FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Jones (No 3) [2010] FCA 908

THE COURT DECLARES THAT:

The Respondent is guilty of contempt of this Court in that in breach of the orders made on 5 March 2010 (as modified on 14 April 2010) by Justice Logan (Interlocutory Orders), the Respondent engaged in the conduct set out below:

1          In respect of Darryl Jones Health Resolution Centre website:

1.1       The Respondent did not, before making the representations referred to in paragraph 9 of the Statement of Charge filed on 28 May 2010 (Statement of Charge), obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.

1.2       The Respondent did not, at the time of making the representations referred to in paragraph 9 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders.

1.3       The Respondent did not, within 7 days of making the representations referred to in paragraph 9 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.

1.4       The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof.

1.5       From at least 12 May 2010 and until 14 May 2010, the Respondent did not take all reasonable steps to ensure that a notice as required by paragraph 2 of the Interlocutory Orders:

1.5.1    was clearly viewable immediately on screen after the home page was accessed; and

1.5.2    did not require a further selection of hyperlinks or scrolling on the screen to be seen;

on the website at http://www.darryljoneshealth.com.au.

2          In respect of the electronic book entitled “The Truth About Overcoming Cancer” (the e‑book):

2.1       The Respondent did not, before making the representations in the e-book, referred to in paragraph 16 of the Statement of Charge, obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.

2.2       The Respondent did not, at the time of making the representations in the e‑book, referred to in paragraph 16 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders.

2.3       The Respondent did not, within 7 days of making the representations in the e‑book, referred to in paragraph 16 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.

2.4       The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof.

3          In respect of the Fellowship of Faith, Hope and Healing Website:

3.1       The Respondent did not, before making the representations referred to in paragraph 21 of the Statement of Charge, obtain the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.

3.2       The Respondent did not, at the time of making the representations referred to in paragraph 21 of the Statement of Charge, prominently disclose details of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the Interlocutory Orders.

3.3       The Respondent did not, within 7 days of making the representations referred to in paragraph 21 of the Statement of Charge, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders.

3.4       The Respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the Interlocutory Orders, as at the date hereof.

4          In respect of the list of clients:

4.1       The Respondent did not provide the applicant with the list as required by paragraph 3 of the Interlocutory Orders and by the time extended by paragraph 1 of the 14 April 2010 orders.

4.2       The Respondent has not provided the applicant with the list required by paragraph 3 of the orders as at the date hereof.

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.

REASONS FOR JUDGMENT

Background

1                     On 5 March 2010, for reasons which I then published (see Australian Competition and Consumer Commission v Jones [2010] FCA 205), I ordered, materially:

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 a him receiving the certificate.

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

2.1.       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:

3.5.3.5  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.

2                     The evidence before me establishes that a sealed copy of the orders that I made on 5 March 2010 was served personally on Mr Jones on 11 March 2010.  As served, the order bore on its face the notice highlighting obligations and potential sanctions for breach, as specified in O 37 r 2(3) of the Federal Court Rules.  At the same time as the order was served, a letter from the Australian Government Solicitor (AGS), addressed to Mr Jones, was served.  In that letter, too, there was a reminder that a failure to comply with the orders might have serious consequences that could include a fine or imprisonment.

3                     Later in March, a firm of solicitors, Kinghan & Associates, notified the AGS of the receipt of instructions to represent Mr Jones.  In so doing, those solicitors advised the AGS that they held instructions to seek to challenge, inter alia, those parts of the order of 5 March 2010 that I have set out above, in particular, to challenge the orders set out in paras 2, 3 and 4 in the passage quoted.

4                     In terms of the order as made on 5 March 2010, the obligation to furnish to the Australian Competition and Consumer Commission (ACCC) a list of clients expired on 20 March 2010.  That date passed without compliance with that obligation.  On 30 March, Kinghan & Associates wrote to the AGS in these terms:

Our client has instructed us to advise you that he is unwilling to comply with order 3 made by Logan J, until such time as that order has been reviewed by an appeal court.  We have therefore received instructions to appeal against such orders.

5                     That letter was followed on 31 March 2010 by the filing by the ACCC of an application that Mr Jones show cause why he should not be dealt with for contempt.

6                     On 9 April 2010, Mr Jones filed a notice of motion seeking an extension of time within which to appeal from the orders which I made on 5 March 2010, leave to appeal, and a stay of the interlocutory orders pending the hearing of an appeal. 

7                     On 14 April 2010, the ACCC’s application for Mr Jones to show cause why he should not be dealt with for contempt came before me.  Mr Jones, by his counsel, applied for an order that day that the time for compliance with para 3 of the orders of 5 March 2010 be extended.  In support of that particular application, an undertaking was given by Mr Jones to deliver a list to his solicitor of the type specified in para 3 and para 4 of the orders made on 5 March 2010.  In turn, his solicitor undertook to send such a notice to each of the persons on that list.

8                     For reasons which I gave on 14 April 2010 (see Australian Competition and Consumer Commission v Jones (No 2) [2010] FCA 371), I was persuaded that it was in the interests of justice to extend the time for compliance with para 3 of the orders which I made on 5 March 2010 until seven days after the hearing and determination of Mr Jones’ application for an extension of time within which to seek leave to appeal, or such later date as the Court might fix.

9                     The necessary consequence (of which I was well aware at the time) of making such an order was, by its nunc pro tunc effect, to undermine the basis upon which the ACCC had moved initially for its order that Mr Jones show cause why he should not be dealt with for contempt.  As I have said though, and did in my reasons for judgment, it seemed to me necessary so to do in the interests of justice, so as to give efficacy to the application for leave to appeal which Mr Jones was perfectly entitled to make.

10                  As it happened, that application was unsuccessful.  It was heard by Collier J on 7 May 2010.  On 18 May 2010, for reasons which her Honour then published (see Jones v Australian Competition and Consumer Commission [2010] FCA 481), she dismissed the application for an extension of time within which to seek leave to appeal, leave to appeal, and a stay of the interlocutory orders.  The effect then of the extension which I had granted on 14 April 2010 was that the time for compliance with the delivery of the list of clients expired on 26 May 2010.

11                  Those particular dates in terms of the court history have an importance when one comes to assess the events alleged to give rise to a contempt of the orders made on 5 March 2010 as extended on 14 April 2010.  Some of those events are not contentious.  Others, as alleged by the application now made by the ACCC for Mr Jones to be dealt with for contempt, and as detailed in the statement of charge, are contentious.

The charges of contempt

12                  I turn then to the charge which the ACCC makes against Mr Jones now, in respect of alleged contempts of court, and to his response to that statement of charge.  The ACCC’s statement of charge recites paras 1, 2 and 3 of the orders which I made on 5 March 2010.  It does not recite para 4 (quoted above).  That particular absence of recital assumed a significance in submissions that were made succinctly, but nonetheless ably for that, on his behalf by counsel who appeared for him.  I shall deal later in these reasons with those submissions.

13                  For the present, it should be noted that the allegation made by the ACCC in the statement of charge, that Mr Jones was present in Court when the orders were pronounced on 5 March 2010, is accurate.  There is no contest that he was personally present on 5 March, nor is it in contest that he was present on 14 April 2010, when the application was made for the extension of time.  Indeed, and as I have already recited, it was a material factor in relation to that extension that an undertaking was given by him personally that day.

14                  The order of extension made on 14 April 2010 was not, on the evidence, served personally on Mr Jones.  In the ordinary course of events in relation to para 3 and, necessarily (and I use that term “necessarily” deliberately) para 4, an absence of personal service of the extension would be a particular difficulty in relation to any subsequent application for him to be dealt with for contempt in respect of that particular group of orders.  That is so because, in respect of any application for contempt, in the ordinary course of events, personal service is required, not only of a notice of motion for contempt (O 40 r 8 of the Federal Court Rules) but also before then of the order concerned. 

15                  The ACCC seeks to meet this particular gap by applying, pursuant to O 37 r 2(6) of the Federal Court Rules, for an order dispensing with the need for service of the 14 April 2010 orders, personally on Mr Jones.

16                  Copies of the order as made were sent to his then solicitors.  It is obvious on the evidence that attempts were made personally to serve Mr Jones, but the itinerant nature of his movements, to which he frankly confesses in evidence, made that difficult, and in the end impossible.  I have no doubt at all though that Mr Jones was personally aware of the extension.  As I have said, he was present in court when the extension was granted.  In those circumstances, it seems to me appropriate to dispense with the need for personal service of the order of 14 April 2010, and I do so.  In like fashion, he has answered the application, statement of charge and the affidavits filed in respect of the application for contempt.  Insofar as the same may be necessary, I also dispense with the personal service of those materials. 

17                  To return then to the events alleged in the statement of charge, it is convenient to deal with these by reference to particular headings as set out in the statement of charge.  I now quote the statement of charge, using the paragraph numbers as set out in it:

DJHRC website

9.         From a date unknown to the applicant but from at least 12 May 2010 and until 14 May 2010 on the internet at http://www.darryljoneshealth.com.au the respondent, in trade or commerce, caused to be made either by himself or his servants or agents or otherwise representations to the effect that the occurrence or growth of cancer and other medical conditions can be prevented or successfully treated by means including nutrition, vitamin supplements and exercise.

10.       The respondent did not, before making the representations referred to in paragraph 9 above, obtain the written advice required by sub-paragraph 1.1 of the interlocutory orders.

11.       The respondent did not, at the time of making the representations referred to in paragraph 9 above, prominently disclose details of the written advice required by sub-paragraph 1.1 of the interlocutory orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the interlocutory orders.

12.       The respondent did not, within 7 days of making the representations referred to in paragraph 9 above, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders.

13.       The respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders, as at the date hereof.

14.       From at least 12 May 2010 and until 14 May 2010, a notice as required by paragraph 2 of the interlocutory orders appeared on the website at http://www.darryljoneshealth.com.au, but the notice was not clearly viewable immediately on screen after the home page was accessed and required a further selection of a hyperlink to be seen.

15.       From at least 12 May 2010 and until 14 May 2010, the respondent did not take all reasonable steps to ensure that a notice as required by paragraph 2 of the interlocutory orders:

15.1.     was clearly viewable immediately on screen after the home page was accessed; and

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

on the website at http://www.darryljoneshealth.com.au.

e-book

16.       From a date unknown to the applicant but from at least 12 May 2010 and until 14 May 2010 in an electronic book entitled "The Truth About Overcoming Cancer", the respondent, in trade or commerce, caused to be made either by himself or his servants or agents or otherwise representations to the effect that the occurrence or growth of cancer can be prevented or successfully treated by means including nutrition, vitamin supplements and exercise.

17.       The respondent did not, before making the representations referred to in paragraph 16 above, obtain the written advice required by sub-paragraph 1.1 of the interlocutory orders.

18.       The respondent did not, at the time of making the representations referred to in paragraph 16 above, prominently disclose details of the written advice required by sub-paragraph 1.1 of the interlocutory orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the interlocutory orders.

19.       The respondent did not, within 7 days of making the representations referred to in paragraph 16 above, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders.

20.       The respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders, as at the date hereof.

FFHH website

21.       From at least 18 May 2010, or alternatively from at least 26 March 2010, and until the date hereof, on the internet at http://faithhopehealing.org, the respondent, in trade or commerce, caused to be made either by himself or his servants or agents or otherwise representations to the effect that medical conditions can be prevented or successfully treated by means including nutrition, exercise and spiritual ministry.

22.       The respondent did not, before making the representations referred to in paragraph 21 above, obtain the written advice required by sub-paragraph 1.1 of the interlocutory orders.

23.       The respondent did not, at the time of making the representations referred to in paragraph 21 above, prominently disclose details of the written advice required by sub-paragraph 1.1 of the interlocutory orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the interlocutory orders.

24.       The respondent did not, within 7 days of making the representations referred to in paragraph 21 above, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders.

25.       The respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders, as at the date hereof.

FFHH Facebook profile

26.       From a date unknown to the applicant but from at least 20 May 2010 and until the date hereof, on the internet at http://www.facebook.com/group.php?gid=108281715881872&v=wall&ref=search, the respondent, in trade or commerce, caused to be made either by himself or his servants or agents or otherwise representations to the effect that the occurrence or growth of cancer and other medical conditions can be prevented or successfully treated by means including nutrition and exercise.

27.       The respondent did not, before making the representations referred to in paragraph 26 above, obtain the written advice required by sub-paragraph 1.1 of the interlocutory orders.

28.       The respondent did not, at the time of making the representations referred to in paragraph 26 above, prominently disclose details of the written advice required by sub-paragraph 1.1 of the interlocutory orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the interlocutory orders.

29.       The respondent did not, within 7 days of making the representations referred to in paragraph 26 above, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders.

30.       The respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders, as at the date hereof.

DJH Facebook profile

31.       From a date unknown to the applicant but from at least 16 December 2009, or alternatively from at least 20 May 2010, and until the date hereof, on the internet at http://www.facebook.com/pages/Nambour-Australia/Darryl-Jones-Health/189459429421, the respondent, in trade or commerce, caused to be made either by himself or his servants or agents or otherwise representations to the effect that the occurrence or growth of cancer and other medical conditions can be prevented or successfully treated by him.

32.       The respondent did not, before making the representations referred to in paragraph 31 above, obtain the written advice required by sub-paragraph 1.1 of the interlocutory orders.

33.       The respondent did not, at the time of making the representations referred to in paragraph 31 above, prominently disclose details of the written advice required by sub-paragraph 1.1 of the interlocutory orders, including the name, qualifications and position of the person providing the said advice, as required by sub-paragraph 1.2 of the interlocutory orders.

34.       The respondent did not, within 7 days of making the representations referred to in paragraph  31 above, provide to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders.

35.       The respondent has not provided to the applicant a copy of the written advice required by sub-paragraph 1.1 of the interlocutory orders, as at the date hereof.

36.       From a date unknown to the applicant but from at least 5 March 2010 and until the date hereof, no notice as required by paragraph 2 of the interlocutory orders appeared on the website at website at http://www.facebook.com/pages/Nambour-Australia/Darryl-Jones-Health/189459429421.

37.       From a date unknown to the applicant but from at least 5 March 2010 and until the date hereof, the respondent did not take all reasonable steps to ensure that a notice as required by paragraph 2 of the interlocutory orders:

37.1.     was clearly viewable immediately on screen after the web page was accessed; and

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

on the website at http://www.facebook.com/pages/Nambour-Australia/Darryl-Jones-Health/189459429421.

list of clients

38.       The respondent did not provide the applicant with the list as required by paragraph 3 of the interlocutory orders and by the time extended by paragraph 1 of the 14 April 2010 orders.

39.       The respondent has not provided the applicant with the list required by paragraph 3 of the orders as at the date hereof.

contempts

40.       The respondent did not comply with paragraph 1 of the interlocutory orders, by the conduct set out at:

40.1.     paragraphs 10, 11, 12 and 13 above;

40.2.     paragraphs 17, 18, 19 and 20 above;

40.3.     paragraphs 22, 23, 24 and 25 above;

40.4.     paragraphs 27, 28, 29 and 30 above; and

40.5.     paragraphs 32, 33, 34 and 35 above.

41.       The respondent did not comply with paragraph 2 of the interlocutory orders by the conduct set out at paragraph 15, 36 and 37 above.

42.       The respondent did not comply and continues not to comply with paragraph 3 of the interlocutory orders, by the extended time allowed in the 14 April 2010 orders, by the conduct set out at paragraphs 38 and 39 above.

18                  In respect of the charge as made, Mr Jones makes the following response, he:

1          admits the contempt pleaded in paragraph 40.1 of the Statement of Charge, but says that the contempt was inadvertent and has been subsequently purged. 

2          admits the contempt pleaded in paragraph 40.2 of the Statement of Charge, but says that the contempt was inadvertent and has been subsequently purged. 

3          denies the contempt pleaded in paragraph 40.3 of the Statement of Charge, on the basis that it is not [his act]. 

4          denies the contempt pleaded in paragraph 40.4 of the Statement of Charge, on the basis that it is not [his act].

5          denies the contempt pleaded in paragraph 40.5 of the Statement of Charge, on the basis that it is not [his act]. 

6          admits in part the contempt pleaded in paragraph 41 of the Statement of Charge, but otherwise denies the contempt pleaded in paragraph 41.  

Particulars:

(a)        The Respondent admits the contempt pleaded in paragraph 41, as it goes to paragraph 15 of the Statement of Charge but says that the contempt was inadvertent and has subsequently been purged.

(b)        The Respondent denies the contempts pleaded in paragraph 41, as it goes to paragraph 36 and 37 of the Statement of Charge, on the basis that they are not [his acts].

7          admits the contempt pleaded in paragraph 42 of the Statement of Charge, but says that the contempt was inadvertent and has subsequently been purged. [sic]

19                  Some further recitation of Court events is necessary before turning to whether or not each or any of the contempts as alleged should be regarded as proved.  On 21 May 2010, a directions hearing was held in these proceedings.  At that time, neither Mr Jones personally, nor lawyers on his behalf appeared.  I made directions on that date for the filing of any motions for, materially, contempt.

20                  On 28 May 2010, and as provided for by the directions made on 21 May 2010, the present application for contempt was filed.  That application was listed before me on 11 June 2010, as was for that matter a motion for default judgment in respect of an alleged failure to furnish further and better particulars as previously ordered.  On that date, Mr Jones was represented by counsel.  It transpired, having regard to evidence which was led on behalf of Mr Jones, that his solicitor, Ms Kinghan, had unfortunately encountered difficulties with her personal health, which had intruded on her ability to act for Mr Jones, particularly in relation to compliance with some interlocutory orders.  Also on that date, Mr Jones, by his counsel, advised me that he wished to give evidence in relation to the contempt application.  I adjourned the hearing of the contempt application to 22 June 2010.  Also on 11 June 2010, I made directions in respect of the filing of evidence and a response to the statement of charge by Mr Jones. 

21                  As it transpired, it did not prove possible for the hearing of the contempt application to occur on 22 June 2010.  That was because another unfortunate and unexpected health condition intruded, on this occasion, this time on the part of counsel long-briefed on behalf of the ACCC by the AGS to appear that day.  As a result, the hearing of the application for Mr Jones to be dealt with for contempt was adjourned until 16 August 2010.  That date was selected so as to enable counsel to appear on Mr Jones’ behalf.

22                  The position then in respect of the alleged contempts, having regard to the response, is that Mr Jones admits that he has not complied with para 1 of the orders that I made on 5 March 2010.  He has not done so by making representations on the Darryl Jones Health Resolution Centre website between 12 May 2010 and 14 May 2010, to the effect that the occurrence or growth of cancer, or any medical condition, can be prevented or successfully treated by any means whatsoever, without first having a written certificate, by making such representations.  That admission though is qualified by his allegation that the contempt was inadvertent and has subsequently been purged.  The ACCC puts in issue whether there has been an inadvertent contempt in that regard. 

23                  In like fashion, Mr Jones admits non-compliance in the way alleged with para 1 of the interlocutory orders in respect of an electronic book entitled, “The Truth About Overcoming Cancer,” between at least 12 May 2010 and 14 May 2010.  Again, his allegation that the contempt was inadvertent is controversial.

24                  So far as the allegation in respect of non-compliance with para 1 of the orders of 5 March 2010 relates to the Fellowship of Faith, Hope and Healing (the Fellowship) website, Mr Jones denies that alleged contempt.  He likewise denies alleged contempts, both in respect of the Facebook profile for the Fellowship, and for that matter, a Facebook profile called Darryl Jones Health. So far as the Darryl Jones Health Facebook profile is concerned, Mr Jones denies the allegation on the basis that that Facebook profile’s creation and maintenance was not his act.

25                  In relation to para 2 of the orders of 5 March, Mr Jones admits that he has failed to take all reasonable steps to ensure the notice referred to in para 2 of the orders of 5 March was displayed in the manner required on the Darryl Jones Health Resolution Centre website.  Again though, his allegation is this was inadvertent and again this allegation of inadvertence is not accepted by the ACCC.

26                  Mr Jones admits further that he has not complied, and for that matter continues not to comply, with the requirements of para 3 of the orders of 5 March 2010 (ie those relating to the provision of a list).  Again, his allegation is that the non-compliance was inadvertent and has been purged.

27                  As foreshadowed earlier, he takes issue with the allegation of a contempt in respect of para 3 further, insofar as it relates to items set out in para 4 of the order of 5 March 2010, on the basis that that particular order (ie order 4), is not specified in the statement of charge.

28                  Thus, even where there are admissions of particular breaches of the order of 5 March 2010, there remain controversial issues of fact for determination.

Power to deal with contempt

29                  The path to the ascertainment of this Court’s power in respect of contempts is a somewhat convoluted one, but the end result is clear enough.  Section 31 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) gives to the Federal Court the same power to punish contempts as that possessed by the High Court of Australia in respect of contempts of the High Court.  In turn, by s 24 of the Judiciary Act 1903 (Cth) (Judiciary Act), the High Court has the same power to deal with contempts as that possessed by the Supreme Court of Judicature in England as at 1903.  1903 was obviously selected as a reference point because it was in that year that the Judiciary Act was enacted, and the High Court of Australia, as envisaged by the Constitution (Cth), established.

30                  In Jones v Toben (2009) 255 ALR 238, Lander J offers what is, with respect, a very useful summary of the rationale for the law of contempt, as well as matters in respect of the onus and standard of proof.  His Honour there states the following at [65] – [74]:

[65]     The rationale for the exercise of the contempt power is “to protect the effective administration of justice by demonstrating that the Court’s orders will be enforced”: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 ; 66 ALR 577 at 584; [1986] HCA 46 (Mudginberri Station).

[66]     In Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273 at 309 ; [1973] 3 All ER 54 at 73, Lord Diplock said:

… Contempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also of the public as potential suitors, in the due administration of justice by the established courts of law.

[67]      There is “a public interest in the exercise of the contempt power in cases of disobedience to an order”: Mudginberri Station at CLR 107; ALR 584.

[68]      The law recognises a distinction between civil and criminal contempts. A civil contempt usually involves disobedience to a court order or breach of an undertaking. On the other hand, a criminal contempt is committed where there is contempt in the face of the court or an interference with the administration of justice.

[69]     In R v Metal Trades & Employers Assn; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 243; [1951] ALR 93 at 101–2 Latham CJ said, “Wilful disobedience to an order of the Court is contempt of a criminal nature”. In Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489; [1966] ALR 387 at 391, Barwick CJ said:

A contempt in procedure by disobedience of an order of the court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt.

[70]     In Mudginberri Station at CLR 108; ALR 585, Gibbs CJ, Mason, Wilson and Deane JJ said:

… When the defendant’s disobedience is casual it may readily appear that the primary purpose of exercising the power is to vindicate the plaintiffs’ rights. On the other hand, when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is the vindication of the court’s authority. But the classification in terms of primary purpose is a more complex and artificial undertaking when the punishment is for wilful disobedience unaccompanied by defiance. There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi criminal in character, notwithstanding the adoption of the contrary view by some members of this court in the decisions to which we have already referred.

[71]     A civil contempt may be classed as a criminal contempt if there has been a contumacious defiance of the court’s order or an undertaking given to the court: Mudginberri Station at CLR 108; ALR 585.

[72]     In Witham v Holloway (1995) 183 CLR 525 ; 131 ALR 401 ; [1995] HCA 3, Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as illusory. In that case, the majority held that because contempt proceedings are brought to punish the contemnor either for the purpose of vindicating judicial authority or for the purpose of coercing obedience to an order, the proceedings must realistically be seen as criminal in nature. For that reason, whether the contempt is civil or criminal, the charge must be proved beyond reasonable doubt. The onus of establishing the contempt is, of course, on the party asserting it.

[73]     The applicant contends that the respondent’s conduct is contumacious and in deliberate defiance of the September 2002 orders and the November 2007 undertaking. In those circumstances, it was put that the respondent’s conduct must be characterised as criminal contempt because “it occurs in circumstances where the conduct amounted to public defiance, involves a public injury and this calls into play a penal disciplinary jurisdiction to deal with criminal contempt”: Mudginberri Station at CLR 108; ALR 584.

[74]     In discharging the onus of proof, the applicant must establish beyond reasonable doubt that the respondent had knowledge of the order or undertaking and voluntarily did an act or omitted to do an act in breach of that order or undertaking. A party must comply strictly with an order that requires the party to do something or to refrain from doing something.

31                  I intend to follow the approach apparent from the passage which I have quoted from the judgment of Lander J in Jones v Toben.  In that case, his Honour set out (again, with respect, helpfully) what one might regard as elements in the proof of a contempt at [83], namely:

1.                  Were the orders actually made?

2.                  Were the orders unambiguous?

3.                  Was the respondent aware of the orders?

4.                  Has the respondent breached those orders?

5.                  In terms of criminal contempt, was the breach of those orders wilful or contumacious?

32                  Turning to those elements, there is no doubt that the orders alleged in the statement of charge were actually made, both on 5 March 2010 and 14 April 2010. 

33                  Were those orders unambiguous?  There is a necessary element of self-criticism involved in answering that question, given that I am the author of those orders.  There are admissions in respect of some of the conduct alleged.  In other words, it is not put in issue that there was an element of ambiguity about the orders.  That aside, what is set out in those orders, adopting as best I can an element of self-criticism, does seem to me to be unambiguous. 

34                  Was Mr Jones aware of the orders?  Again, there are admissions which go, at least in my opinion, to awareness.  Even aside from those admissions, I have had occasion to observe Mr Jones in giving evidence. Whilst he was on occasion inclined not directly to answer questions, that absence of direct answer did not strike me as the product of either not hearing a particular question or not understanding it, as opposed to being very careful indeed at times in relation to responses.  And by “careful,” I do not mean always careful in relation to accuracy, as opposed to careful in terms of a considered response.

35                  What I take from that is that Mr Jones is not unintelligent.  I am quite certain, certain beyond reasonable doubt, that his physical presence in court on 5 March 2010 and on 14 April 2010, coupled with his particular level of intelligence and comprehension, was such that he was from the moment of their pronouncement, well aware of the orders made on 5 March 2010 and 14 April 2010.

36                  The more difficult questions are:  has he breached the orders, and (particularly, given that the ACCC does not accept his allegation of inadvertence) was there a willful breach of the orders?  The ACCC does not in terms move for criminal contempt findings, although it is a necessary corollary to its non-acceptance of Mr Jones’ allegation of inadvertence; that the ACCC seeks to prove that the breaches were deliberate.  In respect of both breach per se, as well as whether that breach was deliberate; it is for the ACCC to prove beyond reasonable doubt, each of these elements.

Darryl Jones Heath Resolution Centre Website and the “e-book”

37                  In respect of the Darryl Jones Health Resolution Centre website, the evidence persuades me beyond reasonable doubt of the following.  Mr Jones, after the making of the orders of 5 March, suffered a decline in income derived either directly from counselling or exercise-related work, or from sales of books authored by him and promoted by him.

38                  In May this year, at some time after the orders of 5 March 2010 were extended, insofar as the same was necessary on 14 April 2010 and prior to 12 May 2010, Mr Jones spoke with a Mr Hunnam.  Mr Hunnam had been responsible for the provision of services to Mr Jones in relation to the Darryl Jones Health Resolution Centre website.  Mr Jones, in his statement, which he adopted in evidence, says that the exchange which he had with Mr Hunnam was in the following terms.  Mr Jones says that he informed Mr Hunnam of the orders and then said words to this effect:

MR JONES:   You need to place the schedule A on the website.

39                  Mr Jones then says that he believes that Schedule A was placed on that website immediately thereafter.  He admits, and I infer from this that it is based on his personal observation of the website, that the effect of placing Schedule A to the orders on the website was that the public was essentially blocked from the website, because Schedule A was the only content of the website.

40                  What he then says is that in early May of this year (and he can’t recall the exact date) he spoke to Mr Hunnam and said this, or at least words to this effect, “Schedule A is blocking the whole site, and the public can not access it.  Therefore, I’m not getting any referrals from the site and I’m also not earning money from it from book sales.  Is there any way I can comply with the orders as set out in para 2, subparas 2.3 to 2.7 of the orders, but still allow access to the public?”  To this, Mr Jones says Mr Hunnam said, “I’ll see what I can do.”

41                  That particular conversation is given only in effect.  I am satisfied that there was a conversation, and that Mr Jones did indeed seek to bring the website back on air.  What I am not satisfied about is that the conversation was quite as benign as that alleged by Mr Jones.  In other words, it was a conversation which was, I have no doubt, one which highlighted an endeavour to have the website back on air, but I am not satisfied that Mr Jones left matters entirely to Mr Hunnam, or that thereafter, Mr Hunnam was left to his own devices.

42                  Mr Hunnam did not give evidence in the proceedings. 

43                  There was, as will be apparent later, at least one other notable absentee from the witness box, Mr Kendall, in relation to the Fellowship of Faith, Hope and Healing allegations.  The question which necessarily arises in terms of these absences is:  what, if any, use I may make of the absence of Mr Hunnam, and for that matter, Mr Kendall, from the witness box?

44                  There was some debate before me in submissions as to the application, if any, of “the rule in Jones v Dunkel” as it has come to be called, by reference to the case Jones v Dunkel (1995) 101 CLR 298.  The principles for which that rule stands are comprehensively summarised in Heydon JD, Cross on Evidence (8^th Australian Edition, Lexis Nexis Butterworths), at [1215].  In particular, at p 40, in respect of the summary of the various principles, the following statement is made:

First, unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence, or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.

45                  The debate before me centred around whether or not, in a contempt proceeding where the standard of proof was the criminal standard, the rule in Jones v Dunkel had application. 

46                  The answer, in my opinion, is provided by a judgment of the Full Court of this Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [70] – [75], from which I now quote:

70        It is not an error, even in proceedings in which the criminal standard of proof applies, for a judge to draw inferences from events and circumstances of the case in the absence of any countervailing evidence that might have been given by the respondent.  Thus if a respondent to a charge of contempt of a court order fails to give evidence that he or she did not know of orders made on his on her own application, the absence of that evidence is a fact that a judge could hardly ignore a judge is entitled to point to the fact that the evidence upon which he or she has to decide the case was adduced by the applicant and then asked what the inference to be drawn was in that state of affairs (Mead v Mead (2007) 81 ALJR 185 at 13, per Gleeson CJ, with whom Hayne, Callinan, Heydon and Crennan JJ agreed).

71        As Windeyer J observed in Jones v Dunkel 101 CLR at 319, it is important not to confuse mere conjecture by a tribunal of fact with reasoned conclusion. In that case, after two trucks collided, one driver died and the other, the defendant's employee, did not give evidence. The majority (Kitto, Menzies and Windeyer JJ) held that there were sufficient primary facts on which the jury could have drawn the inference that the collision occurred on the defendant's truck's incorrect side of the road. Therefore, it was open to the jury to infer that the collision was a result of negligent driving by the defendant's employee (Jones v Dunkel 101 CLR at 306, 310, 320).

72        In that state of affairs, the jury should have been instructed that any inference favourable to the plaintiff for which there was ground in the evidence might more confidently be drawn when a person, presumably able to put a true complexion on the facts relied on as the grounds for the inference, has not been called as a witness by the defendant and the evidence provides no sufficient explanation of the witness' absence (Jones v Dunkel 101 CLR at 308 per Kitto J, 312 per Menzies J). Windeyer J relied on the well-known authority of R v Burdett (1820) 4 B & Ald 95 at 122, 161; 106 ER 873 at 883, 898 to support the capacity of the jury to draw an inference that an unexplained failure of a party to call evidence may lead rationally to an inference that the evidence would not help the party's case (Jones v Dunkel 101 CLR at 321).

73        Of course, it is seldom, if ever, reasonable to conclude that an accused in a criminal trial would be expected to give evidence (RPS v The Queen (2000) 199 CLR 620 at [26]-[28]; Dyers v The Queen (2002) 210 CLR 285 at [9]). This is because in an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at the trial. Those matters must be assessed by the jury against the requisite standard of proof without regard to the fact that the accused did not give evidence, as Gaudron, Gummow, Kirby and Hayne JJ explained in Azzopardi v The Queen(2001) 205 CLR 50 at [64]. But, as the learned author of Cross on Evidence (7th Aust ed, 2004) at 48 [1220], Heydon JD, observed, the modern High Court authorities regulate what the jury may be told but do not appear to regulate how a jury, trial judge or an appellate court may reason. The learned author said that therefore the following reasoning of the Privy Council in R v Sharmpal Singh [1962] AC 188 at 198 (an appeal in a case involving a trial before a judge and three assessors), per Lord Devlin, appears open in appropriate cases:

How did he come to squeeze his wife's throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the court must not be deterred by incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculating upon what the accused might have said if he had testified.

[emphasis added]

47                  Here, of course, it is not a matter of Mr Jones not giving evidence, but rather Mr Hunnam not giving evidence, and for that matter, Mr Kendall. 

48                  There is evidence before me that Mr Hunnam is (apparently, at least) someone who lives in Australia, albeit not in this State. 

49                  The ACCC made a number of attempts to contact Mr Hunnam, with a view to calling the gentleman in its own case.  That was a commendable, perhaps even overly rigorous, approach to the duties that fall on a person bringing a charge of contempt, to seek to call Mr Hunnam in its own case.  The ACCC did not have a statement from Mr Hunnam which suggested that he could give evidence that was relevant, but nonetheless made endeavours to contact him.

50                  Mr Jones, though, was someone who, on the evidence, was able readily to contact Mr Hunnam, more readily in terms of informative contact, it seems, than the ACCC.  I infer from the absence of Mr Hunnam being called on behalf of Mr Jones that his evidence would not have assisted; more than that I do not infer in terms of that absence.

51                  It seems to me that the desire on Mr Jones’ part to have the Darryl Jones Health Resolution Centre website displayed again other than in a way which made Schedule A prominent was a very singular motivation, hence my cynicism about whether the effect of the conversation was quite as benign, or whether Mr Hunnam was left quite as much to his own devices as Mr Jones has stated.

52                  What is apparent is that the site was operated between 12 and 14 May.  In between those two dates, as a result it seems of what one might term a “surveillance” of the internet site conducted by the ACCC, the AGS came to write on 13 May 2010 to Mr Jones’ solicitors.

53                  That letter was not just consigned to the post, but seems to have been sent both by facsimile and by email.  It also seems to have come to the attention of Mr Jones no later than 14 May 2010, and it is as a result of that particular attention, rather than anything else, I find beyond reasonable doubt, that the site came to be modified in a way which again made Schedule A prominent.

54                  What I take from this is that the display that occurred between 12 and 14 May 2010, where Schedule A was consigned to a hyperlink, was not inadvertent.  There was, I am quite satisfied, a deliberate endeavour, for purposes of financial reward, to bring that site back in a way that would give referrals and book sales.  Thus, while I accept the admission that the order was breached, I am satisfied beyond reasonable doubt that the breach was not inadvertent.

55                  The charge of contempt made by the ACCC, insofar as it relates to the Darryl Jones Health Resolution Centre website, is proved.  It is a necessary corollary of that that the charge made in respect of the electronic book, a copy of which I am satisfied was purchased by an officer of the ACCC, is also proved.

56                  It is admitted, and in any event I would find, that both the website and the book contain representations which are representations unsupported by medical or academic opinion, and representations of a kind that Mr Jones was enjoined from making by virtue of the orders which I made on 5 March 2010. 

57                  I do accept that, once Mr Jones became aware that the ACCC had detected the website being reactivated, he took steps forthwith to deactivate it.

Fellowship Website

58                  I turn then to the Fellowship website.  The content of that particular website is proved beyond reasonable doubt.  The detail of those contents is to be found in exhibit 9 to the affidavit of Shane Denzil Dallas, which was read before me on behalf of the ACCC.  Mr Dallas was not required to attend for cross-examination.  Prominent on the home page of that website is a photograph of Mr Jones, together with this statement:

Hi, my name is Darryl Jones of Queensland Australia.  I am also the founder of the “Fellowship of Faith, Hope and Healing.”

59                  I interpolate that, in evidence, Mr Jones acknowledged that particular role of founder, as for that matter did a Mr Bodhi Greenwood, of whom more later, acknowledge Mr Jones’ role as founder.

60                  Mr Jones also acknowledged authorship of the further particular statements that appear on and from which I now further quote from the website:

Here is the explosive difference.  For 20 years, using the gifts of the holy spirit in the word of wisdom and the word of knowledge, there has developed an extraordinary ministry with the chronically sick and dying.  The ministry has now ripened to the point that we wish to pass this God-given wisdom to who are: 

-           Are sick and dying.

-           Wish to be used of God to minister.

-           Want to be part of the 21^st century movement that speaks to God’s created and bullseyes their needs, (eg, “I’m very sick with no answers.  Is there any hope for me?”) – Yes!

…

This is where the Fellowship stands out.  We believe that God is creator of all there is; therefore everything has form and order.  Therefore, for every situation, there is a cause ie, including terminal disease.  The way to outstanding health is not through drugs, (although they may relieve a situation in a crisis), it is through understanding universal, God-given laws that are integrated into creation. (isn’t this what real science is all about?)

Over more than 20 years God has allowed me to explore through the “word of wisdom and knowledge” the nutritional laws and what effect then on the body.  Today, I now wish to teach down that knowledge to receptive members by means of lectures and practical application.  I wish to proliferate and grow.  I wish to be a blessing to those whose hope has failed.  I wish to go to my grave with the words, “thank you my Father for allowing me to be a universal blessing to your creation.”

I wish to pass on these God given strategies to others so that they, in turn, may bless and bless exponentially. [sic]

61                  Not coincidentally, I find, there is then on the website a link to a book which is entitled “The One to Five No Carbs Cookbook”.  There is also reference to the first meeting being scheduled for “Tuesday the 6^th at 251 Yandina Bli Bli Road”. 

62                  The ACCC called Mr Bodhi Greenwood to give evidence.  It transpired from his evidence that Mr Greenwood is a web designer.  He is also a friend of the Jones family and has been so for some 10 years.  He knows both Mr Jones and as well his daughter, Naomi.  He is a particular friend of Naomi.  That friendship has extended to a relationship of some one and a half to two years.

63                  As a result, Mr Greenwood has fairly frequent contact with Mr Jones.  Earlier this year, Mr Greenwood came to design the Fellowship website from which I have quoted.  He is a member of that particular church.  His recollection is that church was established earlier this year, about three or four months ago.

64                  I am satisfied that the establishment of the church occurred after I had made the orders on 5 March 2010.  I am satisfied also to the standard of beyond reasonable doubt that the church or fellowship was established on the initiative of Mr Jones.  I am further satisfied beyond reasonable doubt that it was established by late March of this year.

65                  Mr Greenwood’s evidence is that he came to design the website on instructions from a Mr Steve Kendall.  In transpired in the course of proceedings before me that Mr Kendall was present in court, although as I have noted, he did not give evidence.  Mr Greenwood’s recollection is that Mr Kendall sent him an email, on the strength of which he came to design the website.  His evidence was that Mr Kendall held the position of treasurer in the Fellowship.  I accept that evidence.  Mr Greenwood’s evidence was further that the detailed content of the website came either from a CD with some “Word” documents, or from email.  He was not able to be more precise about that, nor would I expect him to be more precise about that.  It doubtless was not particularly material at the time for him to have to recall, some months later, the precise provenance of the text which he put onto the website.

66                  Mr Greenwood’s evidence was also that Mr Jones did not instruct him directly to put the website up or, for that matter, to continue it.  He did say, and I accept this, that had anyone in the church (ie the Fellowship), including Mr Jones, asked him to take it down, that he would have done so. 

67                  The website concerned operates from a server which is located in Texas in the United States.  Mr Greenwood’s evidence was that he has exclusive password access to the server, and is able to access it from his business, which operates in the Sunshine Coast, north of Brisbane.

68                  It is patent on the evidence that the website is able to be accessed from Australia.  There was no submission made to me, by or on behalf of Mr Jones, that the contempt alleged must fail, because the server concerned was located in the United States.  I should make it clear though that I have nonetheless considered that issue, and regard the Australian connection to which I have referred (ie its ability to be created or modified from Australia and further, its ability to be accessed from Australia) as sufficient foundation for jurisdiction, quite apart from conduct, to which I now turn.

69                  Mr Greenwood then did not place Mr Jones as the direct source of instructions in respect of the website.  Indeed, he went so far as to say that he had never spoken to Mr Jones about the website.  Whilst I do find, with all respect to Mr Greenwood, that to be a subject about which an interrogative note was sounded in my mind about his evidence, it is not necessary to reach any concluded view.

70                  Mr Jones, in his evidence, also said that he had not given instructions about the creation of the website, but rather, in effect, that those who were his adherents had so done.  He acknowledged founding the Fellowship, and further to having some sort of managerial role in relation to the Fellowship.  I did not take from this that it was an exclusive managerial role, (ie that he was the sole person with management authority).  He also, as I have said, acknowledged authorship of the material on the website. 

71                  Having regard to the passage which I have quoted from CEPU v ACCC, I believe that I can, and I do, infer that Mr Kendall’s evidence would not have been helpful had he been called.  He was patently someone available to be called.  It was further, in my opinion, within the power of Mr Jones to call him and, indeed, not the ACCC.  The ACCC had no proof of evidence so far as I am aware from Mr Kendall.  Had it had such a proof of evidence then I might have expected him to be called in the ACCC’s case.  He was, in my opinion, having regard to Mr Jones’ evidence and Mr Greenwood’s evidence, an obvious witness one might expect to have seen called in Mr Jones’ case.

72                  Having regard to the contents of the Fellowship website, I am satisfied that the contents of that website are replete with representations of the kind enjoined by the orders that I made on 5 March 2010. 

73                  I have reflected long and hard about whether I should regard, as proved beyond reasonable doubt, Mr Jones’ involvement in the website’s initiation and maintenance.  In that regard the ACCC points to a number of factors.  Firstly, they point to the way in which the website content is cast and its authorship.  Secondly, there is no good reason for why Mr Greenwood would set up a website to benefit Mr Jones, regardless of Mr Jones’ wishes as to content.  They point to the photograph, together with Mr Jones’ name and his description as founder of the Fellowship.  In addition, they point to the advertisement of a meeting at 251 Yandina Bli Bli Road.  They also point to evidence that this particular address is one that was used by Mr Jones.  I am satisfied, having regard to Mr Jones’ affidavit, filed on 13 April 2010, that this is an address that was used by him.  The coincidence of that April address and the April date of the meeting is also significant to me.  The content of the website, the ACCC submits, is consistent with other websites owned or controlled by Mr Jones.  When I look to the Darryl Jones Health Resolution Centre website, and to the Fellowship website, there are particular similarities in terms of language, and particularly in terms of representations about what one might term, faith healing and diet.

74                  The ACCC further points to the website stating that it is designed by Webpress Express.  I interpolate that Webpress Express is Mr Greenwood’s business entity. 

75                  The ACCC further points to Mr Jones’ alleged Facebook site which contains a photograph of him recording that, “he ‘likes’ Webpress Express.” 

76                  I do not make anything in particular of the latter, but the other considerations which I have mentioned are persuasive.  It seems to me that there is a necessary inference, and one which I do draw and regard as proving beyond reasonable doubt, that the coincidence of the establishment of the Fellowship, and the authorship of the material, and the appearance on the Fellowship website, are not just mere coincidences.

77                  The injunctive order that I made on 5 March 2010 in para 1, used deliberately the words, “or otherwise howsoever.”  That is a common term used in injunctive orders and is meant to catch conduct which may not amount to strictly servant or agent conduct, or personal conduct, but is nonetheless a means by which a particular person, the subject of an injunctive order, may come to transgress it by the conduct of others.  In this particular case, whilst I accept that the direct instructions came as Mr Greenwood related from Mr Kendall, I do not regard Mr Kendall as the ultimate author of those instructions.

78                  Rather, having regard to what I have described as not mere coincidence, and the association noted between the address promoted and Mr Jones, I am satisfied that Mr Jones set out to create the Fellowship and its associated website for the particular purpose of making further representations of exactly the kind, the subject of injunctive order.  I am, therefore, satisfied that the charge which relates to the Fellowship website, is proved.

Facebook website

79                  I turn then to the Facebook websites.  I use that term in the plural deliberately.  I have evidence before me in the form of exhibit 1, in respect of particular features of a Facebook website.  These are, in effect, admissions against interest by the ACCC, and they are common ground in the proceedings.  Those admissions as to the Facebook are these:

(1)        A Facebook profile can be created by any person with an email address. 

(2)        It is possible for a person to create a Facebook profile in the name of another person, including a fictitious person, even though this may be contrary to the rules of the Facebook operator. 

(3)        It is possible that if a person creates a Facebook profile in the name of another person, that the other person may have no knowledge of the said Facebook profile. 

(4)        It is possible that some images contained on a website can be copied or downloaded by a third party, and used by that third party without the knowledge of the owner of the website, or the holder of the rights and the images. 

(5)        Such things as could be obtained by a third person from another’s website, without authority could possibly be used by the third person in a Facebook profile, without the knowledge of the owner of the website or the holder of the rights in those images. 

(6)        Facebook “groups can be opened and operated by any person with an email address. 

80                  The contents of the two Facebook websites concerned, as alleged in the statement of charge, also appear in the exhibits to Mr Dallas’ affidavit.  Mr Jones was adamant in the oral evidence that he gave that he had not created either of these.  There was more than a suggestion (on his part) that the authorship of these websites may have been his son, Mr Peter Jones.  Mr Peter Jones was also someone who apparently lives in Australia, is known to Mr Jones, and was absent from the witness box.  Again, one might have expected Mr Peter Jones to have been called in the case of his father.  His absence was, like that of Mr Kendall and Mr Hunnam, unexplained.

81                  So far as the Facebook websites are concerned, the ACCC points to particular features of those websites, and to links which appear there.  I can well see, having regard to the features, which I will shortly detail, why it was that the ACCC was moved to bring the contempt proceedings in respect of those particular websites. 

82                  There are statements on the Fellowship profile which have what one might regard as the “Jones touch” about them, namely:

We work mostly with the terminally ill, the majority have cancer and only months to live.  Through nutrition and exercise we are best known for effectively improving life style and in most cases turning the illness around to full health and restoring peoples lives.  If you have cancer, and would like to know more about our fellowship please feel free to contact Darryl Jones (creator of the group page) via personal message.  [sic]

83                  That particular site was closed some six days after the AGS directed correspondence to Mr Jones’ solicitors. 

84                  I have already made reference to, “Darryl Jones likes Webpress Express.” 

85                  Were it a matter of proof on the balance of probabilities, and it is not, the evidence as to this website, and inferences open from the absence of Mr Peter Jones and from the very contents of the website, that is the Fellowship Facebook profile, would persuade me that Mr Jones was its controller.  However, there are features of Facebook, to which I have referred, which give me pause for thought, and do create in my mind a doubt which I regard as reasonable in relation to that control.

86                  It does seem to me that there are particular bonds of those who believe that Mr Jones has some role to play in relation to healing the afflicted with cancer, which may motivate that Fellowship site as a Facebook site.  I do not regard it as proved beyond reasonable doubt the charge insofar as it relates to that. 

87                  More difficult, but nonetheless a source of a reasonable doubt in my mind, is the Facebook site insofar as it contains a profile of Mr Jones.  In effect I give him the benefit of a reasonable doubt in respect of that, notwithstanding the very particular statements which are present in that Facebook profile, to which the ACCC understandably drew attention namely, the use on the Darryl Jones Health Facebook profile of the name Darryl Jones Health, the use of a health resolution centre, the information which directs attention to addresses, with which Mr Jones has had an association, and the promotion of Mr Jones’ book.

88                  Again, were it a matter of proof on the balance of probabilities, and it is not, I would regard those factors as sufficient to prove the charge, but as I have said Facebook is a very particular website where it is possible for third parties to put up profiles without the knowledge of another person. 

89                  I am also mindful in relation to each of the Facebook websites, as to the terms of the particular injunctive orders, which enjoin from materially in para 1, making representations.  Even if these sites came to Mr Jones’ attention, and he was content to leave them there, it does not follow from this that he has made the representations. 

90                  There may well be a need for more singular orders, indeed, than those already made so as to embrace what one might term, derivative conduct or condoning, but for the present I must judge Mr Jones by reference to the orders already made and the charge as laid.  Insofar as they relate to Facebook profiles, I do not regard the charges as proved beyond reasonable doubt.

Provision on information by

91                  Finally, it is necessary to turn to the list.  In this regard there is an admission of non-compliance with some particular aspects of the requirements specified in para 3 of the orders of 5 March 2010. These are but passing omissions in terms of a particular address for a particular person and the like.  The real controversy is about whether the breach extends to that required in para 4, which materially extended to payment details.  The point made in submissions on behalf of Mr Jones was that, as I have mentioned, the charge does not mention para 4. 

92                  I was initially attracted to this particular submission, for it is the case that a contempt must be particularly charged and strictly proved. 

93                  Reflecting though on the terms of the order of 5 March 2010, and the undertakings given on 14 April 2010 and the order of extension, as they are viewed collectively, in my opinion, is consistent only with regarding para 4 as subordinate to, and an extension of the obligation which is created by para 3.  Mr Jones has, in effect, provided such information as he is easily able to give.  What he has not done, and meets with the statement in evidence that, “well, my records are in storage,” in effect, is to do further than just the easy, in relation to an order of the court.  What he has not provided in evidence is any detail as to some overwhelming burden that might be associated with either going to storage and bringing his mind to the task of providing the payment information in particular, or for that matter, going to his banker and asking for statements.  These seem to me to be not overly burdensome tasks, at least to attempt.  If I had evidence, and I do not, that Mr Jones had made these attempts, then I would not regard the conduct as has occurred as in breach of para 3 of the orders made.

94                  I was left with the distinct impression that Mr Jones did as much as he thought he had to, but no more, and was of the view that that should be sufficient.  As I have said, it would have been sufficient had I had an explanation from him as to why particular, obvious steps from him to provide the payment details, were not taken, or if taken, had proved not reasonably possible to yield information, payment information, of the kind required by order.  Save for that, the conduct alleged is proved.  In other words, it is alleged that particular information was not provided; it is accepted that information was not provided.  I regard the charge as proved beyond reasonable doubt.

Conclusions

95                  It follows then, in respect of the charges made, that the alleged contempts in respect of the Darryl Jones Health Resolution Centre website, the Fellowship website and the provision of information are proved.  I propose to make declarations accordingly.  Insofar as the charges otherwise relate to alleged contempts, I dismiss those charges. 

96                  It is now necessary to hear submissions in respect of penalty.

Associate:

Dated:         25 August 2010