This part 2 of a 4 part blog. Part 1 is here
FEDERAL COURT NOVEMBER 2013
18th November 2013
The barrister appearing for Homeopathy Plus and Ms Sheffield was Mr Marcel White who also represented Australian Vaccination Sceptics Network (AVSN) in their unsuccessful attempt to have a direction by NSW Fair Trading to change their name overturned. The barrister appearing for ACCC was Ms R Higgins.
I wasn’t in court to keep a record of proceedings on Monday 18th November 2013. My understanding is that The Applicant – ACCC commenced presenting their case. Expert witnesses who gave evidence on that day were:
- Dr Nigel William Crawford, Medical Head of Immunisation Services (which recommends and administers vaccines to high-risk children, including whooping cough, according to the schedule) and a Paediatrician at the Royal Children’s Hospital in Melbourne; and
- Professor Kerryn Phelps AM, General Practitioner, who was the President of the Australian Medical Association from 2000-2003, and the President of the Australasian Integrative Medicine Association from 2009-2012.
Their evidence is referred to many times in the judgment
19th November 2013
Dr Nicholas Wood is a paediatrician at Westmead Childrens Hospital and appeared as an expert witness on behalf of ACCC. He was asked by ACCC to explain his role and that of National Centre for Immunisation Research and Surveillance (NCIRS). He outlined how NCIRS is funded and its role in surveillance as well as clinical and social research. Ms Sheffield appeared quite interested in the scope of work conducted by NCIRS.
Dr Wood explained in great detail his knowledge of pertussis and the pertussis vaccine. In response to Mr White’s questions about the “short lived” action of the pertussis vaccine, Dr Wood explained that the term “short lived” isn’t an accurate description but ‘waning levels of protection over time’ would be. He also explained that the National Immunisation Schedule is designed to minimise waning levels of immunity. The other aspect of protection as explained by Dr Wood is that of herd immunity that prevents exposure to the disease. He was then asked by Mr White to explain the “vaccine paradox”.
Dr Wood very clearly explained the complex issue of “vaccine paradox” in lay terms as when the percentage of vaccinated and unvaccinated who will contract a disease is constant, the actual numbers in each category will change according to the percentage vaccinated. Mr White responded to Dr Wood with “So you admit that the majority of vaccine preventable diseases are in the vaccinated!”. It was about then that a sneaking suspicion came over me that Homeopathy Plus might not have much of a case. Dr Wood was then excused. I’m fairly certain Ms Sheffield learnt more that morning about vaccination than she had ever known before.
HOMEOPATHY PLUS’S CASE
The afternoon’s proceedings began with Justice Perry asking Mr White if he would like to make an opening address or rely on his submission. Mr White responded that he’d like to make a short 10 minute address (which actually took 45 minutes). Mr White said that Homeopathy Plus’s case consisted of five main questions that need to be answered:
- Were Homeopathy Plus’s statements about pertussis made ‘in trade and commerce’? Homeopathy Plus says no but the ACCC says yes (more on that later).
- Are vaccine representations (referring to Homeopathy Plus’s claims about the pertussis vaccine) covered by the Australian Consumer Law? Mr White tried to make the claim that because they are part of a wider public policy debate they are not. I thought this was rather a spurious claim because just about everything can be found to be part of a much larger policy debate. As the decision shows, this IS a spurious claim because misleading and deceptive conduct “in trade and commerce” is prohibited, regardless if its part of a public debate or not.
- Can vaccine statements be found to be misleading and deceptive? Mr White claimed that they can’t be for the same reason as #2.
- If a contravention order were found, would that have a stifling effect on other natural therapies? – I found this line of argument as convincing as the argument that Mr White put during the AVSN hearings that they shouldn’t have to change their name because it would be inconvenient.
- If the court finds that they are indeed “trade and commerce” should they need the same level of verification if they are part of a public debate? See #2.
What is expert opinion?
As part of their case Homeopathy Plus submitted an affidavit from Dr Isaac Golden as an expert opinion. Ms Higgins objected to large parts of Dr Golden’s affidavit on the basis of generality, ambiguity and that it was argumentative, and lacked foundation. Justice Perry also expressed concern at the quality (or lack) of most of Homeopathy Plus’s supporting evidence as submitted in affidavits and said she didn’t want to pre-empt her consideration but if a contravention is found, the quality of evidence may inform the penalty. She said that the factual basis and reasoning by which an expert reaches conclusions must be exposed for the court to be able to give any weight to expert opinion and referred to the High Court ruling about Dasreef which is the leading case regarding what constitutes expert opinion.
Mr White argued that Dr Golden’s affidavit should be given weight as an expert, because he has spoken at many conferences (yes really). Justice Perry again referred to Dasreef and noted that she found it puzzling that Dr Golden frequently referenced his own research. Ms Higgins objected to the entire content of Appendix E of Dr Golden’s affidavit because it mostly referred to his own website and book. Mr White then complained that Dr Golden’s affidavit was subject to a far greater level of scrutiny than any of the ACCC’s expert witnesses. This was followed by an awkward silence when everyone seemed to find something else that was suddenly interesting to look at. Mr White pushed it a bit further and said medical science shouldn’t be given preference over the paradigm of homeopathy. Ms Higgins responded that 200 years of history was not a foundation of expertise when the fallacious reasoning is exposed. Ms Sheffield looked crestfallen when she heard that, while I was silently cheering.
I didn’t have access to any of the submissions or affidavits because I wasn’t part of the proceedings but simply an observer.
The day ended with Justice Perry saying she will rule on Appendix E of Dr Golden’s affidavit tomorrow.
Disclaimer: This post contains personal views and reflections about the case and the hearing. It should not be relied upon as legal opinion.