Noone v Operation Smile (Australia) Inc (No 2)
[2011] VSC 153
•19 April 2011
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 2534 of 2010
| DR CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA | Plaintiff |
| and | |
| OPERATION SMILE (AUSTRALIA) INCORPORATED and others (according to the schedule attached) | Defendants |
| and | |
| ATTORNEY GENERAL FOR THE STATE OF VICTORIA | Intervener |
| and | |
| PUBLIC INTEREST LAW CLEARING HOUSE | Amicus Curiae |
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JUDGE: | Pagone J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 23 September 2010 and 14 February 2011 | |
DATE OF JUDGMENT: | 19 April 2011 | |
CASE MAY BE CITED AS: | Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 153 | |
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TRADE PRACTICES – Fair Trading Act 1999 (Vic) s 9 – Misleading or deceptive conduct – Promotion of non conventional treatments – Freedom to hold and express an opinion which may be wrong – Whether statements false or misleading depends upon analysis of text in context in which it appears – Lack of utility in granting declaratory relief where misleading statement no longer being used.
HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15 – Charter issue raised in trial by the Court.
PARTIES – Self-represented litigant – Court’s duty to ascertain the rights of the parties – Legal practitioners’ duty to assist the court in the discharge of its functions.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Colbran QC with Mr S Bhojani | Solicitor to the Director of Consumer Affairs Victoria |
| Professor Campbell, the Fourthnamed Defendant, appeared in person on behalf of all the Defendants | ||
| For the Intervener | Mr S McLeish SC with Ms J Davidson | Victorian Government Solicitors Office |
| For the Amicus Curiae | Ms A Richards QC with Ms M Szydzik | Public Interest Law Clearing House |
HIS HONOUR:
Dr Claire Noone, Director of Consumer Affairs Victoria, seeks orders against the defendants that they have, by their conduct in publishing statements on their website and in printed materials, contravened s 9 of the Fair Trading Act 1999 (Vic). The proceeding was commenced by originating motion and came on for hearing without the benefit of pleadings. Affidavits were filed and oral testimony was given based upon the dispute as raised in the originating motion and the affidavits filed on behalf of the Director. Lengthy submissions were also filed by the parties from which the various issues emerged with varying degrees of precision. The defendants were not legally represented. The fourth defendant, Professor Noel Campbell, appeared on his own behalf and on behalf of the other defendants. The Attorney General for the State of Victoria intervened to make submissions in relation to the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”). An amicus curiae was given leave to make submissions on the operation of the Charter as they relate to s 9 of the Fair Trading Act.
The details of the Director’s case against the defendants of contravention of s 9 of the Fair Trading Act was set out in Table 1 of submissions filed on her behalf dated 17 January 2011. It identified 37 statements said to be false and misleading contrary to s 9 of the Fair Trading Act. The 37 impugned statements were not all made in the same place or at the same time although the Director’s submissions did not draw a distinction between them by reference to context or time or place at which they were made.
Section 9 of the Fair Trading Act provides:
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 9 is followed by provisions dealing with misleading or deceptive conduct in particular contexts and by s 9(2) it is provided that nothing in those provisions is to be taken as limiting by implication the generality of s 9(1). Section 9(1) of the Fair Trading Act was modelled on s 52 of the Trade Practices Act 1974 (Cth) and the two provisions, and the two legislative enactments, have enjoyed a measure of concurrent and overlapping operation of the federal and state laws dealing with misleading and deceptive conduct in trade or commerce and the remedies for such contraventions.[1]
[1]Houghton v Arms (2006) 225 CLR 553, 563 [25] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
A provision proscribing statements on the basis that may be misleading or deceptive may potentially impinge upon public discussion and the free expression of opinions. Freedom of expression is fundamental to the common law[2] although it is not an absolute right.[3] The freedom to hold and express an opinion necessarily entails the freedom to hold and express an opinion which may be wrong or which may be seen to be wrong by reference to prevailing beliefs, knowledge and understanding. The right of freedom of belief and expression would be substantially diminished if it were limited only to what could be demonstrated to be true by reference to prevailing norms. In Glorie v W.A. Chip & Pulp Co Pty Ltd[4] Morling J considered the relationship between the public interest in public discussion and free expression of opinions and the prohibition on misleading and deceptive conduct saying:
[2]XYZ v Victoria Police [2010] VCAT 255 [525] (Bell J).
[3]R v Secretary of State for the Home Department, Ex parte Simms [2002] 2 AC 115, 125 (Steyn LJ).
[4][1981] 55 FLR 310.
I do not think that a statement is necessarily misleading or deceptive if it cannot be demonstrated to be correct beyond any doubt. Nor is it necessarily misleading or deceptive merely if it is not accompanied by words indicating that a contrary view is held by others. If it were otherwise, public discussion and the free expression of opinions would be greatly inhibited. This would especially be the case where the statement is one of opinion or of mixed fact and opinion. When such a statement is made, the person to whom it is addressed will, in most cases, understand that there may be room for another opinion on the same matter. Where that is the case, I find it difficult to characterize the statement as being misleading or deceptive. The position would be different, of course, when a statement of opinion is made by a person who does not, in fact, hold that opinion.[5]
In Chapman v Luminis Pty Ltd[6] von Doussa J said that:
[A]n expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and that there is basis for the opinion. If those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.[7]
Judicial proceedings should not become the means to suppress views and opinions which do not conform with prevailing views and opinions. Curial processes are, in any event, an inappropriate means by which to decide controversies on matters about which people genuinely hold diverging beliefs and opinions.
[5]Ibid 328.
[6](2001) 123 FCR 62.
[7]Ibid [193].
Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) requires a construction of s 9(1) that would promote the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object. The dividing line between what is “in” trade and commerce and what is not may not always be easy to determine. The expression of opinions and beliefs will frequently occur through, or incidental to, trade and commerce: lectures may be given in occasions of commerce to the organisers and opinions expressed in books or other publications may be an occasion of trade and commerce. Tests to determine whether speech is commercial[8] are apt to depend upon judgments upon which reasonable people may differ as is a test of whether “expression related solely to the economic interests of the speaker and its audience”.[9] Opinions and beliefs about working conditions might be seen by some as related solely to economic interests but by others as a wider political debate. An opinion about treatments and procedures may be nothing more than an opinion but found expressed as an incident of where or how to obtain the treatment or procedure. At times, indeed frequently, one may find these opinions, and their commercial availability, at the heart of deeply held social debates concerning such matters as the termination of pregnancies, voluntary euthanasia, religious practices and alternative therapies. In considering the proper construction of s 9 of the Fair Trading Act it may be assumed that it was not part of the purpose of the legislature to stifle unduly public discussion or the free expression of opinions however erroneous the opinions might be. Section 15 of the Charter gives recent expression to the right to hold an opinion without interference and to express that opinion orally, in writing, in print, by way of art or in any other medium chosen by him or her.[10] The right in s 15 may be subject to lawful restrictions to respect the rights and reputations of other persons or for the protection of national security, public order, public health or public morality.[11]
[8]Bolger v Youngs Drug Products Corporation 463 US 60, 67 (1983) (Marshall J on behalf of Burger CJ, White, Blackmun and Powell JJ).
[9]Central Hudson Gas & Electricity Corporation v Public Service Commission 447 US 557, 561 (1980) (Powell J on behalf of Brennan, Blackmun and Stevens JJ).
[10]Charter of Human Rights and Responsibilities 2006 (Vic) s 15(1) and (2).
[11]Charter of Human Rights and Responsibilities 2006 (Vic) s 15(3).
Section 32 of the Charter requires that all statutory provisions be interpreted in a way that is compatible with human rights as far as that may possibly be done consistently with the purpose of the legislation. Section 36(2) of the Charter permits the Court to make a declaration that a provision cannot be interpreted consistently with a human right if a question of law arises that relates to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter. In R v Momcilovic[12] the Court of Appeal stated that when it is contended that a statutory provision infringes the Charter the Court must apply the following methodology: first, ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with the common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic); secondly, consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter; and third, if the provision does breach a human right, then apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified. Section 7(2) relevantly provides that a human right may be subject only to such reasonable limits under law 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 those specifically enumerated in the section.
[12][2010] 265 ALR 751.
The Attorney General submitted that the settled meaning of s 9(1) of the Fair Trading Act should be applied in this proceeding because, first, it was the only possible meaning that could be given to s 9 in accordance with the existing framework of interpretative rules and, secondly, that in any event the settled meaning to s 9(1) does not infringe human rights so as to require the adoption of a less infringing meaning. That submission was made in part upon the basis that there are limits about the kind of conduct that will be considered “misleading” or “deceptive”. In that regard the Attorney General’s submissions noted the important qualifying condition for the application of the section, namely, that the section only applies to conduct that is “in trade or commerce”, and, therefore, to exclude from its operation conduct which is not in trade or commerce such as the giving of lectures.[13] The submissions also relied upon the observations in Glorie v WA Chip & Pulp Co Pty Ltd[14] and Chapman v Luminis Pty Ltd[15] to which I have previously referred. Submissions for the Director went further by asserting that “the misleading or deceptive conduct provisions, like section 9 of the FTA, properly analysed protect and promote freedom of expression”. Accordingly, I turn to a consideration of the case by reference to the settled meaning of the section.
[13]Plimer v Roberts (1997) 80 FCR 303.
[14][1981] 55 FLR 310.
[15](2001) 123 FCR 62.
The first defendant (“Operation Smile”) is a corporation incorporated under the Associations Incorporation Act 1981 (Vic). The fourth defendant (“Professor Campbell”) is the public officer of Operation Smile and a committee member of Operation Smile. The second defendant (“Operation Hope”) is incorporated in Victoria under the Corporations Act2001 (Cth) and Professor Campbell is its sole director and shareholder. The third defendant (“Hope Research”) is a corporation registered in Victoria under the Corporations Act2001 (Cth) whose sole director and shareholder is Professor Campbell. Operation Hope operates a clinic known as the Hope Clinic in Glenroy and offers a number of treatments mainly for the sufferers of cancer. The treatments include: (a) photo dynamic therapy (“PDT”), (b) radio wave therapy, (c) high dose intravenous vitamin C, (d) ozone therapy, (e) electro therapy, (f) neuro immunology, (g) insulin potentiation, (h) autologous blood-derived tumour vaccines, (i) sonodynamic therapy, (j) ketogenic diet, and (k) live blood analysis.
A website is maintained in connection with the activity of Professor Campbell and the Hope Clinic. The Director, and her counsel in the proceedings, were critical of the description of the fourth defendant as doctor and professor. Professor Campbell is not qualified as a doctor of medicine but qualified and has practiced for about thirty years as a dentist. Doctors of medicine are not the only professionals who are customarily permitted or known to use the title of doctor. It has become customary for dentists, and many other professionals, to be called, and to describe themselves as, doctors. Indeed, it is permissible and customary for anyone with a doctorate degree in any discipline (whether earned by examination, obtained by honorary grant, or otherwise), whether or not in the disciplines of medicine or science, to use the title of doctor. He 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 is entitled to be described, and to describe himself, as Professor or Doctor as do others with his qualifications or honorary titles. For completeness I should add that Dr Noone, the plaintiff, does not appear to be a medical practitioner or as having qualified as a medical practitioner but that she too is described, and in the pleadings filed on her behalf appears to describe herself, as doctor.
The proceeding was commenced by originating motion dated March 2010 but filed 11 May 2010. It was listed for hearing in the usual course for originating motions without, as I have said, the benefit of pleadings. The originating motion sought, amongst other things, declarations directed at representations said to have been made by each defendant that “the treatments, services, techniques or procedures offered or provided by the Hope Clinic:
(a) can cure cancer, or reverse, stop or slow its progress;
(b) can prolong the life of a person suffering from cancer;
(c) can benefit cancer sufferers;
(d) were or are supported by generally accepted science;
(e) were or are supported by published research findings;
(f) were or are evidence based therapies.”
A summons dated May 2010 and filed 11 May 2010 sought interlocutory relief against the defendants essentially to prevent the continuation of representations of the kind impugned by the Director. The summons came before Judd J in the Practice Court on 20 May 2010 who adjourned it to be heard on 16 June 2010 together with the trial of the originating motion then fixed for hearing to commence on the same date on an estimate of one to two days. The trial was not able to commence on 16 June 2010 because the Court did not have a judge available to hear the trial. On 17 June 2010 Hargrave J sitting in the Practice Court made interlocutory orders in the absence of an appearance by the defendants in circumstances which I have previously described in my reasons for discharging those orders in December 2010.[16] The principal proceeding was otherwise adjourned to the Associate Justice in charge of listings for fixing of a trial date.
[16]Dr Claire Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Incorporated [2010] VSC 633.
The Director had prepared an outline of submissions for the hearing on 20 May in which it was contended that the impugned representations consisted of general representations as to the benefits provided by “Hope Clinic” and representations specific to the therapies. Both the general representations and the specific representations were set out in the submissions. The orders sought on that occasion were sought in reliance upon three affidavits, being, an affidavit of Associate Professor Snyder affirmed 10 May 2010, an affidavit by Mr Scott Ridout sworn 10 May 2010 and an affidavit sworn by Geoffrey Newton on 12 May 2010. As at 20 May 2010 there appears to have been no affidavit filed or served on behalf of the defendants. New submissions were filed for the Director when the matter came back on for hearing in mid June 2010 and by that stage further material had been filed on the Director’s behalf. On 1 June 2010 Mr Ridout had sworn a second affidavit, on 28 May 2010 Associate Professor Snyder had affirmed a second affidavit, and Commissioner Bethia Wilson, the Health Services Commissioner for Victoria, swore an affidavit on 28 May 2010. By that stage Professor Campbell had sworn an affidavit which contained a volume of material which the Director contended was inadmissible. The Director’s submissions on 16 June 2010 maintained the contention that the impugned conduct consisted of general representations as to the benefits provided by “Hope Clinic” and representations specific to the therapies. The Director’s submissions dated 16 June 2010 set out the representations in two schedules with headings.
The defendants were not legally represented at any stage of these proceedings, and whatever else may be Professor Campbell’s qualifications, he is not qualified as a lawyer. The fact that the defendants were not legally represented places the Court, and to some extent the parties, in a potentially difficult position. The Court has some obligation to assist an unrepresented litigant. The obligation arises from the Court’s duty to ascertain the rights of the parties and, in that process, to ensure that the parties have a fair trial. In some cases the represented party may have a common interest with the Court in co-operating to achieve the correct result[17] and, in every case, the legal practitioners have duties to assist the Court in the discharge of its functions. Recently the Court of Appeal has said in McWhinney v Melbourne Health:[18]
[17]Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) 548-9.
[18][2011] VSCA 22.
The appellant referred to passages from the decision in Tomasevic v Travaglini (2007) 17 VR 100 where Bell J observed (at 130):
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in circumstances — it must ensure a fair trial, not afford an advantage to the self-represented litigant.
These propositions are not controversial. It is well understood that a trial judge has certain obligations to assist a self-represented litigant, but those obligations are to be balanced against the requirement that the judge preserve his or her neutrality between the parties.[19]
To these considerations may be added the obligation of a public official to act as a model litigant.[20] The overriding duty for the Court must be to achieve justice between the parties and to ensure that it is satisfied that the burden which a party bears is adequately and reliably discharged. A government official exercising a statutory function or duty shares a common interest with the Court in co-operating to achieve the correct result.[21]
[19]Ibid [25]-[26] (Neave, Redlich and Mandie JJA).
[20]Commonwealth Attorney-General, "Appendix B: The Commonwealth's obligation to act as a model litigant", Legal Services Direction 2005; Australian Tax Office, “Conduct of Tax Office Litigation” Practice Statement Law Administration 2009/9; Bruce Quigley, "The Role and Implications of Litigation in Tax Administration" (Speech delivered at the Australian Petroleum Production & Exploration Association Annual Conference, Hobart, 22 November 2007); Dale Boucher, "An Ethical Code ... Not a Code of Conduct" (1996) 79 Canberra Bulletin of Public Administration 3, 4; GE Dal Pont, Lawyers’ Professional Responsibility in Australia (2006) 296-7; see also Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342 (Griffith CJ); SCI Operations Pty Ltd v Commonwealth (1996) 139 ALR 595, 613-4, 621 (Beaumont and Einfeld JJ); Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, 704 (Beaumont, Burchett and Goldberg JJ); Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1, 40-1 (Finn J); Scott v Handley (1999) 58 ALD 373, 383-4 (Spender, Finn and Weinberg JJ); White v Minister for Immigration Multicultural Affairs [1999] FCA 1433, [81] (Ryan, North and Weinberg JJ); One.Tel Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227, 233 (Burchett J); ACCC v Warner Music Australia Pty Ltd [2000] FCA 647; Challoner v Minister for Immigration Multicultural Affairs (No 2) [2000] FCA 1601; NAFK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1374, [9] (Lindgren J); NAOY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 275, [8] (Driver FM); Wodrow v Commonwealth of Australia (2003) 129 FCR 182, [38]-[43] (Stone J); ABB Power Transmission Pty Ltd v ACCC [2003] FCAFC 261, [35] (Heerey, Stone and Bennett JJ): see on the prosecutorial duty Morley v Australian Securities and Investment Commission [2010] NSWCR 331, [678] ff.
[21]Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) 548-9; E v Secretary of State for the Home Department [2004] QB 1044, 1070 (Carnwath LJ); SH (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 1197.
In Neil v Nott[22] the High Court observed that a:
frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[23]
The passage draws attention to the Court’s fundamental task as that of ascertaining the rights of parties and not to decide which of two combatants performed best in a contest. The adversarial system works best when the parties are each legally represented and when the Court can be confident that the legal practitioners representing the parties are making informed, professional and reliable judgments in the interest of the parties for whom they appear, and where the tendered facts and submissions are calculated to assist the Court in its task of ascertaining the rights of the parties. The role of the Court where a party is not legally represented may require the Court to assist the unrepresented litigant in furtherance of the Court’s fundamental task of ascertaining the rights of the parties. What that requires may depend upon the litigant, the nature of the case[24] and such other factors as may otherwise add or detract from the Court’s confidence in the integrity of the decision it is called upon to make. Within those considerations is the need for the Court to remain impartial[25] and not to confer upon the unrepresented litigant “a positive advantage”[26] or to give the other party less than the other party is entitled.[27] In each case what will be required from the Court in assisting an unrepresented litigant will need to be measured against the Court’s functions as an impartial adjudicator in ascertaining the rights of the parties. The particular assistance which may need to be given to an unrepresented litigant will need to be moulded case by case to secure the Court’s function of impartial ascertainment of the rights of the parties. The assistance to be given should be calculated to enable the Court to perform its function. It may, perhaps, require questions to be asked of witnesses or to scrutinize the evidence which has been given or the submissions which have been made.
[22](1994) 121 ALR 148.
[23]Ibid 150 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) (emphasis added)
[24]Abram v Bank of New Zealand [1996] 18 ATPR 41-507, 42,347 (Hill, Tamberlin and Sundberg JJ).
[25]Minogue v HREOC (1999) 84 FCR 438, 446 (Sackville, North and Kenny JJ).
[26]Rajski v Scitec Corporation Pty Ltd (Unreported, NSW Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) 27 (Samuels JA).
[27]Ibid 55 (Mahoney JA).
In some cases it may be incumbent upon those appearing for the represented party to assist the Court in its task of ascertaining the rights of the parties. That may, in an appropriate case, require those appearing for the represented party to draw attention to matters that might reasonably bear upon the Court’s decision which, in a case where all parties were represented, could be expected to be referred to by the opposing practitioners. It is only the parties, and not the Court, who know the facts which do or could bear upon the Court’s decision and deliberation. The Court should be confident that what the represented party seeks is justified and should be confident of having received all proper assistance including in having had drawn to its attention matters that might be adverse to what is sought but which the Court ought fairly to consider even if only to reject. The Court should expect such assistance especially in cases where the party with representation has a duty, or is expected, to act as a model litigant. In this case it would have been of assistance for the Director’s submissions to have drawn attention to matters in the text and content of the defendants’ impugned statements that might reasonably have tended against the conclusions otherwise urged upon me by the Director. In most cases where such a task is undertaken by legal practitioners for a represented litigant it will benefit, rather than harm, the case of the party for whom the practitioners appear since it will provide a more secure foundation for what is sought by ensuring that what will have been relied upon will, to some extent, have been “tested”.
It is an elementary, and a fundamental, principle of fairness that the “[a]nalysis of whether or not conduct is misleading or deceptive must begin by identifying the conduct and the facts relied on to give it that character”.[28] The more precise identification of what was said by the Director to be false and misleading, and the basis upon which it was contended to be false and misleading, was formalised soon after the first day of hearing of the proceeding before me in mid September 2010. Counsel then appearing for the Director prepared a table with columns identifying 37 statements said to be false and misleading with a reference to where the statements were to be found and the nature and basis of the contention that they were false and misleading. It is that table which ultimately formed the basis of Table 1 to the submissions dated 17 January 2011 filed on behalf of the Director to which I shall refer in these reasons.
[28]See Russell V Miller, Miller’s Annotated Trade Practices Act (32nd ed, 2010) 568; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, 321 (French CJ).
Underlying the dispute in this case is a difference which Courts of law are not well placed to resolve. The Director’s case is fundamentally that the therapies and treatment provided by the Hope Clinic do not have the sanction of conventional medicine and prevailing scientific knowledge. The defendants would appear to concede that their treatments and practices are not offered, or sanctioned, by conventional medicine and the prevailing scientific community, but maintain that the therapies are both sound and desirable and have the acceptance of a broader scientific community. Some controversies are not apt for resolution by the tools of a court of law. Some views held as truths are not capable of proof or disproof by legal standards. The rules of evidence alone make some genuine disputes incapable of appropriate resolution by courts of law. A court is bound to decide disputes by reliable, admissible and probative evidence and those measures may distort the resolution of some disputes in favour of the party whose evidence is admissible. In some cases the Courts have had to grapple with the difficulty of relying upon novel scientific theory or technique.[29] In this case, for example, much of the evidence upon which Professor Campbell sought to rely was submitted by the Director to be inadmissible notwithstanding that it was the source and basis upon which the defendant sought to justify many of the impugned statements or to contradict the expert evidence relied upon by the Director.
[29]Daubert v Merrell Dow Pharmaceuticals Inc, 509 US 579 (Cal, 1993); R v J (J-L) (2000) 192 DLR (4th) 416.
The Director relied principally upon the evidence of Associate Professor Snyder. Associate Professor Snyder is a legally qualified medical practitioner and a fellow of the Royal Australasian College of Physicians. He has the degree of Master of Medicine and has a full time appointment as director of cancer services and director of oncology at St Vincent’s Hospital. He also conducts a private practice in oncology. He has an impressive curriculum vitae spanning some 40 years of medical practice with an impressive list of publications of his own or to which he has contributed. In 1985 he submitted a thesis for the Master of Medicine degree at the University of Melbourne on prognostic factors in pancreatic cancer. His articles or reviews include one in 1987 entitled “Unproven Cancer Remedies”.
On 7 April 2010 Mr Blair Ussher, principal counsel for Consumer Affairs Victoria, wrote to Associate Professor Snyder seeking a written opinion as to whether the therapies detailed on the Hope website:
(a) can cure cancer, or reverse, or stop or slow its progress;
(b) can prolong the life of a person suffering from cancer;
(c) are supported by generally accepted science;
(d) are supported by evidence-based findings.
The questions posed for his expert opinion in those terms may not be calculated to produce the most helpful evidence for a Court asked to make the very findings which the expert has been asked to opine upon. Expert evidence on the ultimate issue may not strictly speaking be inadmissible,[30] but care should be taken about the evidence proffered as expert evidence to ensure that it is the most helpful to the Court for its task. It is for a Court to form its own view,[31] and a Court may not itself be able to form a view or reach a conclusion merely because an expert has the opinion the Court is asked to reach. In any event, Associate Professor Snyder responded to that request on 4 May 2010.
[30] Evidence Act 2008 (Vic) s 80.
[31]Clark v Ryan (1960) 103 CLR 486, 491 (Dixon CJ); Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, 286 (Street J); Murphy v R (1989) 167 CLR 94, 110 (Mason CJ and Toohey J); ULV Py Ltd v Scott (1990) 19 NSWLR 190, 202-5 (Priestley JA); Allstate Life Insurance Co v ANZ Banking Group Pty Ltd (No 6) (1996) 64 FCR 79, 83 (Lindgren J); McNeil v Federal Commissioner of Taxation (2003) 54 ATR 1, 15 (Conti J); ASIC v Vines [2003] NSWSC 1095, [27]-[30] (Austin J).
It is not easy to find in Associate Professor’s evidence all of the instances relied upon by the Director in precisely the terms in which they are set out in Table 1. However, I think it fair to say that it is possible to locate evidence to the effect of that identified in Table 1 under the heading “Nature and Basis of Falsity”. Associate Professor Snyder does not support the treatment offered at the Hope Clinic and in his opinion the materials which had been received by the Director from Professor Campbell and the Hope Clinic “do not meet accepted scientific standards”. In that regard Associate Professor Snyder said by way of general comment:
Claims are made on the basis of information from a single source without providing confirmatory evidence. There are a number of erroneous statements. For example, a breast cancer is called stage 3, but has distant metastases; this would correctly be classified as stage 4.
As a first general observation Associate Professor Snyder said:
In conventional scientific studies, data to support a new treatment for cancer comes from a series of clinical trials. Initially trials will define how the treatment is used (dose, schedule, side-effects and biological end points), then in controlled studies to define the level of activity compared to standard treatment. These studies require protocols which define how the treatment is given, what is the target population, how many subjects are tested and what are the end points to be observed.
The Director relied upon these and other statements made by Associate Professor Snyder critical of the material in the defendants’ website from the point of view of conventional medicine and mainstream scientific opinion.
A second affidavit by Associate Professor Snyder was filed in this proceeding on 28 May 2010. The circumstances of that affidavit arose in the context of the trial then having been fixed for hearing on 16 June 2010. In that context Mr Ussher had written to Associate Professor Snyder requesting that he examine a large number of documents which had been provided by Professor Campbell and on which Mr Ussher sought a report setting out Associate Professor Snyder’s response. The process of eliciting expert opinions in this way should not be encouraged. An expert is unlikely to know what is and what is not admissible in evidence and simply asking an expert for his or her “response” to another’s “assertions” is not calculated to produce material that is likely to be helpful to a Court. That is not said by way of criticism of Associate Professor Snyder who might reasonably be expected to assume that those seeking his assistance to have the requisite expertise, knowledge and skill to ensure that his evidence would be admissible, relevant and probative. In any event, what Associate Professor Snyder was given for his response (and which he exhibited as part of his second affidavit tendered in the proceeding by the Director) were the documents described as the “attached documents” which had been delivered by Professor Campbell to the Director in support of the defendants’ position.
Associate Professor Snyder was informed in the letter from Mr Ussher of 21 May 2010 that Professor Campbell had asserted that the documents he had provided “would refute the conclusions contained” in Associate Professor Snyder’s report. On 28 May 2010 Associate Professor Snyder made an affidavit which appears to have been prepared by Mr Ussher and which expressed the global opinion that none of the materials which had been supplied by Professor Campbell “renders false any of the conclusions stated” in Associate Professor Snyder’s first report. In expressing that opinion Associate Professor Snyder noted that several of the references relied upon by Professor Campbell were simply different citations or abstracts of the same paper although, in what Associate Professor Snyder said, there was no further elaboration or particularisation of that proposition. The affidavit also set out responses to specific comments described as having been made by Professor Campbell.
The opinion of Associate Professor Snyder in his second affidavit itself appears to be the direct, and only, response by Associate Professor Snyder to the request for an opinion. It is not, as is usual for experts, an affidavit exhibiting, or referring to, a report, or a note of a response from which the affidavit was subsequently prepared. No other, or earlier, version of a report by Associate Professor Snyder was tendered in evidence and I assume that the second affidavit was prepared for him with the assistance of Mr Ussher as the only form in which a further report was produced. The particular comments of Professor Campbell to which the second affidavit of Associate Professor Snyder responded are not immediately apparent or explained, but they can reliably be found and identified by an examination and search of the documents which were exhibited to the second affidavit of Associate Professor Snyder and which he had been given by Mr Ussher. Thus, for example, some few pages into the exhibit there begins a document headed “Treatments at Operation Hope’s Clinic” which, from time to time, contains what appears to be a document setting side by side the earlier views of Associate Professor Snyder with those of Professor Campbell in response. Underneath the general heading there are a number of other sub-headings by reference to which Associate Professor Snyder responded to some, but not to all, of the points and criticisms which Professor Campbell had made.
Associate Professor Snyder prepared a third affidavit for this proceeding. That was dated 20 September 2010 by which time the trial had commenced before me. The June fixture had not been reached and the trial had been set down for hearing before me on 13 September 2010. The third affidavit of Associate Professor Snyder was produced in circumstances similar to those in which his second affidavit had been produced. The third affidavit recorded that on 14 September 2010 he received a request on behalf of Consumer Affairs Victoria asking him to examine a table containing “the alleged false, misleading or deceptive representations made by the Defendants in this proceeding” and that he was asked “by the Plaintiff’s legal advisers to consider the representations, in their full context, and to prepare an advice as to whether the representations were false, misleading or deceptive”. Associate Professor Snyder appears again to have been asked to provide an opinion on the issues which the Director was seeking the Court to determine, and about which I had expressed concerns in relation to the earlier affidavits. It is not helpful for an expert to be asked to express an opinion about whether something is false and misleading if that is the very question which the person asking the expert for an opinion is seeking the Court to determine. It does not relieve the Court of its responsibility of forming its own opinion on the issue.[32] A question for an expert in such terms, and a response by an expert to those terms, gives insufficient, if any, basis upon which the Court can reach a conclusion for itself beyond the fact that an expert had that view. The Court’s task cannot be divested or “delegated” in that way. Nor can the Director discharge the burden of satisfying the Court by tendering evidence that shows only that an expert is satisfied of the matter which the law requires that the Court be satisfied about. In any event, what was produced and exhibited to the third affidavit as Associate Professor Snyder’s report and opinion, was a version of the table substantially matching Table 1 attached to the plaintiff’s final submissions with a column headed “Dr Snyder’s opinion” in respect of each of the 37 matters that had been put as constituting the false and misleading statements. The table tendered “as evidence” of Associate Professor Snyder differed from Table 1 attached to the submissions in that the latter added to the former by including additional references relied upon by the Director for the submission that the relevant statement was false and misleading. Nonetheless, and taking as much care as I may about the way in which the expert opinion was produced and the expert evidence was given, it purports to contain the evidentiary basis relied upon by the Director in respect of each of the claims. There was also tendered, of course, the statements in the website impugned by the Director. These were tendered in electronic form by copies of DVDs capturing the various pages of the website at particular dates. There was also printed pages of some of the material on the website.
[32]Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, 286 (Street J).
Professor Campbell filed a number of affidavits on behalf of the defendants and gave oral testimony on which he was cross examined. He also cross examined Associate Professor Snyder and obtained some evidence from the cross examination upon which he relied. A great deal of the evidence tendered by Professor Campbell was the subject to objection. Some of the objections seemed curious given that the Director had herself tendered the material which Professor Campbell had provided and upon which Associate Professor Snyder’s reports were based. Indeed the Director had tendered virtually the whole of the material in the Operation Hope website as at two dates on DVDs as part of the Director’s case. However, the substantive point sought for the Director was, as I apprehended it, that I should not rely upon any of the material sought to be tendered through Professor Campbell himself to the extent that it was used to establish matters that required proof by an expert. The submissions filed by Professor Campbell also contain references to materials some of which would ordinarily not be admissible for the truth of their contents.
In R v J (J-L)[33] Binnie J (writing for the majority of the Canadian Supreme Court) warned against excluding scientific expert evidence only on the basis that it is not generally accepted saying:
Thus, in the United States, as here, “general acceptance” is only one of several factors to be considered. A penile plethysmograph may not yet be generally accepted as a forensic tool, but it may become so. A case-by-case evaluation of novel science is necessary in light of the changing nature of our scientific knowledge: it was once accepted by the highest authorities of the western world that the earth was flat.[34]
Professor Campbell sought to rely upon material which he was not able to establish as having general acceptance sufficient for it to be admissible as expert opinion evidence. He did not establish himself to be qualified to give the evidence in the documents nor qualified as an expert to tender the documents or to prove their truth in some other way. The approach I took to the Director’s objections was to rule against Professor Campbell and to explain to him that because he was unable to establish his expertise to prove the truth of the contents of the publications, I could not rely upon the publications as proof of their contents. The fact of their existence, however, is another matter. It was clear from both the evidence upon which the Director relied, and that which Professor Cambpell had sought to tender, that the defendants had relied upon material and publications for many of the impugned representations in the website. The truth of their contents was not established and the expert opinion of Associate Professor Snyder was that what they contained was erroneous or not supported by reference to the expert field of knowledge upon which he was qualified to give expert evidence but the existence of the material is not in doubt.
[33](2000) 192 DLR (4th) 416.
[34]Ibid [34].
Applications for injunctive relief of the kind sought by the Director may relevantly be seen as ones for the protection of the public interest.[35] An aspect of that public interest is to protect from harm people described in the submissions for the Director as those in distress and who may be especially vulnerable. It is relevant to consider the class of persons likely to be affected by the impugned conduct.[36] Amongst the evidence tendered for the Director was the affidavit and exhibits of Commissioner Bethia Wilson. Commissioner Wilson is the Health Services Commissioner for Victoria who, on 10 July 2005, was requested by the then Health Minister for Victoria to conduct an inquiry under s 9(1)(m) of the Health Services (Conciliation and Review) Act 1987 into the conduct of Professor Campbell. Her report was exhibited to her affidavit and Professor Campbell did not seek to cross examine Commissioner Wilson or to challenge the evidence tendered through her. Counsel for the Director referred to particular findings made by Commissioner Wilson which it was contended identified the risks and adverse effects of the manner of treatment offered by Professor Campbell at the Hope Clinic. To that may be added the concerns of Professor Snyder in his evidence both in written form and in his oral testimony.
[35]Cousins v SJS Imports Pty Ltd (2005) 27 ATPR 42-043, 42,525 [25] (Dodds-Streeton J); Cousins v Merringtons Pty Ltd [2007] VSC 542, [38] (Hansen J); see also Truth About Motor Ways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, 254-5 (Lockhart J).
[36]Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191.
Section 9 of the Fair Trading Act regulates conduct in trade or commerce. “Conduct”, within the meaning of s 9, is given a broad ambit of operation by s 3 of the Fair Trading Act. The preposition “in” provides a limitation to the scope of the conduct covered or regulated by the section,[37] for it must be possible to characterise the conduct covered by the section “as part of trade or commerce”.[38] In Concrete Constructions (NSW) Pty Ltd v Nelson[39] the Court said in relation to s 52 of the Trade Practices Act 1974 that the reference to conduct in trade or commerce “can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character.”[40]
[37]Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.
[38]Ibid 614 (Toohey J).
[39](1990) 169 CLR 594.
[40]Ibid 603 (Mason CJ, Deane,Dawson and Gaudron JJ)
The precise limits of what is or is not trade and commerce may not be possible to state definitively but conduct will not come within the operation merely because it is undertaken by someone engaged in commercial activity.[41] In Hearn v O’Rourke[42] Dowsett J said:
[T]he focus must be upon the conduct in question and not upon the range of activities in which a relevant corporation may be engaged. In other words, one does not simply identify the conduct in question, note that the relevant corporation is engaged in commercial activity of some kind, then look for a connection between the two. Because corporations are usually formed to engage in commercial activities, it will rarely be difficult to find such a connection. The correct approach is to determine whether or not the relevant conduct can, according to ordinary usage, be described as having occurred in the course of dealings "which, of their nature, bear a trading or commercial character". The commercial undertakings of the corporation in question may be relevant to the exercise. However, the more important question will be whether the conduct is of a kind which is usually of a commercial nature.[43]
Each case will depend upon its own facts but in each case the precise identification of the conduct is important.[44] In Shahid v Australasian College of Dermatologists[45] a college which provided training and accreditation for medical practitioners was found to have made representations in its handbook for trainees in trade or commerce. An officer of the RSPCA who made statements opposing the sale of electronic dog collars was found not to have made them in trade or commerce.[46] In Australian Competition and Consumer Commission v Jones (No 5)[47] Logan J found contraventions of ss 52 and 53(c) by statements in a website promoting a business claiming, amongst other things, that the reduction of elimination of glucose from diet assisted in the treatment of cancer. Here the statements impugned by the Director were made by the defendants in connection with a business which may be seen as being in trade and commerce. The treatments offered at the Hope Clinic were offered for a fee and the website promoted the business activities through which the treatments were provided. It is not a case where the representations on the website were published solely to inform or to promote a view or opinion. In this case the representations are directed to potential users of Hope Clinic who would obtain the treatment for a fee.
[41]Plimer v Roberts (1997) 80 FCR 303.
[42](2003) 129 FCR 64.
[43]Ibid [29] (Finn and Jacobson JJ) (emphasis in original).
[44]Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595, 601 (Wilcox J).
[45](2008) 168 FCR 46.
[46]Orion Pet Products Pty Ltd v RSPCA (Vic) (2002) 120 FCR 191.
[47][2011] FCA 49.
Whether the statements impugned by the Director are false and misleading falls to be determined in the context of claims about the benefits of certain treatment for people with cancer. In the context of scientific controversy a statement may be false and misleading where, in its context, it asserts or may be taken as implying that there is an adequate foundation in scientific knowledge which in fact does not exist. On that view the representations in issue in this proceeding would be false and misleading if, for example, it were said (or should be taken to imply) that the treatment at the Hope Clinic was that given by conventional doctors. It would be demonstrably falsifiable if, for instance, the website asserted, or implied, that Associate Professor Snyder approved of the treatment offered at the Hope Clinic when he plainly does not and in his professional opinion considers what the Hope Clinic does may be harmful to sufferers of cancer. In such cases representations can be demonstrated to be false and misleading because they are falsifiable on their own terms, that is, they contain factual assertions (expressly or impliedly made) which can be shown not to be true on the very terms upon which they are asserted.
In this case the Director contends that the defendants’ representations are scientifically falsifiable but that is not the same thing as a statement asserting something as fact which can be demonstrated to be wrong. In Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd[48] Burchett J said in respect of a claim under s 52 of the Trade Practices Act:
[48](1986) ATPR 40-654.
… it seems to me that proof that there is no scientific foundation for a statement in the realm of a science may be sufficient proof that the statement is misleading.
This will be so where in its context the statement must be, or is likely to be, taken as implying that there is adequate foundation in scientific knowledge to enable it to be made.[49]
In Sterling Winthrop Pty Ltd v The Boots Company (Australia) Pty Ltd[50] Tamberlin J said:
It can be misleading for a corporation which disseminates information not to put forward sufficient information to avoid the possibility that the recipient may be misled … It can also, in my view, be misleading to make a statement which implies that there is an adequate foundation in scientific knowledge to justify it when taken in its context the scientific statement quoted does not provide a proper foundation … [51]
In Janssen the central issue “of fact” was whether round worm and hook worm were of any significance to the ordinary Australian family. A qualified expert was called to give evidence that neither round worm nor hook worm had any significance at all for the ordinary Australian family. The applicant also maintained that the respondent’s assertion that its medication was safer than that of the applicant was without foundation. His Honour found, based upon expert evidence, that the statements were false or misleading. That flowed from the nature of the statement, and its analysis, which was directed to an assertion which the expert testimony was able to show to be wrong upon its terms. Sterling was a case for interlocutory relief seeking to restrain the respondent in the context of an advertising campaign. In that case the respondent’s advertisements contained statements which expert testimony could show to be wrong upon their terms. In neither case was the Court called upon to adjudicate between competing scientific theories. In neither case was the maker of the impugned statement seeking to assert that the statement was defensible on a basis other than the basis on which it was found to be false and misleading. In Australian Competition and Consumer Commission v Jones (No 5)[52] Logan J relied upon the opinions expressed by Dr Snyder[53] to find untrue, and as having been made without reasonable foundation, certain representations about the effect of the reduction or elimination of glucose in the treatment of cancer.[54] In that case his Honour had ruled inadmissible various journal articles which Mr Jones had sought to tender[55] and, importantly, noted that the respondent had not given evidence of having relied upon the articles in making the representations which were in issue in that case.
[49]Ibid 47,292.
[50](1995) ATPR 41-443.
[51]Ibid 40,877.
[52][2011] FCA 49.
[53]Ibid [30].
[54]Ibid [43].
[55]Ibid [24].
The case against these defendants is that they have made representations which are capable of curial determination as being false and misleading. It is not a claim that Professor Campbell and the other defendants are not permitted to have unconventional, or indeed wrong, views or that they can not express them. The case is not one that Professor Campbell is not entitled to express a view that the treatment offered at the Hope Clinic is, in his opinion, better than the treatment offered by conventional medicine or better than that accepted by the prevailing scientific community. Nor is the case in these proceedings that the treatment offered at the Hope Clinic is unlawful. Indeed, the Director’s evidence tendered through Commissioner Wilson, the Health Services Commissioner of Victoria, shows that the activities at the Hope Clinic were investigated and not found to be unlawful. Whether or not the claim against the defendants of having engaged in false and misleading conduct by the statements requires a precise textual and contextual analysis of the precise statements made and an examination of what is said to falsify each of them or to make each of them misleading.
The first affidavit by Mr Ridout expressed his belief that the defendants had represented that the therapies offered by the Hope Clinic:
(a) can cure cancer or reverse stop or slow its progress;
(b) can prolong the life of a person suffering from cancer;
(c) can benefit cancer sufferers;
(d) were or are supported by generally accepted science;
(e) were or are supported by published research findings;
(f) are evidence based therapies.
None of the 37 statements said to support the Director’s case actually contain a statement in the terms of the first four of the representations. However the Director’s case was not that representations were made in precisely the terms set out, but rather, that the representations were made through the 37 other statements in Table 1. It would, perhaps, have been helpful if each of the six representations identified in Mr Ridout’s affidavit, and found repeated in the origination motion, had each been separately addressed by reference to the evidence said to lead to the conclusion. It would also have been helpful if the Director’s submissions had undertaken a careful and exact analysis of the statements by reference to the text and context evaluating aspects for and against the conclusions urged upon me. However, I will proceed (as I understand the Director’s submissions to have proceeded) upon the assumption that the 37 statements would support one or more of the six representations found in Mr Ridout’s affidavit and in the originating motion.
Whether or not a statement is false and misleading depends upon its text and its context. It will not be helpful to analyse words, phrases, sentences or passages without reference to the context in which they appear. It may be the text taken as a whole which reveals statements to be false and misleading in its context where an individual consideration of each sentence of a statement separately may show each to be true and accurate.[56] Readers are not expected to analyse advertisements and may read them fleetingly to absorb their general thrust,[57] but the degree of analysis a reader may be expected to undertake will depend upon the subject matter being considered and the context in which it appears. Here the subject matter is what appeared on a website directed to people who might be potential users of the therapy at the Hope Clinic. It is a website designed to provide information to those who might seek its treatment. The target audience is likely to be, as the Director contended, people in distress. They are likely to be people who suffer from cancer and whose treatment through conventional methods may not have been successful. The particular statements identified by the Director were predominantly located on a website which a reader had specifically chosen to examine. The statements, to the extent that they might be similar to advertisements, are not those typically found in advertisements on television, newspapers or public places. They are not statements which intrude upon a reader but, rather, are made available to a reader who has chosen to visit a particular website. Furthermore, the specific individual statements which were impugned were accessible by a reader who has selected to navigate the website and to explore its detail.
[56]Telstra Corp Ltd v Optus Communications Pty Ltd (1997) 19 ATPR 41-541, 43,514 (Merkel J).
[57]Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1, 4 (Sheppard J).
The first statement impugned by the Director was that which appeared on the website as at 12 February 2010 that the treatments offered at the Hope Clinic were “peer reviewed and published methods”. The statement on the website said of the treatments offered at the Hope Clinic that:
It provides peer reviewed and published methods for cancer treatment …
The thrust of the first statement which was said to be false and misleading is that the methods used by the Hope Clinic for cancer treatment are peer reviewed and are published methods. There can I think be little doubt about the methods being published. The evidence of Associate Professor Snyder alone accepted that the methods promoted in the Hope Clinic are published methods although the place of publication did not carry the scientific and scholarly weight required by conventional practitioners.
A more debatable question is whether the methods are “peer reviewed”. Embedded in that question is what meaning must be understood by the words “peer reviewed” to have in the context in which they appeared. Associate Professor Snyder’s evidence about what peer review means in conventional scientific terms is at odds with what Professor Campbell submitted it to mean in the context of the website. According to the former “peer review” requires conformity with a rigorous process subject to testing, controlled studies and review by others. Professor Campbell had a different contention about peer review submitting that it refers “to the work done during the screening of submitted manuscripts to journals for publication”. Professor Campbell relied heavily upon articles appearing in “PubMed” as evidence of the Hope Clinic’s methods for cancer treatment being based upon methods in peer reviewed publications.
The critical question is perhaps whether the reference in the website to “peer reviewed and published methods” is false and misleading if it can not satisfy the accepted scientific standards of the kind described by Associate Professor Snyder. In some circumstances I have no doubt that it could. It would I think relevantly be false and misleading for Operation Hope to assert, for example, that the treatment given at the Hope Clinic was treatment of a kind that had the approval of what might be described as “conventional medicine”. The issue for my determination, however, is not whether the treatments offered at the Hope Clinic are reliable but, relevantly, whether claims have been made for them that they have the support of conventional medicine and prevailing science. In this case the admissible evidence of Associate Professor Snyder establishes that the treatments at the Hope Clinic are not peer reviewed and published in the sense of peer reviewed by conventional medicine and prevailing scientific practice. It would, I think be false and misleading for the defendants to claim otherwise. However, it is not clear from the website as captured as at 12 February 2010 that anyone reading the words impugned would understand them to mean that the methods had the approval of orthodox medicine or that they had been “peer reviewed” in the sense which Associate Professor Snyder used those expressions.
The website is directed to alternative cancer therapies which are described as different from conventional medicine. The home page captured in the DVD began with a welcome to what was described as “Hope complementary and alternative cancer therapies integrated with western medicine”. The use of the words “complementary” and “alternative” suggest a difference between what the Hope Clinic offered and the therapies available through conventional medicine and supported by prevailing scientific opinion. The difference between the treatment offered at the Hope Clinic and that of traditional orthodox treatment is emphasised by such words as “integrated” which suggests that what was offered as “complementary” or “alternative” was otherwise not within prevailing western medicine.
There then followed on the website shown on the DVD a list of the kinds of therapies given at the clinic, all of which by their description, and by what is not included, indicates that what was offered is not within the mainstream of medical practice or scientific opinion. The methods described, as captured in the DVD as at 12 February 2010, began with “complementary medicine”, and continued with “emotional support and counselling”, “nutritional care”, “photo dynamic therapy”, “holt microwave therapy”, “ozone therapy” and “BioLyfe electrotherapy to boost the immune system”. Within that list there was a statement that Hope Australia “offers the best scientific complementary medicine to optimize your traditional treatment plan with your Oncologist” (my emphasis). The reference to “your oncologist” is another instance of the website marking the treatments at the Hope Clinic as different from those provided by an oncologist.
A link on the website described as “complementary therapies available at Hope Australia” took a navigator on the website to a page further emphasising the difference between orthodox medicine and the therapies provided at the Hope Clinic. The page was headed “The Best of Both Worlds” and said:
It is important to recognise that practitioners of complementary and alternative medicine are not opposed to conventional medical practices, and do no hesitate to employ them (either in their own practice or through referrals to conventional doctors when appropriate). This is particularly true when dealing with patients faced with acute, life threatening illness or injuries.
Both systems of medicine have much to offer, and the wisest form of health care is one which makes use of each of them in an integrated manner that most fully meets patient needs.
It is significant from these, and from many other pages on the website, that there was a constant distinction drawn between orthodox medicine and the treatments promoted at the Hope Clinic.
The activities at the Hope Clinic were not shown to be unlawful and the only question for me for present purposes is whether what appeared on the website, by reference to its text and in its context, is relevantly false and misleading. The first instant said to be false and misleading is a statement concerning the methods used at the clinic that they are peer reviewed and published. The meaning of “peer reviewed and published” is not to be ascertained in the abstract. The matter in dispute is not to be determined by finding a meaning of words or expressions which may differ from the way they may have been used and understood in a particular context. The issue is not whether the words used in the website offended one meaning of words but whether as used, in text and context, they carried the false and misleading representations alleged. The resolution of that question depends upon the meaning the words convey in the context in which they are found and not upon whether they accord with a meaning that may prevail elsewhere, although, of course, that other meaning may be relevant to the resolution of the issue to be decided.
The Director has not satisfied me that the impugned statements are false and misleading in the context in which they appeared. The nature of the treatment at the Hope Clinic was identified in the website as not that of orthodox medicine (variously described as western medicine, traditional medicine, etc), and the references throughout the website to the publications said to support the treatment would show a reader that whatever was meant by “peer review 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 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.
The second statement impugned by the Director appeared on the website captured on 12 February 2010 on the link entitled “Objectives of integrated complementary therapy”. The statement was:
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.
The complaint here is not that many conditions are not successfully addressed by conventional medicine. Indeed, Associate Professor Snyder dealt with this complaint by observing that it was true that many conditions are not successfully addressed by conventional medicine. What Associate Professor Snyder identified as false and misleading, however, was the claim said to be made in the statement that the treatments offered by the Hope Clinic were more effective than conventional medicine in the absence of any acceptable scientific data to establish that claim. Associate Professor Snyder went on to say that in his opinion the therapies described on the website were unscientific and not properly substantiated and were extremely unlikely to benefit patients with cancer at any stage. In further support of that general view, it was submitted for the Director that the basis for Associate Professor Snyder’s conclusion were the matters set out in 6 pages[58] of the report annexed to his first affidavit in which he dealt with each of the therapies used at the Hope Clinic, although the submissions for the Director made no attempt to explain, link or analyse how what Associate Professor Snyder said in those pages led to the conclusion that the relevant statement was false and misleading.
[58]The submissions refer to the conclusions set out in pages 3-9 (inclusive) of RDS-3 but the exhibit itself ends at page 8.
It was submitted by the Director that it was as sufficient to conclude that the relevant statement was false and misleading that Associate Professor Snyder held the opinion that what was offered at the Hope Clinic was not balanced and effective from the point of view of prevailing scientific standards. Professor Campbell’s response essentially joined issue in the debate between his preferred alternative treatment and prevailing scientific practice, wisdom and knowledge. I accept the evidence of Associate Professor Snyder that traditional western medicine and prevailing scientific wisdom does not regard what is offered by the Hope Clinic as more balanced and effective than the treatment offered by conventional medicine. Indeed, I accept his expert evidence that traditional western medicine and prevailing scientific knowledge regard the treatments offered at the Hope Clinic as harmful. It may be preferable from the point of view of traditional western medicine and prevailing scientific knowledge for Professor Campbell to abandon his unorthodox views or to assert that they are wrong. However, I do not consider it to be false and misleading for the purposes of s 9(1) of the Fair Trading Act for the defendants to express a belief, opinion or view which is contrary to traditional western medicine and prevailing scientific knowledge. The same may equally be said about the positive curative effects of any number of other views, including firmly held religious beliefs, which have no foundation or support in modern medicine or science and which, judged by that standard, are clearly wrong. The statement of the defendants’ belief appears to be genuinely held and based upon material which they believe credible although it does not have the recognition and support of the prevailing scientific and medical community.
The impugned statement in the website comes within the observations in Glorie v WA Chip & Pulp Co Pty Ltd[59] of an opinion or a statement of mixed fact and opinion where the person to whom the statement is made will understand that there may be room for another opinion on the same matter. Indeed, it is clear from the statement itself that others, in this case those who adhere to conventional medicine and prevailing scientific knowledge, hold a contrary view. In that way it can be seen that the statement itself accommodates the view of Associate Professor Snyder and, rather than the statement being misleading or deceptive, it is apt to be correct and informative. That, of course, is not to endorse the treatment offered at the Hope Clinic as having any support from prevailing medical opinion or the prevailing scientific community or being efficacious in any way. This proceeding is not about endorsing the treatment at the Hope Clinic. I accept the evidence of Associate Professor Snyder that the treatments offered at the Hope Clinic are not approved or endorsed in any way by conventional medicine or in prevailing scientific opinions.
[59][1981] 55 FLR 310, 328 (Morling J).
The third statement impugned by the Director was also located on the link entitled “Objectives of integrated complementary therapy” on the website captured on 12 February 2010. This statement was:
The techniques we use include state-of-the-art medical technology and subtle energy therapies such as homeopathy and acupuncture.
Associate Professor Snyder identified what was said to be misleading in this statement as the description of the therapies listed on the website page entitled “Alternative Cancer Treatments Available at the Hope Clinic” as being “state-of-the-art”. The reason he gave for his opinion was that in his opinion those treatments are unscientific and not properly substantiated and were “extremely unlikely to benefit patients with cancer of any stage”. The Director’s submissions added to this by referring to the Associate Professor’s opinions in respect of each of the particular forms of treatment which was found on the website, and also added that in cross examination Associate Professor Snyder had said that in his own hospital there was an acceptance of complementary therapies such as art therapy and music therapy but that he did not think the sort of therapy in contention offered by the Hope Clinic would be acceptable in any hospital in Australia and was confident that it would not be acceptable in any hospital overseas.
As with other statements impugned by the Director, the basis of the allegation of falsity and misleading was the implication said to be in the statement that the treatments offered was “state-of-the-art” from the point of view of prevailing science and conventional medicine. For the reasons I have previously given I am not satisfied by the Director that the construction urged on her behalf is, or is the likely construction, that would be made by a reader of the words in the website. Professor Campbell joined issue with Associate Professor Snyder by maintaining that the treatments were “state-of-the-art” therapies judged from the point of view of the practitioners and adherents to the treatments he promotes, and, to that end he sought to rely upon 70 references published and available through PubMed. It is unnecessary to consider that material other than to note, as I think was never seriously in dispute, that Professor Campbell appears genuinely to believe the treatments to be effective and his belief in, and promotion of, those treatments are in part based[60] 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.
[60]Cf Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49, [40] (Logan J).
The fourth statement impugned by the Director also appeared on the website captured on 12 February 2010 through the link entitled “Objectives of integrated complementary therapy”. The fourth statement was:
Our philosophy is to tailor a cancer management course for each individual patient that provides optimal control while minimizing the chances for debilitating complications.
The thrust of this complaint is not the assertion of fact about the philosophy at Operation Hope but, rather, that there was no scientific evidence to support what was said to be the claim implicit in the statement, namely, that the “tailoring” of the therapies lead to any control of the cancer, much less to an “optimal control”. The Director’s submissions also added that Professor Campbell was not a medical practitioner nor were any of his staff and that the personnel at the Hope Clinic “are not qualified to treat cancer, let alone tailor a management course for individual patients to provide optimal control of their condition”.
Professor Campbell’s response was, predictably, to defend the treatment rather than to provide a textual and contextual analysis directed to whether the statement was false and misleading by reference to legal standards. 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. However, 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.
The fifth statement impugned by the Director appearing on the website captured on 12 February 2010 was also on the link entitled “Objectives of integrated complementary therapy”. It said:
These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.
The Director impugned this statement by relying upon the opinion of Associate Professor Snyder that there was no scientific evidence to support the claim that the therapies at the Hope Clinic were the best treatment option for patients who have failed conventional therapies. The Director also relied upon the opinion of Associate Professor Snyder that the therapies described on the website were not scientific and not properly substantiated and that they were, in Associate Professor Snyder’s opinion, extremely unlikely to benefit patients with the cancer of any stage. The basis upon which Associate Professor Snyder formed that opinion was set out in pages 3 to 9 of his report of 4 May 2010[61] in which he dealt with each of the therapies on the website. In respect of each of them he expressed his view about why the therapies do not have the endorsement of conventional medicine and the prevailing scientific community. 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.[62]
[61]The submissions refer to the conclusions set out in pages 3-9 (inclusive) of RDS-3 but the exhibit itself ends at page 8.
[62]Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49, [41] (Logan J).
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.[63] 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. On the other hand, it is not surprising that Professor Campbell would seek to match the broad statements relied upon by the Director (by reference to conventional medicine and prevailing scientific opinion) with matching broad statements (from the field of knowledge upon which Professor Campbell placed such weight for the activities at the Hope Clinic).
[63]ASIC v Rich [2005] NSWSC 149 [256] (Austin J); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743 [85] (Heydon JA); R v Farquharson [2009] VSCA 307, [78]-[79] (Warren CJ, Nettle and Redlich JJA); Clark v Ryan (1960) 103 CLR 486, 491 (Dixon CJ);
The question for me, however, is whether the Director has discharged her burden of establishing that the relevant statement is false and misleading as contended. I accept that the statement carries the implication that the techniques “can benefit cancer sufferers” as alleged in the originating motion. 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[64] it was said:
The primary basis upon which these statements were said to be false and misleading was that the medical data does not support some of the description of the success or efficacy of the treatments. Professor Campbell sought to justify the statements in part by reference to the publications referred to in the statements impugned by the Director. The Director objected to the admissibility of the publications notwithstanding that some of the statements might necessarily require an analysis of what had been said in the publication to determine whether or not the statements in the website adequately reflected what the publications purported to say. Associate Professor Snyder was somewhat more cautious in his approach saying that, in his opinion, the data relied upon by Professor Campbell did not support the claim, for instance, that photo dynamic therapy could produce “extremely good responses” in many cases with such a wide range of advanced cancers as those considered in the website.
Professor Campbell also sought to rely upon an article authorised for publication by Professor Andrew Kaye and published on the University of Melbourne Department of Surgery website entitled “Photo Dynamic Therapy Laboratory” dated 18 July 1997. The Director also objected to the admissibility of this article although Associate Professor Snyder gave some evidence about it in part through cross examination and in part through his evidence as adopted by the Director’s submissions. Neither party called Professor Kaye to give evidence and for present purposes I proceed, as I ruled and explained to Professor Campbell during the hearing of the proceeding, that the truth of the contents of the reports he sought to tender had not been proven. Although the truth or accuracy of the contents of such reports were not proven, the fact of their existence, and of their basis (however wrongly) for the views expressed in the website, is a matter for evidence and has been established both by the evidence of Professor Campbell and at times by reference to the very statements said to be false and misleading which expressly referred to the existence of the publications and reports. In other words, the evidence before me established the existence of the publications and reports and that the statements in the website relied upon the reports, but that the truth of the contents of the reports was not established by the defendants.
I am not satisfied that the Director has discharged the burden of establishing that any of the statements in this tranche are false and misleading either in their own terms or in the terms maintained in the originating motion. Many of these statements are statements of fact verifiable or contradictable on their own terms. Thus, for example, statement 21 is a statement of whether in fact a particular treatment was, or was not, based on the work of a Dr John Holt and whether he did or did not claim that glucose-blocking agents with 434MHz radio waves were an effective cancer therapy. The Director’s response to this statement was in part that there are no clinical trials in the scientific literature which demonstrated any benefit of the therapy in the treatment of people with cancer, and in part that the use of the therapy was the subject of an investigation by the NH&MRC which “failed to find evidence of benefit”. To some extent the nature and basis of the falsity contended by the Director in respect of the statements were, therefore, misdirected. The Director’s submissions generally maintained, and for present purposes I assume maintained justifiably, that the treatments offered are not regarded as beneficial by conventional medicine and prevailing scientific opinion. That, however, does not go to or falsify assertions of fact. Thus, by way of further example, statement 23 asserted as fact that active oxygen therapies have been used in Germany for over 50 years and were said to be very effective against cancer. In partial response to this statement the Director relied upon Associate Professor Snyder’s observation, no doubt correct, that the fact that therapy may be used for over 50 years “is not evidence of its efficacy”. Nonetheless, accepting the accuracy of the observation of Associate Professor Snyder, as I do, it does not falsify the statement of fact impugned as being false and misleading.
The specificity of each of the statements in this tranche might be said to establish the more general challenge against the defendants that what appeared on the website as authoritative statements carried the false and misleading statement (by implication) that the therapies were effective and had foundation by reference to conventional medicine and science. However, what the impugned statements show is that the opinions expressed in the statement, however wrong, are based upon the views found elsewhere. It may be that those views themselves are wrong when judged by reference to conventional medicine and prevailing scientific opinion, but a person expressing an opinion (however wrongful) is not making a false and misleading statement by identifying the sources of what may for the purpose of the argument be presumed to be the error.[72]
[72]Global Sportsman Pty Ltd v Mirror Newspapers Limited (1984) 2 FCR 82, 88 (Bowen CJ, Lockhart and Fitzgerald JJ).
The thirty fifth statement impugned by the Director did not appear on the website. On 24 March 2010 Professor Campbell wrote to the Acting Director of Consumer Affairs Victoria in response to a notice dated 18 March 2010. The letter from Professor Campbell indicated that the notice had requested documents and that he was providing documents to the Director as requested. Mr Ridout tendered in evidence the letter from Professor Campbell together with the bundle of documents referred to in the letter.
The thirty fifth statement impugned by the Director was contained in four pages of the documents and in the sheets given to patients disclosing information about the treatments. On page 84 of the document was the statement that Australian medical bodies, such as the Anti Cancer Council, have no official position on ozone treatment. On page 86 of the document there was the same statement in respect of electro therapy. On page 88 a statement appeared in relation to hyperthermia treatment. On page 90 a statement appeared in respect of intravenous vitamin C treatment. Each of these statements were, as far as the evidence before me, factually correct.
The Director’s broader complaint was, however that the statements might be construed as an acceptance or endorsement by the Anti Cancer Council of the treatment promoted on the website. The evidence of Associate Professor Snyder was that “the absence of an official position on many of these techniques should not be interpreted as acceptance or endorsement”. He added to that observation that he was able to say from his position that the potential for psychological and physical harm to patients as a result of the promotion of what he described as “these non-scientific therapies” has been a source of concern over a long period of time to cancer clinicians in Victoria. The Director also relied upon the findings in the Campbell Report tendered through Commissioner Wilson to the effect that the treatments at the Hope Clinic were either of no benefit or were unproven in terms of their efficiency, and that the Commissioner had concern about the costs incurred by vulnerable cancer patients. The Commissioner also noted that treatments involving “bowel and vaginal insufflation” and the use of enemas were “seemingly ridiculous and particularly undignified for patients in a seriously ill condition”. All this may be accepted but it does not render the statement false and misleading. The statements appeared in documents described as “Information for Patients” about each of the treatments in which the statement was contained. Each statement was also headed “Patient Disclosure Sheet” and it is relevant and important that a patient reading the information sheet should be given clear and reliable information. On one view, an absence of a statement that the relevant institutions had no official position concerning each of the four treatments could, perhaps, be of greater concern than a positive statement saying that there is no official position on the treatment one way or another. A reader where there was nothing said about the position of the Anti Cancer Council might have been left in some doubt about whether the matter had been considered and either approved or formally disapproved the treatments and, perhaps, have assumed approval. Indeed, consideration of this kind shows something of the need for caution when considering the application of provisions such as s 9.
The thirty sixth statement is not one that appears to have been made publicly. The statement was expressed in Table 1 as follows:
Noel Campbell has expressly stated that “Hope” does claim that, in some patients:
(a) there is a reversal of cancer;
(b) there is a slowing of the progress of some cancers;
(c) there is an extension of good quality of life;
(d) all treatments provided by ‘Hope’ are based on generally accepted science; and
(e) are supported by ‘evidence based findings’.
One place identified by the Director where this was said was in the letter dated 24 March 2010 from Professor Campbell to the Acting Director of Consumer Affairs Victoria although, it is important to note, that the last item identified in the statement above is significantly different in the letter from the statement as set out in Table 1. The letter itself did not say that the treatment or the findings were “supported by evidence based findings” but, significantly, as being “supported by evidence based findings as demonstrated by reference to the PubMed in the attached document” (my emphasis). The qualification in the letter, not found in the statement as set out in Table 1, is significant.
The context in which the statement was made is also significant. It is found in a letter to a government agency which had been seeking information from the defendants in the context of investigations and proceedings. It can not be false and misleading “in” trade or commerce for Professor Campbell to have made the statement to the Acting Director in an attempt to explain the position of the defendants. The statements were the opinion of the person making them and were not made in trade or commerce but in response to the exercise by the Director of her statutory public duty of investigations and administration. The responses were not part of the defendants’ trade or commerce but an incident of the Director’s statutory functions.
Another place in which the statement was said to be found was in a Court document headed “Affidavit of the Defendants” in which the defendants purported to attach documents for the purposes of this proceeding. In that context Professor Campbell wrote that the documents demonstrated that the treatments used at the Operation Hope Clinic “are supported by generally accepted science, supported by research findings in peer reviewed scientific journals and are evidence based therapies. They also demonstrate that the defendants have not engaged in misleading and deceptive conduct.” It is not false or misleading contrary to s 9(1) of the Fair Trading Act for Professor Campbell to have made that statement in the course of this proceeding in Court documents. That there may be no scientific foundation for the statement made either in the Court document or in the letter to the Director for Consumer Affairs is not the test for breach of s 9(1) of the Fair Trading Act. Neither statement is encompassed by the terms of s 9(1). It is the duty of an officer such as the plaintiff to hear such information as a potential defendant may reasonably seek to put in order for her to evaluate the defence or explanation. Similarly, the Court can have no obstacle placed in what it receives in the discharge of its jurisdiction. It is not false and misleading within the meaning of s 9(1) for a party to seek to defend their position by putting material to the Court even if it be found not to be admissible or found to be wrong. The statements made to the Court were opinions asserted as fact and, in addition, were not made in trade or commerce but in the discharge of obligations in the exercise of judicial functions invoked by the Director.
The thirty seventh statement impugned as being false and misleading was found in an affidavit by Mr Ussher made 9 September 2010 and in an exhibit to that affidavit. Mr Ussher gave evidence that on 1 July 2010 he conducted a search of the Hope website and formed the view that in his opinion the website still disclosed breaches of orders which had been made by Justice Hargrave. In that regard Mr Ussher said that he noted that new material had been placed on the website which, in his view, was misleading or very likely to be so. In that regard he noted that the website carried the following statement:
Although the majority of our therapies were approved by the Ethics Committee at Swinburne University, they are being re-evaluated by Dr Claire Noone and we cannot discuss individual potential outcomes for a few weeks.
…
If you would like to support the costs of our participation in the Dr Noone evaluation financially, it would be a great help.
Mr Ussher exhibited to his affidavit a copy of the website with the statements in question.
The basis upon which the Director contended that these statements were false and misleading was some passages in correspondence between her office and Professor Campbell. Mr Ussher’s affidavit explained that on 2 July 2010 he had sent a letter to Professor Campbell setting out his concerns and enclosed a copy of the website marked up so that Professor Campbell could identify the precise areas of the website were then complained about by the Director. In the correspondence Professor Campbell was told in respect of the first passage:
This expressions is false on many levels. The bottom-line, however, is that Dr Claire Noone is not re-evaluating the therapies. As Director of Consumer Affairs Victoria she is engaged in a court case against you. The truth is that you and your staff cannot discuss potential outcomes because this conduct is restrained by Court Order.
In respect of the second passage Professor Campbell was told:
This passage is clearly misleading and deceptive. It seems to indicate that your therapies are subject to some form of evaluation and this evaluation process requires funds. That is entirely untrue. Legal proceedings have been commenced against you and the corporate entities connected with your business for engaging in misleading and deceptive conduct. This passage contravenes the Fair Trading Act 1999. Further, you should note that it is also illegal to solicit finds [sic] from the general public in this manner under the Fundraising Act 1998.
There is no evidence before me of a successful prosecution against Professor Campbell for contravention of the Fundraising Act 1998 (Vic). Nor was there any issue raised in these proceedings of any such contravention. Unaided by the observations in the correspondence to Professor Campbell, and unaided by the submissions which adopted those observations, I would not have seen how the statements might be false and misleading in the way suggested to Professor Campbell.
The background to the change of wording in the website that led to this complaint by the Director was the commencement of the proceeding in this Court and the interim orders that had been made by Justice Hargrave on 17 June 2010. The summons for interlocutory relief had first come on for hearing before Justice Judd who did not make the interim orders which the Director had sought but referred the summons for consideration at a subsequent hearing. The subsequent hearing was due to commence on 16 June 2010 but, as Justice Hargrave later observed, the Court was unfortunately unable to provide a Judge to hear the trial on that day. The hearing of the trial was to be re-listed for another date but the application for interlocutory injunctive relief was adjourned to the following day.
Professor Campbell had not been able to attend the hearing on 16 June 2010 or 17 June 2010 because he had a flu like illness which had been certified by Dr Clive Kenner to make him unfit for work or to attend any matter professionally for the balance of that week. Professor Campbell, an unrepresented litigant, contacted his Honour’s associate on the first day upon which the matter had been set for hearing requesting an adjournment because of his ill health. It does not appear that Professor Campbell knew that the trial would not commence on 16 June 2010 by reason of a judge not being available. The following morning his Honour received a copy of the medical certificate from Dr Clive Kenner. His Honour said, in my respectful view correctly, that the way in which Professor Campbell had sought an adjournment was not appropriate. Professor Campbell was informed that the matter would proceed in his absence if he did not make an appearance or make other arrangements to appear.
On 17 June 2010 his Honour made a number of interlocutory orders in the form which the Director had sought in an uncontested hearing. The orders were in broad terms along the lines of those sought in the originating motion in the proceeding before me although his Honour reserved liberty to apply as part of the orders that he made. None of the orders made specifically referred to statements of the kind listed as statement number 37 in Table 1. The orders were served upon Professor Campbell on 23 June 2010 and two days later Mr Ussher telephoned Professor Campbell to express concern that the website had not had removed the material which had been the subject of the order and which had been detailed in the schedule to the order made by Justice Hargrave. No evidence was tendered about Professor Campbell’s health between 17 June and 23 June 2010 and I assume that at some point by the end of the week of 16 June 2010 he was well enough to deal with the matters required to be dealt with by the orders served upon him on 23 June 2010. Mr Ussher then wrote to Professor Campbell requiring him to amend the website and on 1 July 2010 Mr Ussher inspected the website. The website by that date had been amended and the two statements identified in Table 1 as 37 were on it.
It may readily enough be accepted as being generally inaccurate to describe the court case as a re-evaluation by Dr Claire Noone. However, it is plain that as between the Director and the defendants, there was a great deal more occurring than a court case at arm’s length between two private litigants. In the first place Dr Noone is not a private litigant. She is a public official exercising statutory power with statutory duties beyond those of enforcement proceedings. In the second place it is clear that there had been substantial consideration by the Director, and by those responsible for the matter in her office, of the therapies offered at the Hope Clinic and of their description on the website. Those considerations had included internal considerations by her officers, the engagement of an independent expert and a consideration of the material which Professor Campbell had put to the Director for her consideration in support of the defendants’ contention that the statements on the website about the treatment at the Hope Clinic were not false and misleading. Professor Campbell had, for example, sent to the Director’s office a large collection of documents which Professor Campbell had maintained would refute to the Director’s satisfaction the conclusions expressed by Associate Professor Snyder in his report to Consumer Affairs Victoria. Professor Campbell’s conduct in doing so on the face of it, was not the action of a litigant cavalierly disregarding his obligations, but rather, the actions of someone taking at face value the requests by a department of government for justification from him for her to consider and to evaluate. Professor Campbell had reason to assume, as I believe he was entitled to assume, that the Director (or the officer entrusted with the matter) would carefully consider the material which had been supplied and would evaluate whether the material changed the view of the Director or those in her office entrusted with the task.
Professor Campbell could fairly regard the process, of which the court proceeding was an important part, as part of the broader re-evaluation by the Director and Consumer Affairs Victoria in the exercise of the public duty conferred upon the Director. The application of s 9(1) is not to be determined by reference to whether Professor Campbell might have used better words to express himself but, rather, by reference to whether what was said on the website was false and misleading. I do not regard it, in the circumstances outlined, as being false and misleading to refer to the significant governmental function which was then being undertaken by the Director as a re-evaluation. Nor do I regard it as false and misleading to suggest that that process might be helped by financial support. It is, perhaps, unfortunate that the website referred to the Director as “Dr Claire Noone” because it might be that the reference to her by the title of doctor might in the minds of some carry with it the very implication complained about by her office. However, she does use and have the title of doctor, and the proceeding commenced in her name does carry that title attached to her name. All of the headings in the documents relevant to the Court used the title to refer to the plaintiff.
The views that I have formed about the application of s 9 of the Fair Trading Act make it unnecessary for me to consider whether the settled meaning of s 9 infringes s 15 of the Charter. It therefore becomes unnecessary to consider whether any infringement of s 15 is demonstrably justified under s 7(2) of the Charter or whether a declaration under s 32 of the Charter should be made. In that context it also becomes unnecessary to consider whether the conferral of the power to make a declaration under s 32 contravenes Chapter III of the Constitution as articulated in Kable v Director of Public Prosecutions (NSW)[73] and subsequent cases.
[73](1996) 189 CLR 51.
The Attorney-General had submitted that any declaration of inconsistency under s 36 should only be made at a subsequent hearing after a hearing at which the Court reached the opinion that a statutory provision could not be interpreted consistently with a human right. Section 36(2) provides:
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.
I do not accept the submission that the proper construction of this provision required that the question of whether a declaration should be made was something to be determined only at a subsequent hearing after the Court at an earlier hearing had formed an opinion that a statutory provision could not be interpreted consistently with a human right. In many cases, of which in my view this was one, separating the two processes as urged upon me for the Attorney-General would unnecessarily prolong disputes and might give rise to inconsistencies in determinations arising from different proceedings involving overlapping issues and debates.
The proceeding was conducted on the basis that all matters that might require determination, and in particular all facts (including any relevant to s 7 of the Charter), were in issue and tendered for determination in the one proceeding. In the event it has not become necessary for me to consider the application of the Charter and its constitutional validity. The fact that it has not been necessary to do so, however, does not mean that the submissions were not helpful. I have been greatly assisted by the submissions and in particular have valued the submissions from the amicus curiae especially in light of the fact that the only controverter in this case for the defendants was not legally qualified and not legally represented. The submissions on the question of the Charter and its validity have enabled a decision in the proceeding to be reached more confidently.
In appropriate cases I might next go on to express views about the purely legal issues raised from the potential impact of the Charter notwithstanding that it might not strictly be relevant to do so given the views that I formed concerning the proper application of s 9 of the Fair Trading Act. In this proceeding I was informed that the constitutional issues raised in relation to the Charter were substantially traversed in the High Court appeal in R v Momcilovic[74] which was heard the week before the last hearing date in the proceeding before me. The remaining issues in this proceeding about the application of the Charter and its constitutional validity are legal arguments which are unnecessary for me to consider and which will be affected by the High Court’s decision in Momcilovic.
[74](2010) 265 ALR 751.
The extent to which it is desirable to consider issues which are not strictly necessary for disposition of a case will vary from case to case. An inflexible rule requiring courts to consider all arguments would delay decision making and would, perhaps encourage issues to be raised as an obstacle to efficient decision making. In Kheirs Financial Services Pty Ltd v Aussie Home Loans Pty Ltd[75] the Court of Appeal said:
Whether in any given case a trial judge should proceed to decide issues which, strictly speaking, do not fall for decision is a matter for assessment in the circumstances of the case. But it is an assessment which trial judges should be astute to carry out. This is consistent with the observation made by the High Court, with respect to intermediate appellate courts:
[A]lthough there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. If the intermediate court has dealt with all grounds argued and an appeal to this Court succeeds, this Court will be able to consider all the issues between the parties and will not have to remit the matter to the intermediate court for consideration of grounds of appeal not dealt with below.[76]
In State Securities Pty Ltd v Dromi[77] (which was cited in the passage quoted) the trial judge had not made findings of fact in relation to defences.[78] The matters which a trial judge may need to take into account in assessing whether to consider issues that are not strictly relevant to dispose of a case are likely to be varied and complex. They may relate to the need, or desirability, for the parties to know the outcome of their dispute expeditiously. They may relate to the apparent importance of the issues. In some cases the issues which are not strictly necessary to be considered may, if considered, necessarily require the judge to make findings or conclusions which may, in the judge’s view, have disproportionate consequences for the parties. An issue may, for example, require findings about credit which may not then be open to appeal by the party affected, or perhaps a non party witness, but which, nonetheless, might cause considerable (and potentially disproportionate) personal harm to the party or to others. In such cases it might not be possible for a judge to suggest the reason for not dealing with additional issues without causing the very harm sought to be avoided. In some cases the consideration of matters which a judge does not strictly need to consider necessary may also give rise to other avoidable difficulties.[79] In some cases one of the further issues considered by a court may not permit a party to appeal the judge’s conclusion on that issue[80] but nonetheless bind the party to act upon the view expressed.[81]
[75][2010] VSCA 355.
[76]Ibid [103] (Maxwell P, Tate JA and Habersberger AJA) (footnotes omitted).
[77][2010] VSCA 264.
[78]Ibid [53] (Nettle, Redlich and Harper JJA).
[79]St George Bank Ltd v Commissioner of Taxation [2008] FCA 453, [99] (Allsop J); Mills v LCC [1925] 1 KB 213.
[80]Essenbourne Pty Ltd v Commissioner of Taxation [2002] 51 ATR 629, 641 [46]-[56] (Kiefel J).
[81]Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (1007) 158 FCR 325, 347 [46] (Edmonds J); cf Attorney-General v Dean and Canons of Windsor (1860) 8 HL Cas 369; Tindall v Wright (1922) 127 LT 149, 152 (Lord Hewart CJ with Shearman and Salter JJ agreeing).
In this case the remaining issues arose from concerns I expressed in the context of a proceeding in which the defendants were not legally represented. The concern was to ensure that all potentially relevant matters had been adequately considered in a case in which the defendants were not legally represented in case it became necessary to deal with them. The remaining issues do not depend upon contested facts and the legal and constitutional issues have been argued in Momcilovic in the High Court in which a decision is reserved. The parties did not raise the additional issues, have not urged me to decide the remaining issues and no prejudice arises if I do not deal with them. In my assessment of the matter no useful purpose would be served by my dealing with them. They were raised by the Court as concerns upon which submissions might be useful in a proceeding in which the defendants were unrepresented and who were unlikely to be able to identify them as issues or to make informed submissions on them. Having had the benefit of submissions on the issues, I am satisfied that I am able to dispose of the proceeding on the basis of the issues as presented by the principal parties.
Accordingly the order I propose to make is to dismiss the proceedings but will otherwise hear the parties about any order I should make concerning costs.
SCHEDULE OF PARTIES
| DR CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA | Plaintiff |
| and | |
| OPERATION SMILE (AUSTRALIA) INCORPORATED | Firstnamed Defendant |
| OPERATION HOPE PTY LTD (AUSTRALIA) (ACN 006 581 353) | Secondnamed Defendant |
| HOPE RESEARCH INSTITUTE PTY LTD (ACN 112 413 135) | Thirdnamed Defendant |
| NOEL RODNEY CAMPBELL | Fourthnamed Defendant |
| and | |
| ATTORNEY GENERAL FOR THE STATE OF VICTORIA | Intervener |
| and | |
| PUBLIC INTEREST LAW CLEARING HOUSE | Amicus Curiae |
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