The judgment notes that the Court -
made declarations and orders including injunctions in relation to representations about the prevention and treatment of cancer made by Mr Darryl Jones through The Darryl Jones Health Resolution Centre.As background to that statement the Court notes that -
The proceedings were instituted by the Australian Competition and Consumer Commission (ACCC) in relation to claims made on a website at http://www.darryljoneshealth.com.au and in an electronic book titled The Truth About Overcoming Cancer, sold through that website.
[C]ertain representations made by Mr Jones were false, misleading or deceptive under the then sections 52 and 53(c) of the Trade Practices Act 1974 (Cth). (The Trade Practices Act 1974 is now known as the Competition and Consumer Act 2010 and the equivalent provisions are Schedule 2, sections 18 and 29(g)).
The injunctions permanently restrain Mr Jones from making, or being involved in others making, or encouraging others to make, any claim concerning means of treating or preventing cancer or any medical condition unless Mr Jones has first obtained written medical or scientific advice to support the claim.
The respondent, Darryl Peter Jones has been a full time, professional personal trainer and body builder for some twenty years. In following that vocation over that period he has owned a fitness centre and a gym at various times. These he describes as having been highly successful. Some thirty years ago, he commenced theological studies in New South Wales graduating in 1984 from the Assemblies of God College at Katoomba with a Diploma of Ministry. Since then he has always maintained involvement in part time and voluntary aspects of Christian churches and fellowships both in New South Wales and in Queensland.Jones' book had featured delightful statements such as -
Over time, a combination of Mr Jones' experience in the field of personal training and body building, his particular interest in natural body building, ie the development of the human body to the optimum strength and muscular presentation without the use of steroids or performance enhancing drugs and his theological studies and religious beliefs led more recently to his establishing a business known as the Darryl Jones Health Resolution Centre (the Centre).
Aspects of Mr Jones’ conduct in the course of his carrying on business at the Centre excited the interest of the Australian Competition and Consumer Commission (the Commission). The Commission came to institute proceedings in this Court against Mr Jones alleging contraventions on his part of s 52 and s 53(c) of what was known at the time as the Trade Practices 1974 (Cth) (the Act). On the basis of these alleged contraventions the Commission claims against Mr Jones declaratory, injunctive and ancillary relief.
Darryl Jones from the Darryl Jones Health Resolution Centre says the simple secret is a strict regime of diet and exercise which has been proven to bring even the worst cancers under control.Additionally, he had claimed that -
In fact, Darryl helps clients gain success in even terminal cases – cancer patients whose doctors have told them there is nothing more that traditional healthcare medicine can do.
laetrile (aka amygdalin and 'vitamin' B17) "was effective in the treatment or prevention of cancer; had been proven to bring even the worst cancers under control; and was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs radium therapy, surgery and chemotherapy; and that he had reasonable grounds to make the representation.The Court, unsurprisingly, was unimpressed with the latest manifestation of a century of claims that apricot pips and the avoidance of sugar will prevent or eliminate cancer.
It was also unpersuaded by the 'religion card', commenting -
Mr Jones did not confine the foundation for his claim to reasonable grounds just to the experience of these clients. Nor did he so confine his case as to the truth of representations not qualified by this expression. In each instance, in accordance with the excerpt from his affidavit which I have quoted, he pointed to faith. He made particular reference to Chapter 15, verse 26 in the Book of Exodus in the Bible. As found in The Bible for Today – Contemporary English Version (The Bible Society in Australia Inc), that verse is in these terms, "Then he [the Lord] said, 'I am the Lord your God and I cure your diseases. If you obey me by doing right and by following my laws and teachings, I won’t punish you with the diseases I sent to the Egyptians.'"Neither the ACCC nor this post explicitly stated or implied that Jones engaged in fraud. Logan J commented that -
This case is not to be determined by any extensive theological discourse as to what is meant by this verse. The verse does though admit of an interpretation that the Lord may cure a disease by providing an individual with the occasion and inspiration for a scientific breakthrough. What some might call coincidence, a Christian might very well call an Act of God. Perhaps, for example, the serendipitous sequence of events that saw the great 20th century Scottish biologist and pharmacologist, Sir Alexander Fleming, come to receive medical training, pursue a career in research, witness first hand as an Army medical officer in World War One the deaths from sepsis of wounded soldiers, be thereby inspired during and after that war to direct his research to the subject of how such infections might be cured and then observe and test why a laboratory culture of staphylococci accidentally contaminated by fungus showed signs of bacterial destruction, leading to the discovery of penicillin might be so explained. An additional interpretation of part of the verse might also be that one does not “do right” by engaging in conduct that is misleading or deceptive of one’s fellow man or likely to be so, irrespective of whether there is an Act of Parliament which so provides.
However this may be, faith, Christian or otherwise, does not provide a basis by which, objectively, the truth or otherwise of the admitted representations is to be judged any more than, where a statement as to the possession of reasonable grounds forms an element of the representation, it constitutes a fact sufficient to induce in the mind of a reasonable person a sufficient basis for making that representation. Objectively, to return to the example which I have given, the destruction of staphylococci is attributable to penicillin, not faith.
I observed Mr Jones closely in the course of the trial. That observation, together with my reading of the website and the e-book, the administrative undertaking which he gave to the Commission and the conclusions which I have reached concerning the admitted representations persuades me that he is something of a zealot. I do not mean any disrespect by that description, only that he is full of zeal in respect of the admitted representations. I consider that these proceedings have themselves had an educative effect for him in relation to his compliance responsibilities in respect of statutory consumer protection provisions. It is not a want of understanding of the prohibition of misleading or deceptive conduct on his part that is lacking but rather a want of understanding on his part about cancer and its treatment which is evident to me.The declaratory relief obtained by the ACCC was that Jones had
• engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (Cth) (TPA); andSpecifically, in trade or commerce, and in relation to the supply or possible supply or promotion of the supply of goods and services he had made representations that -
• represented that his goods or services have uses or benefits they do not have in contravention of section 53(c) of the TPA.
• the reduction or elimination of glucose from the diet was effective in the treatment or prevention of cancer, had been proven to bring even the worst cancers under control; and was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy;As part of that declaratory relief the Court did not find that there were reasonable grounds to make those representations.
• taking laetrile was effective in the treatment or prevention of cancer, had been proven to bring even the worst cancers under control, and was (together with an exercise program recommended by Jones) more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy.
It similarly did not find that there was a reliable and current scientific or medical basis to make the representations. Instead
• the reduction or elimination of glucose from the diet was not effective in the treatment of cancer, had not been proven to bring even the worst cancers under control, and was not, together with an exercise program recommended by [Jones], more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy;There were no reasonable grounds for making any of the representations and there were no reliable, current scientific or medical bases for any of the representations.
• the taking of laetrile was not effective in the treatment or prevention of cancer, had not been proven to bring even the worst cancers under control, and was not, together with an exercise program recommended by [Jones], more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy;
Fervent belief does not mean that one can appropriate scientific or medical authority.
The injunctive relief obtained by the ACCC included that Jones is -
restrained permanently, whether by himself or his servants or agents or otherwise howsoever:Jones as respondent is permanently restrained, whether by himself or his servants or agents or otherwise howsoever, from
• in the course of trade or commerce between Australia and places outside Australia, among the States, within a Territory, between a State and a Territory or between two Territories; andfrom 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 Jones first has obtained: from a person then registered with a medical practitioners board to practice medicine in Australia; or 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; and 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 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.
• in trade or commerce involving the use of internet, postal, telegraphic or telephonic services or taking place in a radio or television broadcast;
knowingly being involved with, consenting to or encouraging the making of, by: any person or unincorporated entity: in the course of trade or commerce between Australia and places outside Australia, among the States, within a Territory, between a State and a Territory or between two Territories; or in trade or commerce involving the use of internet, postal, telegraphic or telephonic services or taking place in a radio or television broadcast; or any corporation, in trade or commerce; 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: first has obtained: from a person then registered with a medical practitioners board to practice medicine in Australia; or 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; and 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 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.
