Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) ABN 97 113 678 452 [2007] FCA 695

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) ABN 97 113 678 452 [2007] FCA 695 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v NUERA HEALTH PTY LTD (IN LIQUIDATION) ABN 97 113 678 452, NUERA CARE CENTRE PTY LTD (IN LIQUIDATION) ABN 31 113 682 152, ALTERNATIVE CARE FACILITY PTY LTD (DEREGISTERED) ABN 94 110 546 962, NUERA INVESTMENTS PTY LTD ABN 65 113 662 918, NUERA WELLNESS CENTRE PTY LTD ACN 121 679 392, PAUL JOHN RANA, CHRISTOPHER JAMES RANA, MICHEAL LEE RANA AND NUERA WELLNESS CLINIC PTY LTD ACN 121 388 912 VID 1301 OF 2006

RYAN J

9 MAY 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1301 OF 2006

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: NUERA HEALTH PTY LTD (IN LIQUIDATION) ABN 97 113 678 452

First Respondent

NUERA CARE CENTRE PTY LTD (IN LIQUIDATION) ABN 31 113 682 152

Second Respondent

ALTERNATIVE CARE FACILITY PTY LTD (DEREGISTERED) ABN 94 110 546 962

Third Respondent

NUERA INVESTMENTS PTY LTD ABN 65 113 662 918

Fourth Respondent

NUERA WELLNESS CENTRE PTY LTD ACN 121 679 392

Fifth Respondent

PAUL JOHN RANA

Sixth Respondent

CHRISTOPHER JAMES RANA

Seventh Respondent

MICHEAL LEE RANA

Eighth Respondent

NUERA WELLNESS CLINIC PTY LTD ACN 121 388 912

Ninth Respondent

JUDGE: RYAN J DATE OF ORDER: 9 MAY 2007

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1 The First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic) have, in trade or commerce engaged in conduct: (a) that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (Cth); and (b) in connection with the promotion of the supply or possible supply of goods and services or in connection with the promotion of the supply or use of goods and services: (i) that falsely represented that goods were of a particular standard or quality in contravention of section 53(a) of the Trade Practices Act 1974 (Cth); (ii) that falsely represented that services were of a particular standard or quality in contravention of section 53(aa) of the Trade Practices Act 1974 (Cth); (iii) that falsely represented that goods and services had performance characteristics, uses or benefits that they did not have in contravention of section 53(c) of the Trade Practices Act 1974 (Cth); and (iv) that made a false or misleading representations concerning the need for goods and services in contravention of section 53(f) of the Trade Practices Act 1974 (Cth); (c) that was liable to mislead the public as to the nature, the characteristics and the suitability for their purpose of services in contravention of section 55A of the Trade Practices Act 1974 (Cth), by making representations to the effect that the Rana System (as defined in Schedule 1 attached hereto) and/or the NuEra Products (as defined in Schedule 1 attached hereto), or one or more of them: (d) can cure cancer, or reverse, stop or slow its progress (the Cure Cancer Representations); (e) will prolong the life of a person suffering cancer (the Prolong Life Representations); (f) are supported by generally-accepted science (the Scientific Support Representations); (g) can or will, if used by a person who has cancer, cure that person's cancer, or reverse, stop or slow its progress (the Cure Cancer Future Representations); (h) can or will, if used by a person who has cancer, prolong that person's life (the Prolong Life Future Representations); (the representations in paragraphs (g), (h) and (i) are collectively, the Rana Representations and the representations in paragraphs (j) and (k) are collectively, the Rana Future Representations) in one, or more, of the following ways: (i) during at least 2005 and 2006, the Sixth Respondent (Paul Rana), on behalf of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre) and/or the Fourth Respondent (NuEra Investments) made the Rana Representations and/or the Rana Future Representations by way of statements in: (i) promotional seminars presented by the Sixth Respondent to promote The Rana System and/or the sale of the NuEra Products, attended by members of the public, many of whom were suffering from cancer, or who had relatives or friends who were suffering from cancer (the Promotional Seminars); (ii) a brochure provided, or caused to be provided, by the Sixth Respondent (Paul Rana) to attendees at the Promotional Seminars entitled "How To Regain Hope In Your Fight Against Cancer" (the Brochure); (iii) testimonials presented by the Sixth Respondent (Paul Rana) to members of the public at the Promotional Seminars, (either by playing a DVD (Testimonials DVD) or in person or both) of persons who claimed to have overcome their illnesses by using The Rana System and/or the NuEra Products; (iv) private meetings between the Sixth Respondent (Paul Rana) and persons who had attended one or more of the Promotional Seminars (the Private Meetings); (v) promotional written material provided, or caused to be provided, by the Sixth Respondent (Paul Rana) to a person once they had become "a member of NuEra Health" and/or "a member of the Rana System" and/or paid their Membership Fee, including but not limited to, documents entitled The Rana System Research 2005 (10th Edition), The Rana System Instruction Manual 2005 (10th Edition), The Rana System Warnings 2005, The Rana System Mind Over Matter 2005, The Rana System: Daily System Manual (together the Rana Manuals); (vi) a promotional DVD (Introductory DVD) provided, or caused to be provided by the Sixth Respondent (Paul Rana) to a person once they had become a "member of NuEra Health" and/or "a member of The Rana System" and/or paid their Membership Fee; (vii) internet websites, controlled and maintained, or caused to be maintained, by the Sixth Respondent (Paul Rana) on behalf of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), and the Fourth Respondent (NuEra Investments), including: (A) www.nuerahealth.com.au; (B) www.nueracarecentre.com.au; (C) www.nueracarecentre.com; and (D) www.nuerapractitioner.com; and/or (viii) a promotional broadcast published on www.nuerahealth.com.au, www.nueracarecentre.com.au and www.nueracarecentre.com (the Webcast); (j) since about 11 September 2006, the Sixth Respondent (Paul Rana), on behalf of the Fifth Respondent (NuEra Wellness Centre) made the Rana Representations and/or the Rana Future Representations by way of statements in: (i) promotional seminars presented by the Sixth Respondent (Paul Rana) to promote The Rana System and/or the sale of the NuEra Products, attended by members of the public, many of whom were suffering from cancer, or who had relatives or friends who were suffering from cancer (the Promotional Seminars); (ii) a brochure provided, or caused to be provided, by the Sixth Respondent (Paul Rana) to attendees at the Promotional Seminars entitled "How To Regain Hope In Your Fight Against Cancer" (the Brochure); (iii) testimonials presented by the Sixth Respondent (Paul Rana) to members of the public at the Promotional Seminars, (either by playing a DVD (Testimonials DVD) or in person or both) of persons who claimed to have overcome their illnesses by using The Rana System and/or the NuEra Products; (iv) private meetings between the Sixth Respondent (Paul Rana) and persons who had attended one or more of the Promotional Seminars (the Private Meetings); (v) promotional written material provided, or caused to be provided, by the Sixth Respondent (Paul Rana) to a person once they had become "a member of NuEra Health" and/or "a member of the Rana System" and/or paid their Membership Fee, including but not limited to, documents entitled The Rana System Research 2005 (10th Edition), The Rana System Instruction Manual 2005 (10th Edition), The Rana System Warnings 2005, The Rana System Mind Over Matter 2005, The Rana System: Daily System Manual (together the Rana Manuals); (vi) a promotional DVD (Introductory DVD) provided, or caused to be provided by the Sixth Respondent (Paul Rana) to a person once they had become a "member of NuEra Health" and/or "a member of The Rana System" and/or paid their Membership Fee; (vii) internet websites, controlled and maintained, or caused to be maintained, by the Sixth Respondent (Paul Rana) on behalf of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments) and/ or the Fifth Respondent (NuEra Wellness Centre), including: (A) www.nuerahealth.com.au; (B) www.nueracarecentre.com.au; (C) www.nueracarecentre.com; and (D) www.nuerapractitioner.com; and/or (viii) a promotional broadcast published on www.nuerahealth.com.au, www.nueracarecentre.com.au and www.nueracarecentre.com (the Webcast); (k) since about January 2007 the Sixth Respondent (Paul Rana), on behalf of the Ninth Respondent (NuEra Wellness Clinic) made the Rana Representations and/or the Rana Future Representations by way of statements in: (i) internet websites, controlled and maintained, or caused to be maintained, by the Sixth Respondent (Paul Rana) on behalf of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), and the Fourth Respondent (NuEra Investments) and/or the Fifth Respondent (NuEra Wellness Centre) and/or the Ninth Respondent (NuEra Wellness Clinic), including: (A) www.nuerahealth.com.au; (B) www.nueracarecentre.com.au; (C) www.nueracarecentre.com; and (D) www.nuerapractitioner.com; in circumstances where: (l) each of the Cure Cancer Representations was false, in that The Rana System and/or the NuEra Products do not cure cancer, or reverse, stop or slow its progress; (m) each of the Cancer Cure Future Representations was with respect to a future matter, and there were no reasonable grounds for making any of the Cure Cancer Future Representations at the time they were made; (n) each of the Prolong Life Representations was false, in that The Rana System (as defined in Schedule 1 attached hereto) and/or the NuEra Products (as defined in Schedule 1 attached hereto) do not prolong life; (o) each of the Prolong Life Representations was with respect to a future matter, and there were no reasonable grounds for making any of the Prolong Life Future Representations at the time they were made; and (p) each of Scientific Support Representations was false, in that The Rana System (as defined in Schedule 1 attached hereto) and/or the NuEra Products (as defined in Schedule 1 attached hereto) were not supported by generally-accepted science. 2 The Sixth Respondent, (Paul Rana): (a) made the Rana Representations: (b) knew that each of the Rana Representations was false; (c) made the Rana Future Representations; (d) knew that there were no reasonable grounds for making any of the Rana Future Representations; (e) made the Rana Representations and the Rana Future representations on behalf of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Car Centre), the Fourth Respondent (Nu Era Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic); (f) was: (i) an agent or employee; and/or (ii) a director, of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic); and (g) was in effective control of each of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic), and caused one or more of them to make the Rana Representations and the Rana Future Representations, and accordingly, the Sixth Respondent (Paul Rana): (h) in respect of the contraventions of the Act committed by one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic): (i) aided, abetted, counselled or procured that company or those companies to engage in the conduct; and (ii) further or alternatively, was directly or indirectly knowingly concerned in, or party to, that conduct, and the Sixth Respondent (Paul Rana) was thereby a person involved in conduct by the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic) in contravention of sections 52, 53(a), 53(aa), 53(c) and 53(f) of the Trade Practices Act 1974 (Cth) within the meaning of section 75B of the Trade Practices Act 1974 (Cth); and (i) engaged in conduct that was liable to mislead the public as to the nature, the characteristics and the suitability for their purpose of services in contravention of section 55 of the Trade Practices Act 1974 (Cth). 3 The Seventh Respondent (Christopher Rana): (a) was: (i) an agent or employee; and/or (ii) a director, of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic); (b) trained staff at the premises in Port Melbourne, Victoria, from which the NuEra Business (as defined in Schedule 1 attached hereto) was conducted; (c) was present, and assisted, at two or more of the Promotional Seminars at which the Rana Representations and Rana Future Representations were made; and (d) knew that the Sixth Respondent (Paul Rana) was making the Rana Representations and the Rana Future Representations and knew that the Rana Representations were false and that there were no reasonable grounds for making any of the Rana Future Representations, and accordingly, in respect of the contraventions of the Act committed by the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic), the Seventh Respondent (Christopher Rana): (e) aided, abetted, counselled or procured that company or those companies to engage in the conduct; and (f) further or alternatively, was directly or indirectly knowingly concerned in, or party to, that conduct, and the Seventh Respondent (Christopher Rana) was thereby a person involved in conduct by the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic) in contravention of sections 52, 53(a), 53(aa), 53(c) and 53(f) of the Trade Practices Act 1974 (Cth) within the meaning of section 75B of the Trade Practices Act 1974 (Cth). 4 The Eighth Respondent (Micheal Rana): (a) was: (i) an agent or employee; and/or (ii) a director, of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic); (b) conducted thermal imaging tests of clients of one or more of the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments) and the Fifth Respondent (NuEra Wellness Centre) at the premises in Port Melbourne, Victoria, from which the NuEra Business (as defined in Schedule 1 attached here) was conducted; (c) trained staff at the premises in Port Melbourne, Victoria, from which the NuEra Business was conducted; (d) video-taped Promotional Seminars conducted by the Sixth Respondent (Paul Rana); and (e) knew that the Sixth Respondent (Paul Rana) was making the Rana Representations and the Rana Future Representations and knew that the Rana Representations were false and that there were no reasonable grounds for making any of the Rana Future Representations, and accordingly, in respect of the contraventions of the Act committed by the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic), the Eighth Respondent (Micheal Rana): (f) aided, abetted, counselled or procured that company or those companies to engage in the conduct; and (g) further or alternatively, was directly or indirectly knowingly concerned in, or party to, that conduct, and the Eighth Respondent (Micheal Rana) was thereby a person involved in conduct by the First Respondent (NuEra Health), the Second Respondent (NuEra Care Centre), the Fourth Respondent (NuEra Investments), the Fifth Respondent (NuEra Wellness Centre) and the Ninth Respondent (NuEra Wellness Clinic) in contravention of section 52, 53(a), 53(aa), 53(c) and 53(f) of the Trade Practices Act 1974 (Cth) within the meaning of section 75B of the Trade Practices Act 1974 (Cth). 5 The First Respondent (NuEra Health), in trade or commerce, in connection with the supply of goods and services to the late Lesley Bramston, engaged in conduct, that was in the circumstances pleaded in paragraphs 41 to 50 of the Amended Statement of Claim, unconscionable in contravention of section 51AB (1) of the Trade Practices Act 1974 (Cth). 6 The First Respondent (NuEra Health), in trade or commerce, in connection with the supply of goods and services to Olivia Varga, engaged in conduct, that was in the circumstances pleaded in paragraphs 56 to 79 of the Amended Statement of Claim, unconscionable in contravention of section 51AB (1) of the Trade Practices Act 1974 (Cth). 7 The First Respondent (NuEra Health), in trade or commerce, in connection with the supply of goods and services to the late Yvette Otterspoor, engaged in conduct, that was in the circumstances pleaded in paragraphs 85 to 102 of the Amended Statement of Claim, unconscionable in contravention of section 51AB (1) of the Trade Practices Act 1974 (Cth). 8 The First Respondent (NuEra Health), in trade or commerce, in connection with the supply of goods and services to the late Richard Bulzomi, engaged in conduct, that was in the circumstances pleaded in paragraphs 108 to 127 of the Amended Statement of Claim, unconscionable in contravention of section 51AB (1) of the Trade Practices Act 1974 (Cth). 9 The First Respondent (NuEra Health), in trade or commerce, in connection with the supply of goods and services to the late Ronan Feeney, engaged in conduct, that was in the circumstances pleaded in paragraphs 133 to 154 of the Amended Statement of Claim, unconscionable in contravention of section 51AB (1) of the Trade Practices Act 1974 (Cth). 10 The Sixth Respondent (Paul Rana): (a) engaged in the conduct pleaded in paragraphs 41 to 50 of the Amended Statement of Claim in respect of the late Lesley Bramston; (b) engaged in the conduct pleaded in paragraphs 56 to 79 of the Amended Statement of Claim in respect of Olivia Varga; (c) engaged in the conduct pleaded in paragraphs 85 to 102 of the Amended Statement of Claim in respect of the late Yvette Otterspoor; (d) engaged in the conduct pleaded in paragraphs 108 to 127 of the Amended Statement of Claim in respect of the late Richard Bulzomi; (e) engaged in the conduct pleaded in paragraphs 133 to 154 of the Amended Statement of Claim in respect of the late Ronan Feeney; (f) was: (i) an agent or employee; and/or (ii) a director, of the First Respondent (NuEra Health); and (g) was in effective control of the First Respondent (NuEra Health), and caused it to make the Rana Representations and the Rana Future Representations, and accordingly, in respect of the unconscionable conduct in contravention of the Act committed by the First Respondent (NuEra Health) in respect of: (h) the late Lesley Bramston; (i) Olivia Varga; (j) the late Yvette Otterspoor; (k) the late Richard Bulzomi; and (l) the late Ronan Feeney; the Sixth Respondent (Paul Rana): (m) aided, abetted, counselled or procured that company to engage in the unconscionable conduct; and (n) further or alternatively, was directly or indirectly knowingly concerned in, or party to, that unconscionable conduct, and the Sixth Respondent (Paul Rana) was thereby a person involved in the unconscionable conduct by the First Respondent (NuEra Health) in contravention of sections 51AB(1) of the Trade Practices Act 1974 (Cth) within the meaning of section 75B of the Trade Practices Act 1974 (Cth).