Australia: Reasonable Readers, Disclaimers, And Permanent Injunctions

Last Updated: 15 April 2009
Article by Jocelyn Kellam

Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277

  • Who is the "ordinary" or "reasonable" consumer?
  • Ordinary readers of the Northern Beaches Weekender do not have an appreciation of what study would be needed to obtain a PhD.
  • A post-advertisement disclaimer was ineffective to correct any misleading impression.
  • A permanent injunction to restraining misleading and deceptive conduct held appropriate.

This decision is interesting not because of Judge McCallum's finding that the defendant had engaged in misleading and deceptive conduct. Rather, it illustrates the importance for litigants of never assuming that something does not need to be proved. It also shows that a defendant's past conduct is relevant to orders made under the Trade Practices Act.

The misleading conduct

Dr Hunter PhD published advertisements offering a "live blood analysis" and instant test results. He had prior convictions for publishing similar material. The court found that the advertisements were misleading in a number of respects including that defendant misrepresented his qualifications, his ability to diagnose and treat and that live blood analysis was a proper diagnostic tool.

The Commissioner for Fair Trading sought a permanent injunction to prevent Hunter from practising as a naturopath and medical herbalist. Notwithstanding that permanent orders are rare, the court made the order sought holding that there were sufficient grounds to do so.

What is a PhD?

One question that had to be considered by Judge McCallum was whether the relevant audience, that is, the readers of the Northern Beaches Weekender, understood what was a PhD.

Wikipedia tells us that Doctor of Philosophy, abbreviated Ph.D. or PhD for the Latin Philosophić Doctor, meaning "teacher of philosophy", is an academic degree awarded by a university. In some, but not all, countries in the English-speaking world, it has become the highest degree one can earn. The detailed requirements for award of a PhD. vary throughout the world; however, there are a number of common factors. A candidate must submit a thesis consisting of a original academic research thought worthy of publication in a peer-refereed context.

The Commissioner argued that by using the letters PhD after his name Hunter was making a representation that he had undertaken the highest level of academic study and had been awarded a doctorate of philosophy, because that is what those letters denote.

Judge McCallum was satisfied that Hunter's PhD (from the Faculty of Medical Studies, Medicina Alternativa Institute, affiliated to the Open International University for Complementary Medicines) did not entail the level of academic study that a person familiar with postgraduate degrees would expect to have been required.

She was not convinced, however, that readers of the Northern Beaches Weekender would understand that to be the case. She thought that there was no evidence in the proceedings as to the characteristics to be attributed to a representative member of the class of Northern Beaches Weekender readers. While an academic, or a person with experience of postgraduate education, would understanding that the letters PhD refer to a doctor of philosophy and would probably consider it involved the highest level of academic study, it was impossible to what readers of the publication knew without evidence. Judge McCallum thought it was very likely that "some" of the potential readers of the advertisement would have that knowledge, but she was not convinced that the "ordinary" or "reasonable" reader would. Accordingly, she was not satisfied that the advertisements conveyed the representation that the defendant had undertaken the highest level of academic study and had been awarded a doctorate of philosophy.

The disclaimer

Leaving aside whether readers of the Northern Beaches Weekender understood what a PhD was, Judge McCallum found that the advertisement was misleading in that it misrepresented the defendant as medically qualified and as a doctor.

Hunter however raised as a defence that he had clients attending his practice sign a disclaimer. The disclaimer stated that what was provided was an information service, should only be viewed as opinion, and should not be used for diagnosing or treating a health condition, symptoms or a disease. It also included a statement "I am fully aware that Jeremiah Hunter has explained to me in full detail that he is "not a medical practitioner" and his doctorate expresses nutritional, herbal and dietary education only". Hunter's argument was apparently that any misrepresentation conveyed by the advertisement was corrected by the disclaimer. This proposition was rejected. "It is no defence to an allegation of misleading advertising to say that customers are disabused of any misrepresentation when they contact the promoter."

The injunction

The Commissioner sought a permanent injunction prohibiting Hunter from practising as a naturopath and medical herbalist forever. The Commissioner argued that the order should be made because Hunter was unwilling or unable, in the provision of those services, to conform to the norm of conduct imposed by the Fair Trading Act. There was nothing in the evidence to suggest that would change.

Hunter submitted that such an order would effectively mean that $70,000 worth of education would be wasted. He submitted that there should be no order restraining him from describing himself (and presumably practising) as a naturopath, medical herbalist, nutritionist, massage therapist, hydrotherapist and iridologis.

Judge McCallum clearly regarded the making of such an order as a serious matter, although it could be varied by a subsequent application if Hunter's circumstances changed. Whether it was necessary was to be measured against what was necessary to protect the public.

In reaching her decision that such an order was appropriate, she placed weight on the defendant's prior convictions, including 25 offences arising out of the conduct of his business as a naturopath, in proceedings brought by the Medical Board, and his expulsion from the Australian Traditional Medical Society. Judge McCallum considered that the prior convictions demonstrated that Hunter had been on notice for several years that his representations were false and contravened the Fair Trading Act. She also thought that it was a matter of concern that since being convicted under his former name in the earlier proceedings, Hunter had changed his name and proceeded to publish very similar advertisements.

Judge McCallum also took into account that Hunter had no apparent comprehension as to why it was wrong to publish the misleading advertisements the subject of his earlier convictions. He had excessive confidence in his own abilities and a lack of appreciation of the shortcomings of his education. There being no indication that the position was likely to change, the court was satisfied that it was also appropriate to grant the injunction on a permanent basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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