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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors (No 2) [2011] VSC 153
Case
[2011] VSC 153
Decision Date
CaseChat Overview and Summary
The case of Noone v Operation Smile (Australia) Inc (No 2) involved the plaintiff, Noone, who took action against Operation Smile (Australia) Inc, an organisation that provides free medical treatment to children with cleft lips and palates. Noone alleged that the organisation engaged in misleading or deceptive conduct under the Fair Trading Act 1999 (Vic) by promoting non-conventional treatments. The case was heard in the Supreme Court of Victoria.
The legal issues before the court included whether the statements made by Operation Smile were false or misleading, the context in which these statements appeared, and the appropriateness of declaratory relief where the misleading statement was no longer in use. Additionally, the court considered a Charter issue raised under the Charter of Human Rights and Responsibilities Act 2006 (Vic) during the trial. The court had to balance the freedom to hold and express an opinion, even if incorrect, against the prohibition of misleading or deceptive conduct.
In its decision, the court analysed the text of the statements in the context in which they were made. It concluded that the statements were not false or misleading and that the lack of utility in granting declaratory relief was due to the cessation of the misleading statement. The court also considered the role of legal practitioners in assisting the court to ascertain the rights of the parties. Ultimately, the court found in favour of Operation Smile, dismissing Noone's claims.