FEDERAL COURT OF AUSTRALIA

Jones v Australian Competition and Consumer Commission [2010] FCA 481

Citation:		Jones v Australian Competition and Consumer Commission [2010] FCA 481

Parties:		DARRYL PETER JONES v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

File number:		QUD 115 of 2010

Judge:		COLLIER J

Date of judgment:		18 May 2010

Catchwords:		PRACTICE AND PROCEDURE – application for extension of time to appeal – application for leave to appeal – application for stay of orders pending appeal – principles relevant to leave to appeal – whether decision attended with sufficient doubt to warrant reconsideration – exercising judicial discretion – whether substantial injustice would result if leave to appeal were refused – principles relevant to granting an extension of time to appeal – whether “special reasons” demonstrated TRADE PRACTICES – applicant engaged in practices purported to resolve life-threatening diseases such as cancer – representations made on applicant’s website – alleged misleading or deceptive representations – whether orders the subject of appeal are ultra vires the Trade Practices Act 1974 (Cth) – powers of the Court in granting interim injunctions – s 6(3), s 80(2) Trade Practices Act 1974 (Cth) – principles in Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135 – whether interim injunction should be confined to conduct involving use of “postal, telegraphic or telephonic services” Held: the notice of motion filed 9 April 2010 by Darryl Peter Jones be dismissed

Legislation:		Federal Court of Australia Act 1976 (Cth) s 24(1A) Judiciary Act 1903 (Cth) s 78B Trade Practices Act 1974 (Cth) ss 6, 80 Federal Court Rules O 52 r 10(2A)(b)

Cases cited:		Australian Competition & Consumer Commission v Jones [2010] FCA 205 cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135 applied House v The King (1936) 55 CLR 499 cited ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 cited Jess v Scott (1986) 12 FCR 187 cited Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 cited OD Transport Pty Ltd v Government Railways Commission (WA) (1987) 13 FCR 500 cited Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 cited Socasen Pty Ltd v Caltex Australia Petroleum Pty Ltd [2007] FCA 997 cited Thompson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 cited Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 cited Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 cited

Date of hearing:	7 May 2010

Place:	Brisbane

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	50

Counsel for the Applicant:	Mr B Levet

Solicitor for the Applicant:	Kinghan & Associates

Counsel for the Respondent:	Mr M Brady

Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 115 of 2010

BETWEEN:

DARRYL PETER JONES

Applicant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	18 MAY 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The notice of motion filed 9 April 2010 by Darryl Peter Jones be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 115 of 2010

BETWEEN:

DARRYL PETER JONES

Applicant

AND:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent

JUDGE:	COLLIER J
DATE:	18 MAY 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 On 5 March 2010 on the application of the Australian Competition and Consumer Commission (“the ACCC”) in the related proceeding QUD 54 of 2010, Logan J made interlocutory orders restraining Mr Jones from making certain representations except on certain terms, as well as orders requiring disclosure to his clients (Australian Competition & Consumer Commission v Jones [2010] FCA 205).

2 It appears that Mr Jones had difficulty complying with a number of orders of his Honour. On 31 March 2010 the ACCC filed a notice of motion requiring Mr Jones to show cause why he should not be dealt with for contempt of his Honour’s orders of 5 March 2010. In turn, on 9 April 2010 Mr Jones filed the notice of motion which is currently before me.

3 On 14 April 2010 Logan J heard an application made orally for an extension of time to comply with Order 3 of his Honour’s orders of 5 March 2010, which (in summary) required Mr Jones to provide the ACCC with a list of his clients for the previous 12 months. His Honour made orders extending time for compliance by Mr Jones with Order 3 on the basis of undertakings given, as well as consent directions in respect of pleadings and notices under s 78B of the Judiciary Act 1903 (Cth).

4 In Mr Jones’ notice of motion which is now before me he applies for three separate orders. Those orders are:

· An order granting Mr Jones an extension of time in which to file a notice of appeal from orders of Logan J made 5 March 2010;

· An order granting Mr Jones leave to appeal against orders of Logan J made 5 March 2010; and

· An order that the orders of Logan J made 5 March 2010 be stayed pending hearing of such appeal.

5 The ACCC opposes each order sought by Mr Jones in this proceeding.

6 I am not prepared to make the orders sought by Mr Jones. I now turn to my reasons for this decision.

BACKGROUND

7 The background facts to these proceedings are summarised in the judgment of Logan J in Jones [2010] FCA 205. Briefly, the case of the ACCC is that Mr Jones has made representations which are misleading or deceptive within the meaning of the Trade Practices Act 1974 (Cth) (“the Act”) in respect of a website maintained by Mr Jones, and in a publication authored by him, entitled “The Truth About Overcoming Cancer”. Mr Jones’ publications promote, inter alia, an approach combining the exclusion of glucose from the diet, undertaking resistance training, and the administration of the substance laetrile, as a way of resolving life-threatening diseases such as cancer (Jones [2010] FCA 205 at [4]). It is common ground that Mr Jones is not himself a qualified medical practitioner. Mr Jones’ publications refer to the Darryl Jones Health Resolution Centre which, I understand, is a business name used by Mr Jones. The Darryl Jones Health Resolution Centre is not a corporation – indeed it is also not in dispute that Mr Jones has not acted through a corporate vehicle in making representations which are the subject of ACCC concern.

ORDERS OF LOGAN J OF 5 MARCH 2010

8 The ACCC commenced proceedings before Logan J seeking urgent interlocutory relief as well as final injunctive relief against Mr Jones. On 5 March 2010 Logan J made interim orders the subject of the appeal before me. Those orders are as follows:

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

1.1. first has obtained:

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

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

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

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

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

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

2.1. www.darryljoneshealth.com.au; and

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

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

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

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

2.5. not be blocked by a pop up blocker;

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

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

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

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

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

3.2.1. the document entitled “The Truth About Overcoming Cancer”;

3.2.2. the document entitled “An Entirely Different Approach to Cancer”; or

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

3.2.3.1. reasonable grounds; and

3.2.3.2. a reliable and current scientific or medical basis;

to represent that:

3.2.3.3. the reduction or elimination of glucose from the diet; or

3.2.3.4. taking laetrile, also known as amygdalin, also referred to as “vitamin B17”;

are treatments that:

3.2.3.5. are effective in the treatment or prevention of cancer;

3.2.3.6. have been proven to bring even the worst cancers under control; or

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

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

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

5.1. the notice in Schedule A attached hereto; and

5.2. these orders;

within 14 days of this order.

…

SCHEDULE A

COURT RESTRAINS TEMPORARILY DARRYL JONES FROM MAKING CANCER TREATMENT CLAIMS

The Australian Competition and Consumer Commission (ACCC) has instituted proceedings in the Federal Court of Australia against Darryl Jones alleging that certain of his representations are misleading or deceptive under the Trade Practices Act 1974 (the TPA).

On 5 March 2010 the Federal Court of Australia issued interim injunctions in relation to cancer treatment claims promoted by Mr Jones under The Darryl Jones Health Resolution Centre Program.

Those injunctions can be found at www.fedcourt.gov.au/ecourt/ecourt_esearch_slide2.html and remain in effect until such time as the Court makes further orders.

Those injunctions restrain Mr Jones, until further order of the Court, from making any claims that treatments can prevent the occurrence or treat the growth of cancer or any medical condition unless he has first obtained written medical or scientific advice to support that claim.

The ACCC urges anyone who is suffering from cancer, or who wishes to take steps to prevent it, to seek advice from a suitably qualified medical practitioner.

9 The interim injunction ordered by his Honour is founded in s 80 of the Act. So far as relevant for these proceedings, s 80 provides:

(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

(a) a contravention of a provision of Part IV, IVA, IVB, V or VC;

(b) attempting to contravene such a provision;

(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) conspiring with others to contravene such a provision;

the Court may grant an injunction in such terms as the Court determines to be appropriate.

Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (Boycott conduct is defined in subsection 87AA(2).)

…

(2) Where, in the opinion of the Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

10 At the hearing before me, both Counsel submitted that the key issue for determination was whether leave to appeal ought to be granted to Mr Jones. I agree. A finding against Mr Jones in respect of this issue would render substantially academic any consideration of the questions concerning extension of time and stay of proceedings. Indeed both Counsel submitted, and I agreed, that submissions as to whether his Honour’s orders should be stayed would be made only if I found in Mr Jones’ favour in respect of his application for leave to appeal and extension of time.

GROUNDS OF APPEAL

11 A draft notice of appeal is annexed to the affidavit of Mr Jones’ solicitor, Ann Christine Kinghan, filed 9 April 2010. Mr Jones’ draft grounds of appeal are as follows:

1. As to Order 1, His Honour erred in that such Order was ultra vires the Trade Practices Act, 1974 and the Australian Constitution.

Particulars:

a) The Respondent is not a corporation.

b) The Respondent is not and was not at any relevant time engaged in interstate trade and commerce.

c) The Respondent is not and was not at any relevant time engaged in trade and commerce within a territory.

d) The provisions of the Trade Practices Act, 1974 are only enlivened as against the Respondent by virtue of s.6 of the Trade Practices Act, 1974.

e) S.6(3) of the Trade Practices Act, 1974 is capable of founding a jurisdictional basis for enjoining the respondent from making a representation using postal, telegraphic or telephonic services but does not found a jurisdictional basis for enjoining the respondent from making representations generally.

f) S.6(4) of the Trade Practices Act, 1974 has no application as the respondent was not at any relevant time carrying on interstate trade or commerce or engaged in trade or commerce in a territory.

2. As to Order 2, His Honour erred in requiring that a notice in the form of Schedule A to the Orders be published in that there was no jurisdictional basis for the Orders which are paraphrased in schedule A being made.

3. As to Orders 3 and 4, His Honour erred in that:-

a) Such Order was ultra vires the Trade Practices Act, 1974 and the Australian Constitution.

Particulars:

i) The Respondent is not a corporation.

ii) The Respondent is not and was not at any relevant time engaged in interstate trade and commerce.

iii) The Respondent is not and was not at any relevant time engaged in trade and commerce within a territory.

iv) The provisions of the Trade Practices Act, 1974 are only enlivened as against the Respondent by virtue of s.6 of the Trade Practices Act, 1974.

v) S.6(3) of the Trade Practices Act, 1974 is capable of founding a jurisdictional basis for ordering the respondent to take actions of the type contemplated by the Orders in so far as such actions relate to persons introduced to him by means of representations using postal, telegraphic or telephonic services but does not found a jurisdictional basis for enjoining the respondent to take action independent of the statutory and constitutional head of power.

vi) S.6(4) of the Trade Practices Act, 1974 has no application as the respondent was not at any relevant time carrying on interstate trade or commerce or engaged in trade or commerce in a territory; and alternatively.

b) His Honour erred in purporting to make as an interlocutory order an order having final effect and which went to the ultimate issue between the parties.

4. As to Order 5, His Honour erred in requiring that a notice in the form of Schedule A to the Orders and the orders of 5 March be provided by the respondent to each person on the list referred to in Order 3 basis for the Orders either as made or as paraphrased in schedule A being made.

12 Mr Jones seeks an order that his Honour’s orders be set aside, and costs.

13 Further, I note that Mr Jones served no s 78B notices in respect of these proceedings. Accordingly I do not need to consider issues relevant to that provision.

PRINCIPLES RELEVANT TO LEAVE TO APPEAL

14 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment of the Court unless the Court or a Judge gives leave to appeal. The discretion of the Court to grant leave is guided by principles explained in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, namely:

· whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and

· whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

Was his Honour’s decision attended with sufficient doubt to warrant its being reconsidered by the Full Court?

15 The first question invites a consideration by the Court of the prospects of the proposed grounds of appeal. Mr Jones’ draft grounds of appeal, although somewhat lengthy, can be summarised as a contention that the orders made by his Honour were beyond the Court’s powers. Indeed Mr Levet for Mr Jones further submitted that the relatively extensive submissions by Counsel in relation to this issue demonstrated that his Honour’s decision was attended with sufficient doubt to warrant reconsideration (TS p 35 ll 29-37).

16 Mr Jones’ key argument in respect of this issue was that, because Mr Jones is neither a corporation nor engaged in interstate trade and commerce, the provisions of the Act were enlivened as against Mr Jones only as a result of his use of the internet as a means to make representations. The relevant provision of the Act in this respect was s 6(3) which provides:

In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part IVA, of Divisions 1, 1A and 1AA of Part V and of Divisions 2 and 3 of Part VC have, by force of this subsection, the effect it would have if –

a) those provisions (other than sections 55 and 75AZH) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and

b) a reference in those provisions to a corporation included a reference to a person not being a corporation.

17 Mr Jones’ case is essentially that, because Mr Jones is only subject to the Act because of his use of the internet, it follows that his Honour’s power to enjoin Mr Jones was confined to the head of power which gave rise to his jurisdiction, namely s s6(3) of the Act. Accordingly, he submits, the injunction ordered by his Honour, which purports to extend beyond representations by use of postal, telegraphic or telephonic services, was beyond power.

18 Mr Brady for the ACCC submitted, in summary, that the contentions on behalf of Mr Jones were inconsistent with the approach of the Full Court in Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135.

Foster

In Foster (2006) 149 FCR 135, a company had carried on business as a manufacturer of weight loss tablets. The primary judge found, inter alia, that:

· the company had effectively been controlled by two individuals, one of whom was Mr Foster;

· the company had engaged in resale price maintenance in contravention of s 48 of the Act;

· the company had made misleading and deceptive representations in relation to the buy-back of the tablets from area managers appointed as distributors to whom the tablets had been sold as stock;

· the company had made representations that were misleading and deceptive about the efficacy of the tablets, and Mr Foster had played an active part in those representations;

· key personnel of the business had concealed the fact of Mr Foster’s involvement in the business from area managers and creditors because of Mr Foster’s previous convictions in relation to unlawful sale and promotion of weight loss products.

19 Mr Foster was the fourth respondent to the proceedings brought by the ACCC. The primary judge granted relief sought by the ACCC, including an injunction in the following terms:

2.7 The fourth respondent be restrained, for five years from the date of this order, from being directly or indirectly knowingly concerned in the promotion or conduct by a corporation of any business relating to weight loss, cosmetic or health industry products or services of any kind.

20 Before the Full Court, Mr Foster submitted that the relevant injunction went beyond the power conferred on the Court by s 80 of the Act. In particular, Mr Foster contended that the primary judge had erred in granting the injunction when there was insufficient nexus between the contravention alleged by the ACCC and the injunction.

21 Mr Foster referred to, inter alia, an observation of Gummow J in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 267:

Section 80(1) confers upon the court the power to grant an injunction where it is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute conduct of the description in pars (a)-(f). The power of the court to grant an injunction is controlled by the words “in such terms as the Court determines to be appropriate”.

22 The Full Court considered this argument. At 147 their Honours observed:

However [the observation of Gummow J] does no more than indicate what is obvious from the structure of s 80(1) in its present form, namely that the Court’s satisfaction that the respondent has engaged in, or is proposing to engage in, one or other of the forms of conduct identified in paras (a)-(f) enlivens the power to grant an injunction “in such terms as the Court determines to be appropriate”. The appropriate terms of an injunction in a particular case are not, as a matter of construction, limited by reference to the conduct in which the Court has been satisfied the respondent has engaged or is proposing to engage. That is made doubly clear by the express provisions of s 80(4). (emphasis added)

23 Further, in construing the words “such terms as the Court determines to be appropriate” in s 80(1) their Honours preferred the reasoning of Lockhart J (with whom French J agreed) in ICI Australia Operations (1992) 38 FCR 248 at 256:

In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contravention or proposed contraventions of Pt IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. (Foster (2006) 149 FCR 135 at 147-148)

24 Their Honours also endorsed the view that the discretion conferred by s 80 is not unlimited, and must be confined by reference to the scope and purposes of the Act (at 148, referring to French J in OD Transport Pty Ltd v Government Railways Commission (WA) (1987) 13 FCR 500 at 508). In respect of future conduct, it may be appropriate for the terms of the injunction to be cast more widely than previous conduct, in order to catch conduct of any kind similar to the established contravention threatened or intended (at 149).

25 Their Honours went on:

In our view, the need, suggested by the authorities, for a nexus between the contravention of the Act which the Court has found and the terms of the restraint which it then decides to impose is a specific reflection of Lockhart J’s insistence that the power be exercised “judicially and sensibly”. It goes to the appropriateness of the relief contemplated by the concluding words of s 80(1), not to the extent of the power to grant it. If the Court considers that a complete prohibition, whether permanently or for a specified period, on a respondent’s engaging in a particular field of commercial activity or industry is required to protect the public from conduct of the kind which constituted the contravention, s 80 is wide enough to support such a prohibition as a matter of power. (at 149)

Powers of the Court under section 80

26 Section 80 constitutes a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Act: Thompson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 162. The orders made on 5 March 2010 were identified by his Honour as interim relief given pursuant to s 80(2). That this was so does not appear to be in dispute – the injunctive relief granted was interim pending determination of the final relief sought by the ACCC in its application. Section 80(2) provides:

Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

27 The Full Court considered the effect of s 80(2) in ICI Australia Operations (1992) 38 FCR 248. At 255 Lockhart J (French J agreeing) said:

Subsection (2) of s.80 empowers the Court to grant an interim injunction “where in the opinion of the Court it is desirable to do so”. In World Series Cricket Pty Limited v Parish [(1977) 16 ALR 181] (one of the first decisions of a Full Court of this Court under the Act) it was stated by Bowen C.J. (at 185) that “These words confer a judicial discretion of the widest kind upon the Court”; though his Honour then said:

It is not an arbitrary discretion but one to be exercised judicially in accordance with principle. The principles concerning the grant of interlocutory injunctions were developed in the Court of Chancery, but have been moulded to what is appropriate for different jurisdictions in which interlocutory relief may be obtained.

(cf Hill J (Sweeney J agreeing) in Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 at 397, Socasen Pty Ltd v Caltex Australia Petroleum Pty Ltd [2007] FCA 997 at [11])

28 It is clear that the injunctive powers of the Court given by s 80, including s 80(2), are very wide, limited only by the requirement that the discretion of the judge in granting the injunctive relief be exercised judicially.

In granting injunctive relief was the primary judge constrained by section 6(3) of the Act?

29 In my view it is clear, in light of the decision of the Full Court in Foster (2006) 149 FCR 135, that the construction of s 6(3) and s 80 urged by Mr Levet on behalf of Mr Jones is not correct.

30 As the title to s 6 makes clear, s 6 extends the application of Pts IV, IVA, IVB, V, VA, VB and VC of the Act. By virtue of the application of s 6(3) the Act is potentially applicable to an individual, whose activities would not otherwise fall within the scope of the Act, because the individual has allegedly made representations by “post, telegraphic or telephonic services”. In the case before me, the use of the internet – which falls within “post, telegraphic or telephonic services” – provides a nexus whereby representations by Mr Jones potentially became subject to Pt V of the Act. However an interim injunction granted by the Court on the application of the ACCC in respect of a prima facie contravention of Pt V need not be confined to representations made by “post, telegraphic or telephonic services”.

31 To explain further, insofar as is relevant for the purposes of this case, it is clear from the reasoning in Foster (2006) 149 FCR 135 that:

· if a person has allegedly made representations by means described in s 6(3); and

· those representations contravene Pt V of the Act;

· the Act is enlivened in respect of those representations; and

· the Court has power under s 80 to grant an injunction in the broadest terms (not limited to “post, telegraphic or telephonic services”); and

· the only limitation on that power is that it must be exercised judicially.

32 By analogy, for example, an injunction granted by the Court in respect of allegedly misleading and deceptive representations made in a Territory by an individual need not be confined to the making of such representations in that Territory, simply because the Act was enlivened in respect of the individual by reason of s 6(4).

33 It is not in dispute that Mr Jones made representations on an internet website. The prima facie case of contravention having been established, it then fell to the exercise of the discretion of his Honour as to the crafting of appropriate injunctive relief, provided of course that the power was exercised judicially.

Discretion

34 The very limited circumstances in which appellate courts will interfere with the exercise of judicial discretion are well known and governed by established principles. As Dixon, Evatt and McTiernan JJ said in House v The King (1936) 55 CLR 499 at 504-505:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

35 On behalf of Mr Jones, Mr Levet submitted that all of his Honour’s orders were beyond power. Other than this broad jurisdictional claim (which I consider has no merit) Mr Jones has not identified any specific aspects of Logan J’s orders in respect of which his Honour’s discretion miscarried. Indeed Mr Levet on Mr Jones’ behalf conceded that Logan J approached the task in a judicial fashion (TS p 34 ll 10-11). It is not apparent to me that his Honour exercised his discretion other than judicially. So, for example, I note that:

· Logan J took account of a report of 5 February 2010 of Dr Raymond Snyder, a person whom his Honour was satisfied was well-qualified to express the opinions contained in the report.

· His Honour found that there was a prima facie case, raising a serious question for trial, in respect of whether or not there was a misleading or deceptive quality about the promoted benefits of the Darryl Jones Health Resolution Centre methodology (Jones [2010] FCA 205 at [10]).

· Although Mr Jones was not represented, he was present at the hearing before Logan J.

· His Honour carefully considered the injunctive relief sought by the ACCC and issues raised by Mr Jones in opposition to orders granting that relief, including evidence produced by Mr Jones.

· His Honour concluded, inter alia, that the public interest would be served by the orders proposed by the ACCC, and that the balance of convenience favoured the granting of interlocutory injunctive relief.

36 No reason has been advanced which would support a finding that his Honour’s discretion was not exercised judicially or indeed to support a finding that the orders should be disturbed. I do not find that, in this respect, his Honour’s judgment was attended by sufficient doubt to warrant reconsideration.

Would substantial injustice result if leave were refused, supposing the decision to be wrong?

37 My finding that his Honour’s judgment was not attended by sufficient doubt to warrant reconsideration is enough to dispose of Mr Jones’ application that this Court grant leave to appeal from the orders of Logan J of 5 March 2010. In the interests of completeness however, I also note that I am not persuaded that substantial injustice would result if leave were refused, supposing his Honour’s decision to be wrong. I so find because although Mr Jones contends that the effect of the orders of 5 March 2010 has been to cause him “huge cost” and the effective cessation of his business, in my view the condition upon which Mr Jones is enjoined from making relevant representations is reasonable. That condition is, in substance, found in para 1.1 of his Honour’s orders, namely that Mr Jones must obtain:

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

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

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

38 In my view, considering the very serious and controversial issues inherent in the representations of Mr Jones, and the very real public health matters raised by the ACCC, it is not unreasonable that, as a condition of Mr Jones making further representations, he be required to obtain and make available medical or professional certification in the terms framed by his Honour.

39 Further, I note that the orders of 5 March 2010 require Mr Jones to produce information to the ACCC as to the identity of persons with whom Mr Jones has been dealing in relation to his treatments. Mr Jones is not, and has never been, a medical practitioner. The issue of privacy of “patients” which is of concern to Mr Jones was taken into consideration by Logan J in making the orders of 5 March 2010. In the circumstances I am unable to identify the substantial injustice in Mr Jones being required to produce this information to the ACCC.

Conclusion

40 It follows that leave to appeal is refused.

EXTENSION OF TIME

41 Order 52 r 10(2A)(b) of the Federal Court Rules requires that any notice of motion seeking leave to appeal from interlocutory orders must be filed within seven days after the date on which the interlocutory judgment was pronounced, or within such further time as the Court or a Judge may allow. As the orders the subject of the application before me were made by Logan J on 5 March 2010, it follows that the appeal period expired on 15 March 2010. Mr Jones’ notice of motion was filed on 9 April 2010, over three weeks late.

42 For the Court to allow further time for the filing and serving of an application for leave to appeal:

1. there must be a satisfactory explanation for the delay beyond the seven day time limit;

2. “Special reasons” must be demonstrated to warrant an extension of time; and

3. the application for leave must have such prospects of success that granting an extension of time is not an exercise in futility.

(Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 at [73], Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20].)

43 Mr Jones has made detailed submissions explaining the delay in filing and serving an application for leave to appeal. These explanations relate to:

· his financial position in the wake of the orders of 5 March 2010;

· the fact that he has had to move out of his home and into alternative accommodation with limited telecommunications access; and

· the fact that he is concurrently engaged in Family Court proceedings.

44 However while that these explanations for the delayed filing and service of process are satisfactory, the fact that I have already found that leave to appeal should be refused means that the granting of the extension of time for leave to appeal would be, as explained in Luck [2009] FCAFC 54 and Sharman [2005] FCA 802, an exercise in futility. It follows that Mr Jones’ application for an extension of time for filing and serving an application for leave to appeal should be refused.

45 For completeness, I note that the submissions made by Mr Levet on behalf of Mr Jones as to “special reasons” to obtain an extension of time within which to appeal related to the personal and financial constraints experienced by Mr Jones. However these issues were relied upon by Mr Jones to explain his delays.

46 In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said:

What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.

47 This explanation was endorsed by the Full Court in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [5].

48 No special reasons (unrelated to the delay) have been given as to why this case is out of the ordinary, and accordingly why an application for leave to appeal should be permitted to proceed notwithstanding the expiry of time. This is an additional reason for refusing Mr Jones’ application for extension of time to file and serve an application for leave to appeal, in addition to the fact that the application for leave to appeal clearly has no prospects of success.

STAY OF THE ORDERS OF LOGAN J MADE 5 MARCH 2010 PENDING HEARING THE APPEAL

49 At the hearing before me Mr Levet for Mr Jones conceded that if I were against Mr Jones in respect of Mr Jones’ applications for an extension of time and leave to appeal, the application in respect of a stay of his Honour’s orders becomes otiose.

50 As I consider that Mr Jones’ applications for an extension of time and leave to appeal should be dismissed, it follows that his application for a stay of the orders of his Honour pending hearing the appeal should also be dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 18 May 2010

Top