The Victorian Court of Appeal has found that the operators of 'The Hope Clinic', a purported complementary medicine centre, misled and deceived terminally ill cancer sufferers into believing its controversial methods could slow, stop or reverse the progress of cancer, and that the treatments offered at the Clinic had scientific support.
In a unanimous decision, it upheld an appeal by Consumer Affairs Victoria, reversing the decision of the Victorian Supreme Court in April 2011.
The Supreme Court had found that statements made by four respondents - Noel Rodney Campbell, Operation Smile (Australia) Incorporated, Operation Hope (Australia) Pty Ltd (which operates The Hope Clinic at Finchley Avenue, Glenroy) and Hope Research Institute Pty Ltd - were not likely to mislead and deceive.
It found that the statements would be read in the context of concerning non-conventional treatment, and represented honestly held opinions.
The Court of Appeal rejected this, instead finding that the respondents had no rational grounds for making them, and were therefore misleading and deceptive.
It made orders against the four respondents, including that they pay the Director of Consumer Affairs Victoria’s trial and appeal costs.
The Court of Appeal declared that the representations that the following ‘complementary treatments and therapies’ could slow, stop or reverse the progress of cancer and that the treatments offered at the Clinic had scientific support were misleading and deceptive, or likely to mislead or deceive.
- Photo-dynamic therapy.
- Radio-wave therapy.
- High dose intravenous Vitamin C therapy.
- Ozone therapy.
- Electro therapy.
- Insulin potentiation.
- Autologous blood-derived tumour vaccines.
- Sonodynamic therapy.
- Ketogenic diet.
The Court of Appeal declared that Mr Campbell and Operation Smile engaged in misleading and deceptive conduct under the Fair Trading Act 1999, by falsely claiming on the website www.smile.org.au that the clinic’s treatments, services, techniques or procedures:
- can cure cancer, or reverse, stop or slow its progress
- can prolong the life of a person suffering from cancer
- can benefit cancer sufferers
- are supported by generally accepted science; and
- are evidence-based therapies.
They must publish a public notice prominently on their website, with the words ‘Misleading conduct about our services - please read the important notice ordered by the Supreme Court of Victoria'.
In February and March 2010, Consumer Affairs Victoria wrote to Mr Campbell requesting him to remove certain representations from The Hope Clinic's website and to provide written undertakings about the clinic’s conduct.
After he declined to provide the requested undertakings, Consumer Affairs Victoria commenced action in the Supreme Court in May that year, securing an interlocutory injunction against The Hope Clinic and Mr Campbell.
In February 2011, an eminent oncologist provided expert testimony in the Supreme Court, on behalf of Consumer Affairs Victoria, that Mr Campbell’s methods were not supported by generally accepted science and were not evidence-based therapies.
View the full judgment
Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Others - Austlii website