Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441

Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441

NRM breached paragraph 9(c)(i) of the April 2015 orders and is guilty of contempt by deliberately causing to be broadcast a series of radio and television advertisements and by publishing website content which represented to patients or prospective patients the efficacy of NRM treatments, contrary to clear and unambiguous orders. The court found the terms 'prospective patient' and 'efficacy' were clear, the statements were made to the relevant class, and most challenged statements constituted statements as to efficacy. However, NRM did not breach 9(c)(iii) as the requisite elements were not both present in the statements.

Jurisdiction
Australia
Judgment Date
17 December 2015
Procedural Posture
Civil Contempt Application / Post Judgment, Determination of Contempt and Listing for Penalty Hearing
Outcome
Declarations of contempt granted against the sixth and seventh respondents (NRM). Further hearing to be listed regarding fine and costs.
Legal Topics
['breach of Court Orders' 'efficacy Representations' 'interpretation of Injunctions' 'direct Marketing and Advertising in Healthcare']
['competition and Consumer Law' 'contempt of Court'] ['breach of Court Orders' 'efficacy Representations' 'interpretation of Injunctions' 'direct Marketing and Advertising in Healthcare']

Case Brief

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Procedural Posture

Civil Contempt Application / Post Judgment, Determination of Contempt and Listing for Penalty Hearing

Legal Issues

  1. 1 ['Whether the orders were clear and unambiguous and capable of founding a contempt charge' "Whether statements made by NRM, via advertisements and website, constituted statements as to the 'efficacy' of treatments in breach of court orders" "Whether such statements were made to 'patients or prospective patients'" "Whether both elements of 'need for NRM treatments' and 'adverse consequences' were present in alleged breaches of order 9(c)(iii)"]

Ratio Decidendi

NRM breached paragraph 9(c)(i) of the April 2015 orders and is guilty of contempt by deliberately causing to be broadcast a series of radio and television advertisements and by publishing website content which represented to patients or prospective patients the efficacy of NRM treatments, contrary to clear and unambiguous orders. The court found the terms 'prospective patient' and 'efficacy' were clear, the statements were made to the relevant class, and most challenged statements constituted statements as to efficacy. However, NRM did not breach 9(c)(iii) as the requisite elements were not both present in the statements.

Court Disposition

Declarations of contempt granted against the sixth and seventh respondents (NRM). Further hearing to be listed regarding fine and costs.

Orders

  • ['Declarations that NRM is guilty of contempt by breaching paragraph 9(c)(i) of the April 2015 orders.' "Applicant's interlocutory application to be listed for further hearing on fine and costs."]