Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49 Citation: Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DARRYL PETER JONES

File number: QUD 54 of 2010

Judge: LOGAN J

Date of judgment: 4 February 2011

Catchwords: HIGH COURT AND FEDERAL COURT – Apprehension of bias as a result of past findings as to credit of the respondent – Where application for Judge to not conduct trial was withdrawn – Whether Judge should of his own motion not to conduct the trial – Where no findings as to credit were required to be made in the course of the trial Held: No need in circumstance to refrain from hearing trial PRACTICE AND PROCEDURE – Application by respondent to adjourn the trial – When trial dates had been fixed six months in advance – Where proceeding involved a matter touching on public health – Where respondent also requested that the case be dealt with as soon as possible – Where next available hearing date would have involved considerable delay – Where no offer was made by the respondent to pay the applicant's costs thrown away by any adjournment Held: In the interests of justice not to adjourn the trial EVIDENCE – Affidavit evidence – Admissibility of opinions in articles annexed to affidavit (of the respondent) which were not authored by the deponent – Where applicant would not have had opportunity to cross-examine the authors of the articles in question – Where unfairness to the applicant could have occurred were the opinion evidence to be admitted Held: The articles not be admitted into evidence TRADE PRACTICES – Misleading or deceptive conduct – Whether respondent engaged in misleading or deceptive conduct in the contravention of s 52 or s 53(c) of the Trade Practices Act 1974 (Cth) – Where respondent represented that his "program" could be followed to cure cancer – Where representations were admitted – Where the applicant led medical opinion evidence probative of a conclusion that the admitted representations were misleading or deceptive – Where respondent led neither compelling medical evidence nor evidence to support the kind of intuitive reasoning outlined in EMI (Australia) Ltd v Bes (1970) 2 NSWR 238 Held: The representations were misleading or deceptive