Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412 Citation: Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v HOMEOPATHY PLUS! AUSTRALIA PTY LIMITED and FRANCES MERCIA SHEFFIELD

File number: NSD 256 of 2013

Judge: PERRY J

Date of judgment: 22 December 2014

Catchwords: CONSUMER LAW – Whether misleading, deceptive or false representations made on website about the effectiveness of whooping cough vaccine – Means of assessing efficacy and effectiveness of vaccine – Evidence based medicine – Bearing of context on characterisation of representations – Whether representations misleading, deceptive or false when read in context of an epidemic – Whether representation that vaccine was "short-lived" was misleading, deceptive or false given vaccine's propensity to wane over time. CONSUMER LAW – Whether misleading, deceptive or false representations made about the effectiveness of homeopathic treatments for the prevention of whooping cough – Whether representations about effectiveness of homeopathic treatments fall to be assessed against a homeopathic epistemological framework or orthodox medical science – Whether representations imply a reasonable basis in medical science. CONSUMER LAW – Whether disclaimers erase misleading, deceptive and false nature of representations – Where disclaimer did not clearly bring the true position to the public's attention. CONSUMER LAW – Whether representations made in trade or commerce – Whether or not carried on for profit – Where representations said to be contribution to public debate or educational – Whether conduct has requisite commercial or trading character – Where conduct has dual character – Where representations not presented overtly in form of an advertisement. EVIDENCE – Where expert reports do not comply with s 79 of the Evidence Act 1995 (Cth) – Precondition to admissibility of expert evidence – Failure to provide reasons for opinion and demonstrate connection with specialised knowledge – Whether the manner in which material might be presented in the field of expertise is relevant – Duty of legal representatives to ensure expert reports comply with rules of evidence and court practice directions.