Noone (Director of Consumer Affairs Victoria) v Operation Smile (Australia) Inc

CJ, Nettle JA and Cavanough AJA7, 8 February, 11 May 2012[2012] VSCA 91Trade practices — Misleading or deceptive conduct — Representations — Promotion of complementary medical treatments — Cancer — Efficacy of treatments — Scientific basis — Context — Falsity — Opinion lacking reasonable basis — Fair Trading Act 1999 (No 16)s 9..Human rights — Charter of Human Rights — Interpretation — Freedom of expression — Compatibility — Prohibition on misleading or deceptive conduct in trade and commerce — No mens rea requirement — Purpose of statutory provision — Consumer protection — Charter of Human Rights and Responsibilities Act 2006 (No 43)ss 15, 32..Precedent — Court of Appeal — Previous decision — Subsequent decision of High Court — Majority but non-binding contrary view by High Court — Whether previous Court of Appeal decision binding.

The respondents published statements on a site on the World Wide Web and in printed material promoting their complementary medicine clinic which specialised in the treatment of cancer. The statements represented that the treatments, services, techniques and procedures offered or provided by the respondents could cure or reverse, stop or slow the progress of cancer and prolong the life of or benefit cancer sufferers, and that the statements were supported by generally accepted science or published research findings or related to evidence-based therapies. A report prepared by the Health Services Commission, Victoria, concluded that the respondents’ treatments were of no benefit or their efficacy was unproven. The respondents honestly believed the statements were true and justified by certain published literature.

The Director of Consumer Affairs applied for declarations that the respondents had engaged in misleading or deceptive conduct in trade or commerce in contravention of s 9 of the Fair Trading Act 1999 (“the FTA”). The respondents denied liability and contended that to construe s 9 of the FTA as a strict liability provision without including a mens rea element would be incompatible with the right to freedom of expression protected by s 15 of the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”).

Pagone J found that the statements made by the respondents were not supported by conventional science, but none the less in context were not misleading or deceptive, and did not deal with the contention concerning s 15 of the Charter. The director appealed.

Held, allowing the appeal: (1) It would defeat the clear purpose of s 9 of the FTA to incorporate a mens rea requirement into it, and, accordingly, s 32 of the Charter did not require a different construction in order to be compatible with s 15 of the Charter. [20], [164], [166].

Per Warren CJ and Cavanough AJA. It was not appropriate to decide more broadly, in the absence of argument, whether the settled interpretation of s 9 of the FTA was incompatible with human rights. [21]–[24].

Per Warren CJ and Cavanough AJA. It was unnecessary to decide whether the Court of Appeal was bound to follow its own decision in R v Momcilovic(2010) 25 VR 436 that

38 VR 570

s 7(2) of the Charter played no role in the interpretative task under s 32, in circumstances where a majority but non-binding contrary view had been expressed in the High Court of Australia. [26]–[31].

Momcilovic v R(2011) 245 CLR 1 referred to.

Per Nettle JA. It was appropriate for the Court of Appeal to adhere to its own decision in R v Momcilovic(2010) 25 VR 436 until and unless the High Court determined that it was incorrect. [142].

Per Nettle JA. The proscription of misleading or deceptive conduct in s 9 of the FTA was a restriction reasonably necessary to respect the rights of other persons for the purpose of s 15(3) of the Charter. [148], [164].

(2) The alleged representations were or were likely to be conveyed to a reader of the impugned statements, when read in the context of the whole of the relevant website, in the milieu in which it was published, and in view of the audience to whom it was directed. [33], [134].

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

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) 2 FCR 82 referred to.

(4) Each of the impugned statements was misleading or deceptive. It was necessary to review the statements in context. They impliedly asserted that they were based on fact, which was false. It was necessary not to find one correct construct, but to ask whether there was a real and not remote possibility that readers would take the statement to have a meaning according to the alleged representations. [61], [64]–[66], [69]–[72], [75]–[78], [85], [90], [92]–[96], [100], [109], [113], [116], [119], [121]–[132].

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc(1992) 38 FCR 1; MGICA Ltd (1992) v Kenny & Good Pty Ltd(1996) 140 ALR 313 applied.

(5) The statements which were statements of opinion lacked reasonable basis because the materials were shown to lack scientific rigour or persuasion. [33], [78], [83], [91], [101], [113].

Decision of Pagone J [2011] VSC 153 reversed.

Appeal

This was an appeal against a decision of Pagone J dismissing an application by the Director of Consumer Affairs for declarations that the respondents had engaged in misleading or deceptive conduct in trade or commerce in contravention of s 9 of the Fair Trading Act 1999. The facts are stated in the judgment of Nettle JA.

38 VR 571 The respondents appeared in person.M J Colbran QC and S Bhojani for the appellant.S G E McLeish SC, S-G and J Davidson for the intervener.Cur adv vult.Warren CJ and Cavanough AJA.1This is an appeal from a decision of a judge of the Trial Division dismissing the appellant’s claim against the respondents.2The 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, listed and described the treatments offered at the Hope Clinic and contained statements relating, inter alia, to the efficacy of these treatments.3The 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.4A question also arose about the effect of the Charter of Human Rights and Responsibilities (“the Charter”) on s 9(1) of the Act.5The 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.6By 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.7For the reasons that follow, we would allow the appeal.The interpretation and application of the Charter8The 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”). 1

Summary of the proceedings and issues and summary of facts (29 December 2011), para 14.

38 VR 572 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.9PILCH 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.10In 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:

a)
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?
b)
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 s 15 of the Charter and as promoted and protected by the Charter (sections 2(a) and (b) and section 6(2)(b))?3

11PILCH 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.12For 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.13Beyond 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 element14Section 32 of the Charter provides:

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.

Ibid, paras 16–22.

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

38 VR 573

(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.

15At 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 with human rights if it was construed as including a mens rea element. It is unnecessary to determine whether these submissions are correct.16It 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 subsection.17Section 9(1) provides:

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.

18The 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”.419In 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.620It 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. 4

Second reading speech, Hansard, Legislative Assembly, 25 March 1999, p 187 (the Hon Jan Wade, Attorney-General).

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

Global Sportsman Pty Ltd v Mirror Newspapers Ltd(1984) 2 FCR 82. See also Nettle JA’s reasons at [144]–[145].

38 VR 574 Other Charter issues21The 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.22The 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. Nettle J 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.
…

23No 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 7

See especially at [143]–[164].

The written submissions are referred to at trial transcript pp 114 and 269–74.

38 VR 575 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.24For 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 R9 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.25Section 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.

…

26Section 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 to make a declaration of inconsistent interpretation under s 36.27On appeal, the same question was considered by the High Court in Momcilovic v R. We note:

(a)
French CJ 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)
Crennan and Kiefel JJ 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

(2011) 245 CLR 1.

See [139]–[142] of Nettle JA’s judgment.

(2010) 25 VR 436.

(2011) 245 CLR 1, at 44, [35]–[36].

At 220, [575].

38 VR 576

(b)
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)
Gummow J 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)
Hayne J agreed with Gummow J on this issue.17
(e)
Heydon J 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)
Bell J 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

28Hence, 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. Hayne J would have allowed the appeal and quashed the presentment. Heydon J would have dismissed the appeal. Notably, Heydon J was the only member of the court to find s 32 of the Charter invalid.29It seems to follow that the dissenting judgments of Hayne and Heydon JJ could not form part of the ratio of Momcilovic20 and hence there is no ratio on this point in the High Court.2130There 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 R,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 R did not consider whether this principle applies where there is a 14

At 219, [574].

At 92, [168].

At 91, [165].

At 123, [280].

At 164, [409].

At 249, [681].

Federation Insurance Ltd v Wasson(1987) 163 CLR 303, at 314 per 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.” Compare comments made by McHugh J in Jones v Bartlett(2000) 205 CLR 166at 224–5, [206].

Great Western Railway Co v Owners of the SS Mostyn[1928] AC 57 at 73–4 per Viscount Haldane; Dickenson’s Arcade Pty Ltd v Tasmania(1974) 130 CLR 177 at 188 per Barwick CJ.

Compare Nettle JA’s reasons at 475, [142].

(2011) 244 CLR 462.

See Green v R(2011) 244 CLR 462at 490–1, [83]–[87] per Heydon J and cases there cited; see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89, at 151, [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

38 VR 577 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.31It is unnecessary to decide the issue in this case so we leave the question open.The factual issues32As 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.33We 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.Disposition of the appeal34For the reasons given, we would allow the appeal. We agree with the orders proposed by Nettle JA.Nettle JA.35This 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 (“FTA”).36At 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).

The respondents37The 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 (Cth) and Mr Campbell has been its sole director since 1 July 2007. The third respondent (Hope Research) was incorporated under the Corporations Act 2001 (Cth) and Mr Campbell has been its sole director since 7 July 2005. He is also the sole shareholder of Operation Hope and Hope Research.38Although 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 25

Section 9 now provides for the application, as the Australian Consumer Law (Victoria), of Sch 2 to the Competition and Consumer Act 2010 (Cth). Section 18 of Sch 2 to the Code is in substantially identical form to s 9 of the Act as it is set out above.

38 VR 578 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:31

[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.

…

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.

39In fact, the evidence did not go quite so far. It consisted of a report of the 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 in China in recognition of his charity work.27 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.

The facts40The 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 31

Noone, Director of Consumer Affairs Victoria v Operation Smile (Aust) Inc (No 2)[2011] VSC 153 (“Noone”) at [9], , [54].

Between 1986 and 1996, Noel Campbell claims to have performed charity surgery in the Philippines and China on more than 4000 children with cleft lips and palates.

38 VR 579 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.

41HSCV 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.

42On 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.43To 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 of which the registrant was Operation Smile and the contact for email address was [email protected]. The website’s home page 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:28

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 ofcancer 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.

Emphasis added.

38 VR 580

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.

Cancers 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 [be] 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 website is for those who seek information aboutcomplementary alternative medical therapies (CAM)and access toeconomic integrated cancer treatment,which combines Western Medicine with Complementary and Alternative therapies.

38 VR 581

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 [sic] 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 manycomplementary cancer therapieswhich 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.

44There 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

38 VR 582

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.

45The home page 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”; “Holt radiowave & microwave therapy”; “Oxygen therapies”; “Electrotherapy”; “Neuro-Immunology”; “Insulin potentiation therapy”; “Autologous Vaccine”; “new Sonodynamic Therapy”; and, on further links, “Ketogenic diet” and “High dose intravenous Vitamin C”.46The web page extolled the supposed benefits of the Hope Clinic’s “Russian Photo Dynamic Therapy technique” for reducing prostate-specific antigen (“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”.47It 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:29

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$3000 (inc GST) … Three week course of treatment … AUD$3000 (inc GST) …

Per week.

38 VR 583 48On 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;
- (iii)
  are supported by generally accepted science;
- (iv)
  are supported by evidence-based findings; and
(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;
- (iii)
  are supported by generally accepted science;
- (iv)
  are supported by evidence-based findings; and
(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.

49Mr 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 of Operation Hope (Aust). 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.50The 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 2010.51Mr 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 PubMed.30

The form of the proceeding below52This 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 website 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;

PubMed 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.

38 VR 584

c)
can benefit cancer sufferers;
d)
were or are supported by generally accepted science;
e)
were or are supported by published research findings;
f)
were or are evidence based therapies.

53Mr 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.3154The 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 the “Hope Clinic” and representations specific to the therapies offered by the Hope Clinic. Those submissions set out the impugned representations in a table.32The judgment below55The 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.First impugned statement56The first impugned statement was that:

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

57The 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:33

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

(2010) 26 VR 595, at 602, [41].

See Nooneat [15].

At [41].

38 VR 585

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.

58With 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.59To 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.34 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 electrotherapy”; 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 optimise a patient’s treatment plan; and the surely very remarkable claim that:

60A 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%, of the statement leading into error the readers at whom it is directed.35 Given that the website 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. 34

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc(1992) 38 FCR 1, at 4 per Sheppard J, 27 per Foster J.

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

38 VR 586 61It 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 this was so, the judge should have held that the 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,36 his Honour thereby deprived himself of the benefit of the submissions on the point with which we have been favoured.The second impugned statement62The second impugned statement was that:

63The 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:37

… 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 Ltd38 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

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

Nooneat [43]–[44].

(1981) 55 FLR 310, at 328 per Morling J.

38 VR 587

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.

64With 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.39 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.65Moreover, 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.66I 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 third impugned statement67The third impugned statement was:

The techniques we use include state-of-the-art medical technology40 and subtle energy therapies such as homeopathy and acupuncture.

68The judge said about that:41

… the basis of the allegation of falsity and misleading was the implication said to be in the statement that the treatments offered were “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

Tobacco Institute (Aust) v AFCO(1992) 38 FCR 1, at 5–6 per Sheppard J.

Emphasis added.

Nooneat [46] (citation omitted).

38 VR 588

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.

69I 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%, that readers of the website would take “state-of-the-art medical technology” to mean state-of-the-art from the point of view of conventional medicine.70For 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:

That was followed a little later by the further statement:

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

71Seen 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”.72It 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. 38 VR 589 The fourth impugned statement73The fourth impugned statement was that:

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

74The 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:42

… 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.

75In my view, that conclusion should also be rejected, for several reasons. First, the point for present purposes was not whether readers of the website 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.76Secondly, 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.43 The possibility of it being so construed was strengthened by the further statement immediately following the impugned statement, that:44

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

77Given 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.78Thirdly, if the impugned statement were not seen as one of existing fact but rather only of opinion, it was none the less 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 42

At [48].

Compare Tobacco Institute (Aust) v AFCO(1992) 38 FCR 1, at 46 per Hill J.

Emphasis added.

38 VR 590 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 PubMed 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,45 it is apparent that the PubMed material did not amount to reasonable grounds on which to base an opinion that the Hope Clinic treatments offered the best treatment option.The fifth impugned statement79The fifth impugned statement was the statement already referred to that:46

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

80The judge rejected the director’s contention that the statement was misleading or deceptive or likely to mislead or deceive, on the basis that:47

… 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.48

81In 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. 45

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

Emphasis added.

Nooneat [52].

Citations omitted.

38 VR 591 82Alternatively, if the fifth impugned statement were properly to be seen as one of opinion only, it was none the less 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.4983As 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:50

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 …

MGICA Ltd (1992) v Kenny & Good Pty Ltd(1996) 140 ALR 313, at 356–7 per Lindgren J; affirmed on appeal at (1997) 77 FCR 307.

Nooneat [50]–[51].

38 VR 592 84The 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:51

… 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.

85With 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.5286Contrary 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:53

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 (Aust) Ltd v Bes:54

“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

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

Heydon, Cross on Evidence, Aust ed, [7210].

[2011] FCA 49, at [40]–[41].

[1970] 2 NSWR 238, at 240.

38 VR 593

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.

The sixth impugned statement87The sixth impugned statement was that:

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

88The judge rejected the director’s contention that the statement was misleading or deceptive. His Honour reasoned that:55

… 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.

89I disagree. In context, the impugned statement appeared as follows:56

“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.”

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

Nooneat [57].

Emphasis added.

38 VR 594 90Read 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.91Alternatively, if the statement were to be read as a statement of opinion only, it was none the less 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.92Finally, 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 deceive 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 (Aust) Ltd v Australian Federation of Consumer Organisations Inc,57 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.The seventh impugned statement93The seventh impugned statement, which was located on the link entitled “Objectives of integrated complementary therapy” on the website captured on 12 February 2010, was:

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)”.74 Heydon J concluded that s 32(1) and s 7(2) of the Charter were invalid.

142There 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.75 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.76143Section 15 of the Charter provides that:

15
Freedom of expression
- (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

At 44, [35]–[36] per French CJ.

Hansen v R[2007] 3 NZLR 1, at 65, [191].

(2011) 245 CLR 1, at 91–2, [166]–[168] per Gummow J.

Great Western Railway Co v Owners of SS Mostyn[1928] AC 57, at 63; Federation Insurance Ltd v Wasson(1987) 163 CLR 303, at 314.

Green v R(2011) 244 CLR 462, at 490–1, [82]–[87] per Heydon J.

38 VR 610

- - (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.

144Apart 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 Pt V, Div 1 and Pt VI of the Trade Practices Act 1974 (Cth), 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 Trade Practices Act provided to aspects of trade and commerce to which the Commonwealth legislation could not reach.77 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.145As the Federal Court held in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd:78

…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.79 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 …

146Similar reasoning led the High Court to conclude that the implied constitutional right of political communication is subject to legitimate restrictions;80 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.81 77

See Duggan, Regulated Credit, The Sale Aspect, (1986), p 240 [9.2.11].

(1984) 2 FCR 82, at 86.

Compare Samuels v Readers’ Digest Association Pty Ltd(1969) 120 CLR 1, at 14 and 15 per Barwick CJ.

Hogan v Hinch(2011) 243 CLR 506, at 542–4, [47]–[50] per French CJ, at 554–6, [92]–[99] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Virginia Pharmacy Board v Virginia Consumer Council 425 US 748, 771–2 and No 24 (1976); Bates v State Bar of Arizona 433 US 350, 383 (1977); Central Hudson Gas & Electricity Corp v Public Service Commission of New York 447 US 557, 563, 564, 566, 593 (1980); US v Stevens 559 US 1, 5 (2010).

38 VR 611 147Nor 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 Pt 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.148If 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.149Section 15 of the Charter is couched in terms similar to Art 10 of Sch 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.

150Article 10 of the Convention fell for consideration by the House of Lords in R (ProLife Alliance) v British Broadcasting Corporation.82 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 Art 10(2) of the Convention. Relevantly, for present purposes, Lord Scott of Foscote said that:83

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,

[2004] 1 AC 185.

At 243, [91]–[92] (in dissent, but not on this point of principle).

38 VR 612

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?

151To similar effect, Lord Walker of Gestingthorpe observed:84

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.

152More recently, a similar issue arose for consideration in Connolly v Director of Public Prosecutions.85 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 Art 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:86

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

At 252, [123].

[2008] 1 WLR 276.

At 285–6, [28]–[29].

38 VR 613

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.

153The Divisional Court in Connolly was of course bound by the decision of the House of Lords in Ghaidan v Godin-Mendoza,87 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 Art 10(1) subject to Art 10(2). As such, with respect, it is of assistance in the construction of s 15(1) of the Charter.154In 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,88 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 capable89 of protection by law.90 And, as has been seen, Art 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.155Approaching s 15(3) in accordance with the canons of statutory construction dictated by Project Blue Sky thus implies that “rights” include the de facto interest or claim of a member of society not to be misled or deceived in trade or commerce.156As 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 Hinch91 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:92

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.93 In an earlier decision, his Honour had pointed out that “necessary” does not always mean “essential” or

[2004] 2 AC 557, at 571–2, [30]–[33] per Lord Nicholls of Birkenhead.

Kocourek, Jural Relations, 2nd ed, (1928), p 67, cited in Julius Stone, Lawyers and Legal Relations, p 148.

By an action for damages and other relief.

Julius Stone, Legal Systems and Lawyers Reasoning, pp 140–1.

(2011) 243 CLR 506, at 549, [72].

At 549, [72]. See also Re British Broadcasting Corporation[2010] 1 AC 145; Re Guardian News and Media Ltd[2010] 2 AC 697.

(2007) 233 CLR 307, at 331–3, [20]–[27].

38 VR 614

“unavoidable”.94 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.

157Similarly, with respect to Art 10(2) of the Convention, Lord Keith of Kinkel, speaking for a unanimous House of Lords in Derbyshire County Council v Times Newspapers Ltd,95 said:96

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.

158The 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.159That view also derives support from the observation of the United States Supreme Court in Virginia Pharmacy Board v Virginia Consumer Council97 that misleading and deceptive conduct in commerce is within the “fraud exception” to the right of free speech.160The decision of the Canadian Supreme Court in R v Wholesale Travel Group Inc98 upholding the validity of s 36 of the Competition Act99 adds further support for that conclusion. So far as is relevant, s 36 of the Canadian Competition Act provided that:

36. (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.

161Section 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;

Mulholland v Australian Electoral Commission(2004) 220 CLR 181, at 199–200, [39].

[1993] AC 534.

At 550–1; see also R v Home Secretary; Ex parte Simms[2000] 2 AC 115, at 126 per Lord Steyn.

425 US 748 (1976).

(1991) 84 DLR (4th) 161, [1991] 3 SCR 154.

RSC 1970.

38 VR 615

- (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.

162The 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:100

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 CJC for the majority in R v Edwards Books & Art Ltd).101 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.102”

The same principle has been repeated and emphasized in Irwin Toy Ltd v Québec (Attorney General).103 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.

100

(1991) 84 DLR (4th) 161, at 216[1991] 3 SCR 154.

101

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

102

At CCC 443, DLR 49.

103

(1989) 58 DLR (4th) 577, at 62525 CPR (3d) 417, at 465[1989] 1 SCR 927, and in Slaight Communications Inc v Davidson(1989) 59 DLR (4th) 416, at 423[1989] 1 SCR 1038, 26 CCEL 85.

38 VR 616 163Similarly, in Her Majesty R v 671135 Ontario Ltd,104 Mackinnon J held that the strict liability offences exemplified by s 52(1)(b)105 of the Competition Act (Can)106 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.

164Mutatis 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 Art 10(2) of the Convention.107165Finally, 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. 104

Unreported, 29 March 1994.

105

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.”

106

RSC 1985 c C-34.

107

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

38 VR 617 166That 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.108 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 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.Conclusion and orders167For 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.Appeal allowed.Solicitor for the appellant: Solicitor to the Director of Consumer Affairs Victoria.Solicitor for the intervener: Peter Stewart, Victorian Government Solicitor.C M ARCHIBALDBARRISTER-AT-LAW108

R v Wholesale Travel Group Inc (1984) 84 DLR (4th) 161; R v Ontario Ltd (unreported, 29 March 1994).

[2012] VSCA 91

11/05/2012