) of the Trade Practices Act 1974 (Cth), in conjunction with the Federal Court of Australia Act 1976 (Cth) where the Federal Court has jurisdiction. This interpretation allowed the court to exercise its general powers to issue an interim disclosure order. The court found in favour of the ACCC and granted the relief sought, including an injunction against making certain representations about cancer treatment, a requirement for the respondent to obtain written advice from a medical professional before making such claims, and orders for disclosure of client information and publication of notices on the respondent's websites. The court also set timelines for the filing of the statement of claim and defence, and scheduled a further directions hearing.

Orders

Orders of the court

1. The Respondent be restrained, until further order, whether by himself or his servants or agents or otherwise howsoever, in trade or commerce, from making any representation to the effect that the occurrence or growth of cancer or any medical condition can be prevented or successfully treated by any means whatsoever unless the Respondent:

1.1 first has obtained:

1.1.1 from a person then registered with a medical practitioners board to practise medicine in Australia; or

1.1.2 from a professor, associate professor, reader, senior lecturer or lecturer then teaching or researching in medicine at an Australian university;

written advice certifying that the proposed treatment is in the opinion of that person supported by reliable scientific evidence or expert medical opinion and is believed to be effective and safe;

1.2 at the time of making the representation, prominently discloses details of the said advice, including the name, qualifications and position of the person providing the said advice; and

1.3 retains a copy of the said advice and provides a copy of the same to the applicant within 7 days of a him receiving the certificate.

2. The Respondent, at his own expense, shall, within seven (7) days of this order, cause a notice in the form of Schedule A attached hereto to be published and to remain continuously in place, until further order, on the home page of the following websites:

2.1 www.darryljoneshealth.com.au; and

2.2 any other website controlled, owned, operated or maintained by the respondent that, at the date of this application, offers or promotes goods or services associated with the treatment or prevention of cancer or any other medical condition whatsoever;

and shall take all reasonable steps to ensure that such notice shall:

2.3 be a size that consists of at least 40% of the screen area;

2.4 be clearly viewable immediately on screen after the web page is accessed;

2.5 not be blocked by a pop up blocker;

2.6 remain on screen until closed by the person accessing that website; and

2.7 not require a further selection of hyperlinks or scrolling on the screen to be seen.

3. An order that, within fourteen (14) days of making this order, the respondent shall provide the Applicant with a list of all persons who, in the last twelve (12) months preceding this order:

3.1 have made an agreement with, or payment to, the respondent or to another person with the knowledge and consent of the respondent, to be supplied with goods or services associated with the treatment or prevention of cancer; or

3.2 were supplied or provided by the respondent, or by another person with the knowledge and consent of the respondent, with copies of the following documents:

3.2.1 the document entitled "The Truth About Overcoming Cancer";

3.2.2 the document entitled "An Entirely Different Approach to Cancer"; or

3.2.3 any other document containing representations to the effect that there are:

(a) reasonable grounds; and

(b) a reliable and current scientific or medical basis;

to represent that:

(d) taking laetrile, also known as amygdaline, also referred to as "vitamin B17";

are treatments that:

(e) are effective in the treatment or prevention of cancer;

(f) have been proven to bring even the worst cancers under control; or

(g) together with an exercise program recommended by him, are preferable to treating cancer by pharmaceutical drugs, radium therapy, surgery or chemotherapy.

4. An order that the list to be provided in accordance with order 3 shall also contain the last known address, including electronic address, and telephone number, if known to the Respondent, of each listed person together with the amount each such person paid.

5. An order that the Respondent shall provide to each person in the said list, at the last known address supplied for each such person, a copy of:

5.1 the notice in Schedule A attached hereto; and

5.2 these orders;

within fourteen (14) days of this order.

6. Costs be reserved.

THE COURT DIRECTS THAT:

7. The Applicant file and serve its statement of claim on or before 19 March 2010.

8. The Respondent file and serve its defence on or before 9 April 2010.

9. The matter be listed for further directions at 9.30 am on 16 April 2010.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:		Australian Competition & Consumer Commission v Jones [2010] FCA 205
Parties:		AUSTRALIAN COMPETITION & CONSUMER COMMISSION v DARRYL PETER JONES
File number:		QUD 54 of 2010
Judge:		LOGAN J
Date of judgment:		5 March 2010
Corrigendum:		15 March 2010
Catchwords:		PRACTICE AND PROCEDURE - Interlocutory Injunction - Misleading or Deceptive Conduct - Trade Practices Act 1974 (Cth), s 52 - whether interim disclosure order can be authorised by Trade Practices Act 1974 (Cth), s 86C(2) - held s 86C(2) is not the source of such a power - held interim disclosure order can be authorised by s 80(2) Trade Practices Act 1974 (Cth) the Federal Court's general powers under the Federal Court of Australia Act 1976 (Cth) where the Federal Court has jurisdiction
Legislation:		Federal Court of Australia Act 1976 (Cth) Trade Practices Act 1974 (Cth) ss 80, 86C
Date of hearing:	5 March 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicant:	Mr MT Brady
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Respondent:	The Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 54 of 2010

BETWEEN:	AUSTRALIAN COMPETITION & CONSUMER COMMISSION Applicant
AND:	DARRYL PETER JONES Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	5 MARCH 2010
WHERE MADE:	BRISBANE