FEDERAL COURT OF AUSTRALIA
Jones v Australian Competition and Consumer Commission [2010] FCAFC 136
Citation: Jones v Australian Competition and Consumer Commission [2010] FCAFC 136 Appeal from: Australian Competition and Consumer Commission v Jones (No 4) [2010] FCA 909 Parties: DARRYL PETER JONES v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION File number: QUD 338 of 2010 Judges: KEANE CJ, DOWSETT AND REEVES JJ Date of judgment: 19 November 2010 Catchwords: CONTEMPT OF COURT – criminal procedure – where accused found guilty of deliberately breaching an interlocutory order – where witnesses were not called by the accused – where accused sentenced on an incompletely stated charge ‑ whether a Jones v Dunkel inference may be drawn against the accused – whether statement of charge was sufficient to support the sentence Cases cited: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 considered
Doyle v The Commonwealth (1985) 156 CLR 510 cited
Dyers v The Queen (2002) 210 CLR 285 followed
Jones v Dunkel (1959) 101 CLR 298 considered
RPS v The Queen (2000) 199 CLR 620 followed
Witham v Holloway (1995) 183 CLR 525 followedDate of hearing: 3 November 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 46 Counsel for the First Appellant: B Levet Solicitor for the First Appellant: Carroll Fairon Solicitors Counsel for the First Respondent: M Brady Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 338 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DARRYL PETER JONES
AppellantAND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent
JUDGES:
KEANE CJ, DOWSETT AND REEVES JJ
DATE OF ORDER:
19 NOVEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be allowed and the judgment below set aside.
2.The ACCC’s application of 28 May 2010 be remitted for further consideration at first instance.
3.The ACCC pay Mr Jones’ costs of the appeal to this Court.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 338 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DARRYL PETER JONES
AppellantAND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent
JUDGES:
KEANE CJ, DOWSETT AND REEVES JJ
DATE:
19 NOVEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 5 March 2010, the learned primary judge made interlocutory orders which, among other things, restrained Mr Jones from promoting (save subject to stringent conditions) what are alleged by the Australian Competition and Consumer Commission to be quack treatments for cancer and other diseases.
On 17 August this year, the learned primary judge found that Mr Jones had breached these orders in several respects. In consequence, Mr Jones was declared to be guilty of a number of charges of contempt of…
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Details
- Case
- [2010] FCAFC 136
- Decision Date
CaseChat Overview and Summary
In the case of Jones v Australian Competition and Consumer Commission, the respondent, Darryl Jones, was found guilty of contempt of court by the Federal Court of Australia for deliberately breaching an interlocutory order. The dispute arose from orders made on 5 March 2010, which required Jones to obtain written advice from a qualified medical professional before making representations about the prevention or treatment of cancer or any medical condition. The orders also mandated that Jones prominently disclose details of the advice and provide a copy of the advice to the Australian Competition and Consumer Commission (ACCC). Jones did not comply with these orders, leading to the charges of contempt.
The legal issues before the court were whether the charge against Jones was sufficiently stated and whether a Jones v Dunkel inference could be drawn against him for not calling witnesses. The court examined whether the statement of charge was adequate to support the sentence imposed on Jones. The charge specified multiple breaches of the interlocutory orders, detailing the failures to obtain written advice, disclose details of the advice, and provide copies of the advice to the ACCC. The court also considered whether the failure to call witnesses could lead to an adverse inference under the Jones v Dunkel principle.
The court held that the statement of charge was sufficient to support the sentence, as it clearly outlined the breaches of the interlocutory orders. The court noted that while Jones was entitled to call witnesses, his decision not to do so did not necessarily mean he had nothing to say in his defence. Therefore, the court was not compelled to draw an adverse inference against Jones for not calling witnesses. The appeal was allowed, and the judgment was set aside, with the ACCC's application remitted for further consideration at first instance. Additionally, the ACCC was ordered to pay Jones’ costs of the appeal.
The legal issues before the court were whether the charge against Jones was sufficiently stated and whether a Jones v Dunkel inference could be drawn against him for not calling witnesses. The court examined whether the statement of charge was adequate to support the sentence imposed on Jones. The charge specified multiple breaches of the interlocutory orders, detailing the failures to obtain written advice, disclose details of the advice, and provide copies of the advice to the ACCC. The court also considered whether the failure to call witnesses could lead to an adverse inference under the Jones v Dunkel principle.
The court held that the statement of charge was sufficient to support the sentence, as it clearly outlined the breaches of the interlocutory orders. The court noted that while Jones was entitled to call witnesses, his decision not to do so did not necessarily mean he had nothing to say in his defence. Therefore, the court was not compelled to draw an adverse inference against Jones for not calling witnesses. The appeal was allowed, and the judgment was set aside, with the ACCC's application remitted for further consideration at first instance. Additionally, the ACCC was ordered to pay Jones’ costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed and the judgment below set aside.
2. The ACCC’s application of 28 May 2010 be remitted for further consideration at first instance.
3. The ACCC pay Mr Jones’ costs of the appeal to this Court.
Note:
Background
Background to the litigation
We propose to set out in detail the circumstances which led to the convictions for contempt and his Honour’s reasons in that regard. We will then address the arguments which were agitated in relation to Mr Jones’ grounds of appeal.BACKGROUND The orders of 5 March 2010 (in which Mr Jones is referred to as “the respondent”) were in the following terms: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; and1.3.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 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. and2.2.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; and2.7.not require a further selection of hyperlinks or scrolling on the screen to be seen.3.An order that, within 14 days of making this order, the respondent shall provide the applicant with a list of all persons who, in the last 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; or3.2.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”; or3.2.3.any other document containing representations to the effect that there are:3.2.3.1reasonable grounds; and3.2.3.2.a reliable and current scientific or medical basis;to represent that:3.2.3.3.the reduction or elimination of glucose from the diet; or3.2.3.4taking laetrile, also known as amygdalin, also referred to as “vitamin B17”;are treatments that:3.5.3.5are effective in the treatment or prevention of cancer;3.2.3.6have been proven to bring even the worst cancers under control; or3.2.3.7together 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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Mr Jones gave evidence at the hearing of the charges. The effect of that evidence is sufficiently stated in the reasons of the primary judge to which we now turn.THE DECISION OF THE PRIMARY JUDGE The declarations made by the primary judge were in the following terms:The Respondent is guilty of contempt of this Court in that in breach of the orders made on 5 March 2010 (as modified on 14 April 2010) by Justice Logan (Interlocutory Orders), the Respondent engaged in the conduct set out below:1 In respect of Darryl Jones Health Resolution Centre website:1.1The Respondent did not, before making the representations referred to in paragraph 9 of the Statement of Charge filed on 28 May 2010 (Statement of Charge), obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.1.2The Respondent did not, at the time of making the representations referred to in paragraph 9 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders.1.3The Respondent did not, within 7 days of making the representations referred to in paragraph 9 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.1.4The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof.1.5From at least 12 May 2010 and until 14 May 2010, the Respondent did not take all reasonable steps to ensure that a notice as required by paragraph 2 of the Interlocutory Orders:1.5.1was clearly viewable immediately on screen after the home page was accessed; and1.5.2did not require a further selection of hyperlinks or scrolling on the screen to be seen; on the website at respect of the electronic book entitled “The Truth About Overcoming Cancer” (the e‑book):2.1The Respondent did not, before making the representations in the e-book, referred to in paragraph 16 of the Statement of Charge, obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.2.2The Respondent did not, at the time of making the representations in the e‑book, referred to in paragraph 16 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders.2.3The Respondent did not, within 7 days of making the representations in the e‑book, referred to in paragraph 16 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.2.4 The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof.3 In respect of the Fellowship of Faith, Hope and Healing Website:3.1The Respondent did not, before making the representations referred to in paragraph 21 of the Statement of Charge, obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.3.2The Respondent did not, at the time of making the representations referred to in paragraph 21 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders.3.3The Respondent did not, within 7 days of making the representations referred to in paragraph 21 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.3.4The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof.4 In respect of the list of clients:4.1The Respondent did not provide the applicant with the list as required by paragraph 3 of the Interlocutory Orders and by the time extended by paragraph 1 of the 14 April 2010 orders.4.2The Respondent has not provided the applicant with the list required by paragraph 3 of the orders as at the date hereof.
Ratio Decidendi
Legal Principle Established
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