More v Ford[2018] QCAT 19

REASONS FOR DECISION

The Applicant

1. [1]
   Donovan Rock More, trustee of the Cleopatra Skin Discretionary Trust, promotes and provides alternative health and wellbeing education and materials to members of the public in trade and commerce.  In this decision, I will refer to him as “Dr More” in the qualified sense that he holds an online PhD in religious studies. Dr More used the title DR (DR More) in his course literature and on the Trust’s website until early 2017.
2. [2]
   Dr More is not registered as a health practitioner with the Australian Health Practitioner Regulation Agency (“AHPRA”). He was not so registered in the period of dealings the subject of this case. Whether he has ever been so registered is unclear. He is self described as a “healing professional” in an AON insurance policy that he holds so that he can, he says, “hire halls that don’t have insurance.”^[1] He says he is a retired naturopath and that he “teaches.” He is not subject to regulatory oversight.
3. [3]
   Dr More is not, in the circumstances to which I refer in this decision, a person who acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce^[2] within the meaning of section 2(a) of the definition of a trader in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). He is a trader as defined in that section. The Tribunal has jurisdiction in the occupational sense for any consumer claim made against him.

The Minor Debt Claim

4. [4]
   Dr More sues Paula Kaye Ford (“Ms Ford”), a consumer of his education and materials, for $1,740.00 in minor debt claim Q 27/17 filed at the Tribunal’s Coolangatta Registry on 23 March 2017. That amount represents the balance of fees outstanding for three weekend seminar courses and materials supplied by Dr More to Ms Ford on the Gold Coast in March 2015.
5. [5]
   Insofar as may be of jurisdictional relevance, I note that Dr More resides at Cabarita Beach in New South Wales and Ms Ford resides at Mt Tamborine in the Gold Coast hinterland.
6. [6]
   Ms Ford attended a free introductory seminar with Dr More in 2015 at Southport, Queensland. She then enrolled at Southport for the seminars with Dr More on 8 March 2015, 21 March 2015, and 28 March 2015 respectively, for a discounted total fee of $3,600.00. Dr More conducted the seminars at Southport.
7. [7]
   The seminar enrolments are the contracts on which Dr More sues. His cause of action in all material respects, other than as to the place for payment of the seminar fees to him, arose in Queensland.  Therefore, in the transactional sense, his minor debt claim is within the Queensland Civil and Administrative Tribunal’s jurisdiction to hear and determine.^[3]
8. [8]
   For completeness, I note that Ms Ford signed agreements in writing at Southport with Dr More’s agent, Ezypay, by which she contractually bound herself to make periodic instalment repayments of the course fees. She could not afford to pay them at the time. She agreed to pay Ezypay’s administration charges as well.
9. [9]
   Ezypay deducted the instalments by automatic debit from Ms Ford’s bank account in Queensland and paid them to Dr More.

Response to the Minor Debt Claim

10. [10]
    Ms Ford filed a Response on 4 May 2017 in Q 27/17. She seeks orders for dismissal of Dr More’s minor debt claim and the refund of $1,860.00 previously paid to him through Ezypay for the seminars and materials. The refund claim is in the nature of a counter-application. That presented a procedural problem at the time.
11. [11]
    The procedural difficulty was that a counter-application cannot be made to a minor debt claim. A counter-application may be filed in any Tribunal claim category other than in response to a minor debt claim where it is precluded by an inconvenient quirk of the Tribunal’s Rules.^[4]
12. [12]
    To avoid injustice, circumvent the procedural anomaly, ensure procedural fairness, and assist in the disposition^[5] of competing claims between the same parties arising out of the same transaction before the same adjudicator, on the first hearing day I directed that Ms Ford file a consumer claim and ordered the filing of affidavit material by the parties before adjourning the hearing.^[6]

The Consumer Claim

13. [13]
    In her consumer claim Q 60/17 filed at the Tribunal’s Coolangatta registry on 27 June 2017, Ms Ford sues Dr More, trustee of the Cleopatra Skin Discretionary Trust, as a trader, for refund of $1,860 paid to him through the agent, Ezypay, for the weekend seminar courses and materials.
14. [14]
    Ms Ford says^[7] that the refund should be ordered because:

1. She entered into the seminar contract/s on the basis of fraud and misrepresentation of Dr More;
2. Dr More claimed that certain “stones” supplied by Dr More would cure all manner of ailments;
3. The stones did not cure any of her illnesses which included migraines, back pain, neck and shoulder pain, chronic fatigue-type symptoms, adrenal exhaustion and depression;
4. There is documented evidence that Dr More’s claims about the stones were not realised;
5. There have been a number of complaints lodged with the Therapeutic Goods Administration (“the TGA”) against “this healing device;”
6. Dr More is under investigation by the TGA;
7. Dr More, in promoting the contract/s, represented himself as a medical Doctor, calling himself Dr Donovan More;
8. On his website www.completefamilyhealing.com/sexy_vegan, Dr More says: “Hi!  My name is Doctor Donovan R More ....”
9. Dr More does not hold credentials as a medical doctor;
10. She was led to believe that Donovan More had medical qualifications.

15. [15]
    That, in combination with the submissions in Ms Ford’s document entitled “Presentation of Evidence” which include that Dr More acted unconscionably, defines the basis of Ms Ford’s case against Dr More.

The Response to the Consumer Claim

16. [16]
    Dr More’s Response^[8] to Ms Ford’s consumer claim is really in the nature of a counter-application, looking to its substance rather than the form used.
17. [17]
    Consistently with my duty to act with as little technicality as a proper consideration of the matter permits^[9] and notwithstanding Dr More’s failure to use the correct form and pay the appropriate filing fee, currently $326.80, I therefore treat his Response as though it were a counter-application to Ms Ford’s consumer claim and waive the requirement for filing a formal counter-application.
18. [18]
    In his Response, Dr More wants the Tribunal to order that:

1. Ms Ford pay “all costs” in this case;
2. Ms Ford pay “punitive damages” for public and professional defamation;
3. Ms Ford be “fined” $1000.00 for each point of perjury in her “spurious allegations;”
4. Ms Ford pay Dr More $24,999.00 for all “costs, defamation and work done replying to her;”
5. Ms Ford pay all outstanding invoices for the “natural health education course.”^[10]

19. [19]
    Dr More’s reasons^[11] for considering that these orders should be made are as follows:

1. He says that Ms Ford lied in documents, defamed him, and cost him in time, mental and emotional stress and trauma;
2. He says that Ms Ford colluded with others who swore affidavits in a conspiracy to defraud the Cleopatra Skin Discretionary Trust of monies owed to it;
3. He says that Ms Ford owes the Trust the outstanding balance of the course fees;
4. He says that Ms Ford fabricated her case from a non-existent website page and a non-existent TGA investigation;
5. He says that Ms Ford “loved” the results she got from what she learned but still refuses to pay for the course.

20. [20]
    These assertions define Dr More’s defence to Ms Ford’s consumer claim and his counter-application against her.

Summary disposal

21. [21]
    I will dispose of the following of Dr More’s claims and assertions in the Response, at the outset.
22. [22]
    As to item 1) (above) of the Orders sought, the only recoverable costs,^[12] in the event that the Response (Counter-application) succeeded, would be the filing fee^[13] that Dr More should have paid on a counter-application, but did not. No costs, whether they be the filing fee or any other costs, are recoverable by him.
23. [23]
    Regarding item 2) of the Orders sought, as I explained to Dr More in the course of the hearings, the Tribunal has no jurisdiction to entertain a claim for damages for defamation. The Tribunal’s minor civil dispute jurisdiction is limited to the claim categories set out in section 12(4) of the QCAT Act.
24. [24]
    Even if the Tribunal did have jurisdiction to adjudicate defamation claims, which is not the case, it is trite law that defamatory statements made during the course of a court case are not actionable for damages.
25. [25]
    As to item 3) of the Orders sought, I explained to Dr More during the hearings that I have no power to find a witness guilty of perjury and fine the person as he wants done. I may accept or reject the evidence of a witness but I have no prosecutorial power for an offence against the QCAT Act. That lies elsewhere.
26. [26]
    As to item 4) of the Orders sought, I refer to what I have said^[14] concerning items 1) and 2) of the Orders sought. No compensatory orders will, therefore, be made.
27. [27]
    On the other hand, as to item 5) of the Orders sought, whether or not Ms Ford has a liability to Dr More as alleged is a legitimate issue for adjudication and I will deal with it later.
28. [28]
    Consequently, some of Dr More’s reasons given for the requested Orders may also be summarily disposed of at this point.
29. [29]
    As to reason A) (above), I refer to, and repeat, what I have said with respect to items 2), 3) and 4) of the Orders sought. This Tribunal has no jurisdiction to entertain allegations and claims for compensation for alleged personal injury.^[15]
30. [30]
    As to reason B), concerning an alleged conspiracy, I will, for the following reasons, not make such finding.
31. [31]
    Dr More alleges a conspiracy to defraud the Trust of its revenue from debtors.^[16] That is a serious allegation to make.
32. [32]
    It is an equally serious matter then to fail to prove the allegation of criminal wrongdoing, which usually attracts indemnity cost orders against the person making the unjustified allegation. However, in minor civil disputes, the Tribunal has no power to make such a cost order.
33. [33]
    The standard of proof required in respect of allegations of fraud or dishonesty is the civil standard, proof on the balance of probabilities.^[17] However, as Justice Dixon, in the High Court decision in Briginshaw v Briginshaw ^[18] said:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

34. [34]
    The Briginshaw test was enunciated in 1938. It still applies today in Australian Courts and Tribunals exercising civil jurisdiction. The test requires, before finding fraud or dishonesty, that a tribunal:

... feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality ... (A)t common law ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.^[19]

35. [35]
    I feel no actual persuasion that the conspiracy alleged by Dr More occurred. My reasons are as follows.
36. [36]
    A number of witnesses, formerly attendees of Dr More’s seminar courses, to whom he made representations and supplied goods, feel aggrieved. As such, they have provided affidavit evidence in support of Ms Ford.  So have a number of witnesses in support of Dr More. There is nothing sinister in so doing.
37. [37]
    I accept that Dr More’s reputation is at stake in this case. However, that is no basis upon which to conclude that these witnesses are in criminal conspiracy to defraud the Trust as he alleges. That one or the other or all of Ms Ford’s witnesses might themselves withhold payments and/or make claims in due course is not to the point. That may or may not occur and each case turns on its own facts.
38. [38]
    Dr More repeatedly calls Ms Ford’s witnesses, and Ms Ford, liars, particularly in reference to certain course testimonials given by them, recorded on video at a seminar and posted on the Trust website. Subjectively labelling witnesses liars is of no probative value in itself. Dr More says that their video statements contradict their evidence and prove the lies. I will address the video issue, insofar as it relates to Ms Ford, later.
39. [39]
    In principle, there is nothing conspiratorial in a group of aggrieved attendees individually airing similar grievances to those of Ms Ford in affidavits filed in these Tribunal proceedings. Dr More wants this evidence excluded because, he says, it is “tainted by perjury.”^[20] I do not accept that is the case.
40. [40]
    Of course, whether, and to what the extent, the evidence of these witnesses is credible, and what it proves, is another matter.
41. [41]
    No case would ever come before the Tribunal if a group of aggrieved witnesses providing evidence in support of a fellow consumer amounts to a criminal conspiracy of the sort Dr More alleges. That would defeat the public interest by frustrating scrutiny and accountability of litigants before the law.
42. [42]
    Also, and in any event, this Tribunal has no criminal jurisdiction to prosecute an alleged conspiracy if one had occurred.
43. [43]
    As to reason C), that, of course, is the nub of Dr More’s minor debt claim and begs the question, is Ms Ford liable to him for the balance of the outstanding account? That is a point of legitimate contention so I do not deal with it here.
44. [44]
    As to reason D), I do not accept that Ms Ford has fabricated her evidence and perjured herself. I will elaborate later.
45. [45]
    As to reason E), I accept that a video testimonial of Ms Ford on a USB Stick that is in evidence, which I have viewed, might arguably be said to support Dr More’s statement that she “loved the results of what she had learned.” However, the video needs to be considered in the context in which it came into being. I will consider that later.

Facts and Evidence

Ms Ford’s medical condition

46. [46]
    Ms Ford has suffered from debilitating migraine headaches for many years. Her marriage of 34 years broke down in 2014. She began seeing a Clinical Psychologist, Dr Elsa Herbst, who is registered as a health practitioner with AHPRA, and a General Practitioner, Dr Melanie de Silva, for emotional distress in 2014 and has continued to see them.
47. [47]
    She relies on medical reports from each of them.^[21]

Report of Dr Herbst

48. [48]
    In her medical report dated 30 May 2017, Dr Herbst^[22] says that she has been seeing Ms Ford for psychotherapy for a Major Depressive Disorder and anxiety since August 2014 and that Ms Ford also suffers from kidney infection, migraines and severe neck pain.
49. [49]
    Dr Herbst used Cognitive Behavioural Therapy, Assertiveness Training, and Mindfulness Integrated Cognitive Behavioural Therapy to address Ms Ford’s low mood and anxiety symptoms. The last therapy session occurred on 24 February 2016.
50. [50]
    Dr Herbst reports that Ms Ford was, and still is, very vulnerable emotionally. Ms Ford informed Dr Herbst that she was convinced by an ‘alternative healer’ to sign up and pay for seminars on an alternative healing method that would cure all her ailments and symptoms.
51. [51]
    Dr Herbst says that, according to Ms Ford, the alternative health healer’s claims were unfounded because the treatment did not bring relief or healing and, being a single woman, Ms Ford was vulnerable, an easy target to be taken advantage of.
52. [52]
    Dr Herbst says that she experienced Ms Ford throughout therapy as an honest and reliable person dedicated to medical therapy and that Ms Ford takes responsibility to try and improve her health and to live as positively and meaningfully as possible.
53. [53]
    Dr Herbst recommends further psychotherapy to process the traumatic experience and management of the stressful situation of Ms Ford going to court using all support available.

Report of Dr de Silva

54. [54]
    Dr de Silva^[23] has also been seeing Ms Ford since 2014 for medical treatment. She refers to Ms Ford having seen an ‘alternative therapist’ and that there is no evidence, of which Dr de Silva is aware, that the type of therapy offered by that therapist would help in treating her listed conditions.
55. [55]
    Dr de Silva says she thinks that Ms Ford was ‘taken advantage of.’

The Medical Conclusions

56. [56]
    Of course, neither Dr Herbst nor Dr de Silva are privy to the evidence as it unfolded in these proceedings. Neither of the doctors relay what exactly Ms Ford told them and Dr de Silva does not condescend to any particularity in respect of Dr More’s therapeutic literature or the statements with which she disagrees.
57. [57]
    The conclusions of Dr Herbst and Dr de Silva regarding Dr More’s conduct and therapies therefore carry no evidentiary weight for purposes of these proceedings in the Tribunal.
58. [58]
    However, Dr Herbst and Dr de Silva are well qualified as treating practitioners to give evidence of Ms Ford’s diagnosed psychological and medical condition before and after attending Dr More’s courses.
59. [59]
    I accept the evidence of Dr Herbst and Dr de Silva and find that Ms Ford was no better after Dr More’s seminar courses, teachings and remedial therapies, than before undertaking them. Dr More did not produce any expert evidence from a practitioner registered under AHPRA to contradict them on that pivotal issue.

Prelude to enrolment

60. [60]
    Ms Ford was invited to the free seminar conducted by Dr More at 11 Lawson Street, Southport, Queensland, in March 2015. Approximately twenty five people attended. Attendees included people who were ill and desperate for a cure, as was Ms Ford,^[24] and course promoters who proclaimed the effectiveness of Dr More’s “magical stones.”
61. [61]
    Each attendee received a small packet of “stones” from Dr More. He explained that it would be necessary to sign up for the next seminar to obtain more “magical” stones.’^[25] If they did not, they would not get the stones. The stones were a component for achieving the seminar objectives, viz. a return to health and wellbeing, for which further seminar enrolment for a fee was required.

Enrolment

62. [62]
    Ms Ford enrolled for a seminar special for a “Back to Wellbeing Pack” and a seminar special for an “Instant Family Health Healing Pack.”
63. [63]
    Dr More refers to these documents in his affidavit sworn 30 August 2017 at paragraph 353 on page 12 as Exhibits 11 and 12. He filed them and other exhibits with the Tribunal on 19 July 2017. The first pack included an instant family wellbeing pack “free.” Each pack comprised various pack segments at difference prices.
64. [64]
    Each of the packs, by reference to their title and description, held out a return to health and wellbeing in undertaking the courses^[26] by applying Dr More’s learning and modalities.

Dr More’s oral evidence

65. [65]
    In sworn evidence at the hearing on 6 September 2017, Dr More admitted that the packs represented, expressly or at the very least, implicitly, a return to wellbeing and instant family healing.^[27] However, he said that Ms Ford did not get the benefits because she did not do what he had asked.^[28] Ms Ford swore that she followed the instructions.^[29] I accept her evidence that she did.
66. [66]
    Dr More said in sworn evidence on 6 September 2017 that each attendee at the first seminar received a free “mojo stone” as part of the kit for which they had paid, and that the mojo stone was a convenient, but not important, way of handling the technique of “samyama.”^[30]
67. [67]
    I referred Dr More to Exhibit 35 of his exhibits, his leaflet or brochure, and that it said, “Your mojo stone holds your supercharged affirmation so you can use your hands freely or go to sleep.”^[31] I asked him whether the stone was essential to the efficacy of his system. He answered that it was “convenient.”
68. [68]
    Dr More said that each mojo stone had many limitations^[32] that were not set out in the brochure but that there were many types of mojo stones.^[33] He said that the brochure very clearly stated the limitation in the following terms: “Use this affirmation, and you can hold that with the mojo stone.”^[34]
69. [69]
    I asked Dr More whether the stone continued to hold an affirmation. He said: no, it didn’t do so when removed from the body and nothing resided  in the stone other than:

... a field that will help you do that. What resides is your unconscious mind. It’s about how you remain effortlessly concentrated on something with your unconscious mind to change your biology. That’s what I teach.^[35]

70. [70]
    In other words, as I understand Dr More’s evidence, using a particular stone with a particular affirmation in accordance with instructions will, through the unconscious mind, change one’s biology to achieve the particular health and wellbeing outcome represented.
71. [71]
    Dr More swore that he has extensive biological knowledge^[36] but he provides no particularity to the general statement and does not explain how, and what, therapeutic biological change occurs with respect to each stone and affirmation to achieve the outcome.
72. [72]
    Later, in response to my reference to Dr More’s contractual promise being more than just education, i.e. the promise of a return to wellbeing and instant healing, Dr More agreed and said: “Yes, and she got that.”
73. [73]
    Compare, with that evidence, Dr More’s evidence, to which I referred earlier, that Ms Ford did not get the health benefits because she did not do what was asked. There is a contradiction.
74. [74]
    When I pointed out to Dr More that Ms Ford said that she didn’t, and that I could accept her evidence, Dr More said: “It’s a lie. That’s all I can say.”^[37]

The Stones

75. [75]
    In sworn evidence at the hearing on 1 November 2017, Dr More said that the stones are made up of 16 different earth elements with seven different fields, that they “are very special (sic) stones.”^[38] He did not explain what these fields were, how they functioned, and what therapeutic objective they achieved.
76. [76]
    He said that:

They’re not natural stones^[39] ... and are made by Terry Downey in New Zealand from sources around the world^[40] in different places ... but it depends where they zap them, and many of them are zapped all in one place.^[41]

Exhibit A1 – Returned Materials and Termination Letter

77. [77]
    At the hearing on 1 November 2017, Dr More put into evidence a carton box of material, including the stones which Ms Ford previously acquired from him and associated stone literature published by Dr More, which Ms Ford had returned to him.^[42]
78. [78]
    A letter from Ms Ford dated 15 November 2016^[43] accompanied the box of returned material and goods. It read as follows:

Please find enclosed the following items:

1. All stones in my possession.
2. All educational material provided by you.

Pursuant to any agreement with you and under the EZYPAY plan.

I have had no use or benefit (sic) of these items.

I therefore give you 7 days notice of my intention to terminate any agreement with you and will be contacting EZYPAY within the next two days to terminate the payments.

As the next payment is not due for a further 10 days, you are advised that no further payments will be made.

79. [79]
    By this repudiatory letter, Ms Ford clearly said that she had received no benefit from the items. Dr More accepted her return of the carton box and contents. That explains how the box came to be tendered in evidence by Dr More at the final hearing on 1 November 2017.

The Returned Leaflets/Brochures

80. [80]
    The carton box contained a number of returned stones, 39 in plastic boxes and at least 15 in plastic bags, with associated leaflets. The leaflets (or brochures) returned by Ms Ford in the box each refer to a particular accompanying stone, a related “Super Affirmation” and the therapeutic effect when correctly used.
81. [81]
    The leaflets, in many cases multiples of them, are each described with reference to a therapeutic supercharged affirmation outcome, and related price. As to price for various supercharged affirmation leaflets and stones, see for example the leaflets marked:

#1 $97, #2 $67, #3 $137, #4 $97, #5, $77, #6 $87, #7 $77, #8 $67,
#9 $97, #10 $137, #11 and 12 $47 each, #13 $387, #14 and #16 $47 each, #17 $97, # 0.1 $87, #0.2 $207, #0.3 $57, #0.4 $87, #0.5 $57, and #0.6 $87.

82. [82]
    Other supercharged affirmation leaflets with respect to associated stones and claimed outcomes (bracketed below) are as follows:

#A (Peace) $77, #B (Love) $57, #C (Purity) $77, #D (Truth) $197, #E (Beauty) $207, #F (Grace) $207, #G (Wisdom) $57, #RA (Grounding) $427, #RB (Glowing) $77, #LA (Observing) $57, #LB (Shining) $57, #LL (Participating) $397, and #RL (Leading) $137.

83. [83]
    Dr More swears that there are over 80 stones, each with its own limitations of useful affirmations it can hold.^[44]
84. [84]
    Dr More admits that he claims that affirmations heal specific conditions when correctly used.^[45]

The Leaflet Representations

85. [85]
    Dr More, who is photographed, identified and described in all leaflets as “DR More, international author, speaker and singer, and retired naturopath,” in respect of the affirmations, stones and claimed results, states that: “This works brilliantly.”

Examples

86. [86]
    The following are some examples of affirmations and stones which Dr More says work brilliantly to produce the claimed results.
87. [87]
    Leaflet #7 is a Money Stone leaflet. It states:

Wiser wealth and richer income streams. This gives you seven special fields of awareness. You simply use it to cultivate an affirmation until you are fully energised with that affirmation again.

It’s a Money StoneTM – a disc shaped object which gives you 7 special fields of awareness. And because of your Money TardisTM you can use it all night long. That gives you 6-8 hours of financial attitude transformation a night or over 40 hours of financial attitude transformation a week!

It’s how you do it that counts. Your Money Stone holds (sic) affirmations such as “Money comes into my business repeatedly now” .... “Wealth improves rapidly now” ... “Every day in every way I get wealthier and wealthier.

88. [88]
    The leaflet instructs the use of the Money Stone in the following way:

How to use your Money Stone. Tape the BLUE (-) face of your Money StoneTM onto your navel. Sing the affirmation “Wealth rises rapidly now” down scale, down volume and down speed – that is from high to low, loud to soft and fast to slow. Do this once only, closing your eyes on the word “now.” This Mojo Affirmation will then access your Superconscious Mind for a more centred, more powerful, more vibrant you. Your Superconscious Mind is far more powerful than your conscious mind, so after a while success will come effortlessly...

89. [89]
    The Supercharged Affirmation leaflet #15 says as follows:

Are you interested in boosting your family’s wellbeing at home, FOR FREE, for the rest of your life? It’s easy! Simply train your Unconscious Mind to optimise your body’s physical function ... (it) governs your pain, ache and discomfort, sag, tiredness and fatigue, cramps, stress and tension, and your posture right now.

How you train your Unconscious Mind. Essentially you sing a simple affirmation. FREE Bonus. To thank you for your commitment to natural health, when you buy # Supercharged AffirmationTM you will receive your convenient #15 Singing StoneTM.

90. [90]
    Supercharged Affirmation leaflet #0.6 concerning the Sixth Chakra makes similar claims, though not in respect of money.
91. [91]
    A “Wealth Creator” leaflet claims that:

In the first few minutes of using your Mojo Wealth Creator you may feel more open, with less anxiety about the little things in life. That’s because your poverty triggers are reducing, allowing more wealth mojo to flow.

92. [92]
    Supercharged Affirmation leaflet #0.7 states:

Are you interested in boosting your family’s wellbeing at home, for FREE, for the rest of your life. Simply train your unconscious mind to optimise your body’s physical function. Your Unconscious Mind is far more powerful .... governs your pain, ache and discomfort, sag, tiredness and fatigue, cramps, stress and tension.

93. [93]
    Other leaflets make therapeutic claims with respect to associated stones and affirmations for the following purposes: “Your Lip Enhancer”; “Your Wrinkle Softener”; “Your Power Stone ... You can gain a natural abundance of power”; “Oily Stone Ring” and “Sensitive Skin Ring” though without testimonial; “Dry Skin Ring.”
94. [94]
    A “Happy Button” leaflet for a small stone at $77 gives instruction for use to achieve water that is “happy, sweet, and tasty and sooo (sic) refreshing”  using the affirmation “Happy Water Now” when the stone is taped blue side down to the side or bottom of a glass of water.
95. [95]
    Other Supercharged Affirmation leaflets and stones include: “Your Marriage Saver” for “your new level of arousal”; “World Peace” for world peace “if shared with the world”; “Sexual Maturity” to create “warm relationships”; a “Confidence Builder”; and a “Caring Mojo Stone”; all with Dr More’s personal endorsement that they work brilliantly.

The Leaflet Disclaimer

96. [96]
    Each of the leaflets or brochures contain a disclaimer in the following terms:

We make no curative claims about this information or product.

7 day money back guarantee.

We will not be liable for any claims inferred in case of use or misuse.

The Seminars – What Happened

97. [97]
    Dr More required that each attendee sign a release and indemnity before commencing the course. Ms Ford signed one. I will refer to the indemnity later.
98. [98]
    Ms Ford says that, on day two of each seminar, Dr More spent most of the time referring to medical conditions that could be treated, even cured, with the “magical stones” that attendees did not have, but about which they would learn more at the next seminar.
99. [99]
    To receive more “magical stones” attendees, including Ms Ford, had to pay for the next seminar, in her case over $900 added to the Ezypay account.^[46]
100. [100]
     Ms Ford says that, including the first free seminar, she attended four seminars in all and that she made notes of Dr More’s teachings and received a packet of the stones at each seminar.
101. [101]
     Handout sheets distributed at each seminar contained information in a format that could not be understood without Dr More’s oral teaching to interpret them and note which stone to use.
102. [102]
     She says that this meant that a purchaser had to keep attending seminars and paying more money to be able to use material that continuously changed, requiring the upgrading of the “magical stones.”^[47]

Alleged fraud

103. [103]
     Ms Ford says that Dr More preys on the vulnerable people who are ill, in pain or dying, taking large sums of money for miraculous remedies that have no medically proven healing properties or established benefits.
104. [104]
     She says^[48] that Dr More carefully avoids making claims in his written material that he refers to in his seminars to induce people to pay thousands of dollars to him.

No Signed Contract

105. [105]
     Ms Ford says that she was never given a copy of a contract signed by Dr More and that she therefore has no proof of what she paid for, or why she paid out thousands of dollars to Ezypay who informed her that she had no right to terminate her agreement with it.
106. [106]
     Ms Ford is correct in saying that she was never given a written contract signed by Dr More. The only signed contract was with Ezypay. However, nothing turns on the distinction between a signed and an unsigned contract. A contract does not have to be in writing to be binding. It can be either oral or in writing or a combination of both.
107. [107]
     In this case, the leaflets, Exhibits 11 and 12 to which I referred earlier, for the discounted seminar specials for which Ms Ford enrolled, constitute the written part of the contract between her and Dr More.

Avoidance of the Ezypay Contract

108. [108]
     Ezypay continued to deduct money from her bank account which she then had to close^[49] to prevent further withdrawals. Ms Ford says that the Ezypay contract is void for uncertainty, that it has no end date, no indication of the total amount payable, no indication of what she was paying for or why.
109. [109]
     However, I do not accept Ms Ford’s contention. The end date of the Ezypay contract was ascertainable by dividing $3,600 plus recurrent collection fees by the number of periodic payments needed to settle the indebtedness at the agreed rate.
110. [110]
     Further, Ezypay is not a party to this proceeding and I could therefore not declare, as void, Ms Ford’s contract with it for that reason. Nor, for the same reason, could I order that Ezypay refund fees and charges paid by Ms Ford.

Avoidance of the Contract with Dr More

111. [111]
     Ms Ford also wants an order that the alleged contract with Dr More is void and an order that he pay her filing fee and any legal costs incurred in the proceedings.^[50] I will deal with that issue later.
112. [112]
     Even if not void or voidable, Dr More’s contract with Ms Ford may be unenforceable and a refund may be ordered, depending on my findings.

Misrepresentation

113. [113]
     Ms Ford says that Dr More misrepresented himself as a qualified healing “professional” and misrepresented the healing properties of his ‘magical stones,’ the medical conditions that they would cure and the effectiveness and value of the products sold at seminars.^[51]
114. [114]
     Ms Ford says that Dr More misrepresented that his “magical stones” would cure her headaches, migraines, back pain, emotional pain and depression. That, really, is at the heart of Ms Ford’s claim.

Unconscionable conduct

115. [115]
     Ms Ford says that Dr More’s conduct was unconscionable, that he claimed to get around the Therapeutic Goods Administration by selling only “education,” not the “stones,” though when asked about purchasing stones he gave prices for them.^[52]
116. [116]
     She says that the treatment/training that Dr More presented changed as he came up with more and more information causing people to pay more and more money for better and better “magical stones” that were ineffectual.

Use of the Stones

117. [117]
     Ms Ford says that the stones initially were to be placed on her body but, in later classes, Dr More taught the use of pieces of paper called Tardis on which the stones were to be placed for more powerful healing. Dr More claimed that the stones contained vibrations designed to heal specific conditions.^[53]
118. [118]
     Many copies of the colour Tardis are to be found in the carton box.
119. [119]
     Ms Ford says that she used the stones on her body and on the Tardis as instructed, but in every case had no cure or evidence of improvement in her health. Dr More also sold a ‘money stone’ which was supposed to bring in money. No money came in.

Return of the Stones

120. [120]
     Ms Ford says that she stopped using the “magical stones” in approximately November 2015 and returned them and the printed matter to Dr More on 15 November 2016, about a year later. Ms Ford remained ill and emotionally distressed throughout 2016.^[54] 

No health benefits or value

121. [121]
     Ms Ford says that she read volumes of material on Dr More’s website but her health situation did not improve. She says that the stones and product were worthless. She received no value from what she paid.^[55]

Dr More’s Evidence

122. [122]
     Dr More says that the miracle of healing is in “you to heal yourself.” He says a 2015 brochure refers to the stones as ‘Singing Stones’ and he refers to exhibit 35 in the lever arch file of documents which he filed with the Tribunal on 19 July 2017.
123. [123]
     Dr More says that the “marvellous healing powers” within the individual can be activated with affirmations which “... you sing into your Unconscious Mind and hold there on a repeat cycle loop using your palm, crossed ankles, tardis or, on limited sets of affirmations, stones on your navel.” He says that the technique is based on samyama, an ancient meditation method, being a combination of concentration, contemplation and bliss.^[56]
124. [124]
     Dr More says he has been teaching this method since 1982 and has used it with affirmations (special sentences), mantras (special sounds), yantras (visualisations), marmas (pressure points), massage (special strokes), food (nutritional combinations including ice-creams), and drink (especially pure water which he calls Nature’s Champagne) in the teaching of different classes.^[57]

Alleged dishonesty of Ms Ford

125. [125]
     Dr More says that he is a victim of Ms Ford’s dishonesty and that this is clear from her fabrication of evidence relating to four matters:

     1. (a)
        the nonexistent TGA investigation;
     2. (b)
        reference to nonexistent website pages in the period 2015 to 2016;
     3. (c)
        reference to words not used at the seminars such as “magical stones” or “miraculous healing powers”; and
     4. (d)
        reference to him as a “medical doctor.”^[58]
126. [126]
     I will deal with each allegation in turn.

The TGA Issue

127. [127]
     Ms Ford put into evidence an exchange of email correspondence between her and the TGA with respect to Dr More. That correspondence^[59] establishes only that the TGA declined to investigate Dr More for lack of relevant TGA jurisdiction.
128. [128]
     In particular, in respect of Ms Ford’s complaint about certain “mojo stones,” the TGA said this:

The TGA investigates issues surrounding the safety, quality and performance of devices in the Australian market. It is only able to regulate the supply of devices that have been deemed medical devices in accordance with the definition of a medical device in the Therapeutic Goods Act 1989. The product that you have reported does not fit the definition of a medical device (please see definition below) and as such we are unable to be of assistance in this matter.

129. [129]
     Whether the TGA was correct in its conclusion that the mojo stones did not fit the definition of a medical device is irrelevant. The TGA’s conclusion itself is what is relevant in an evidentiary sense. The very TGA correspondence relied on by Ms Ford proves that Dr More was not under investigation. On a careful reading of the correspondence, it declined to investigate him because of jurisdictional constraints.
130. [130]
     I note that Dr More admits to regulatory avoidance. He says that he “gets around the TGA problem by education in affirmations” and that: “... the TGA governs claims, not what is real, so all claims are made on affirmations which are held by stones.”^[60]
131. [131]
     Dr More also says that:

Mojo Stones do nothing except hold affirmations, and even if they are limited, with some of them holding, say, affirmations relating to pleasure, and others holding affirmations relating to acceptance, none of this relates to the TGA.^[61]

132. [132]
     Further, he says:

Yes, I claim that the method I use is powerful and current. It has many forms, and there are a number of ways to do it, including sound, visualisation, massage and hand positions.^[62]

133. [133]
     Nevertheless, it is clear to me that Ms Ford has misconstrued the text of the TGA correspondence by erroneously conflating a TGA investigation with a complaint for which the TGA lacks investigative jurisdiction. She is not a lawyer. That error may affect Ms Ford’s credibility as a witness but it does not evidence dishonesty and criminality on her part as Dr More asserts.

The Non-Existent Website Pages

134. [134]
     I do not accept Dr More’s evidence that website pages for the period 2015 to 2016 to which Ms Ford referred were nonexistent as he alleges. I prefer Ms Ford’s evidence to his.

“Magic” and “Miraculous.”

135. [135]
     Dr More denies that anyone ever referred to “magical stones” and says that these are the words of Ms Ford and her “colluders.”^[63]
136. [136]
     In my opinion, nothing particularly turns on the epithet “magic,” i.e. whether he described the stones as magical or, to use his own admitted adjective, “special,” is besides the point.  One must look to what claims and representations Dr More made concerning the stones and whether they were false, misleading and deceptive.
137. [137]
     I do not accept that Ms Ford is dishonest in attributing the words “magic” and “miraculous” to Dr More with respect to the stones and healing powers.
138. [138]
     In fact, in the absence of a video of Dr More’s seminar presentations in question, and none was produced, I accept that Dr More probably did use those effusive adjectives, having regard to his representations and claims concerning the stones and affirmations.

The Medical Doctor Issue

139. [139]
     Ms Ford bears the onus of proving that Dr More held himself out as a medical doctor and that he led her to believe that he had medical qualifications as she alleged in paragraphs G) and J) of her reasons for the orders that she seeks.
140. [140]
     Dr More’s oral evidence is that he has a PhD in religious studies. He says that he acquired that online^[64] and is entitled to, and does, now use the name “Dr More” in that qualified sense.^[65]
141. [141]
     I have looked carefully at Dr More’s published literature. He does not claim to be a legally qualified medical doctor or to hold an associated medical degree. He says^[66] that a process began in late February 2017 to relinquish website reference to “DR More” and that the process is now complete.
142. [142]
     Dr More’s curriculum vitae refers only to his non-medical doctorate of philosophy amongst his other qualifications that he says include:

     1. (a)
        BA (ANU):
     2. (b)
        Post Graduate Professional Writing (Canberra University);
     3. (c)
        PhD (Religious Studies and Reflexology); and
     4. (d)
        Diploma of Skeletal Reflexology.
143. [143]
     I am prepared to accept Dr More’s evidence about his holding a PhD in Religious Studies and an honorary doctorate in Reflexology. Though he did not produce any substantiating certificates for any of these qualifications, Ms Ford did not produce any evidence to the contrary.
144. [144]
     Dr More’s use of the title “DR” in his 2015 literature was superficially misleading because he does not anywhere say that he was not a medical doctor. Exhibits 11 and 12 of the exhibits filed by Dr More on 19 July 2017, the flyers for the seminar courses for which Ms Ford enrolled, provide a convenient example of this.
145. [145]
     It is understandable that, on a cursory reading of the material, members of the public might, therefore, conclude that DR More was a medical doctor. In exhibit 12, reference to his qualifications only appear under the heading “Back Pain Relief Music” 6 pages into the document.
146. [146]
     I find that, though erroneous in asserting that Dr More represented that he was a medical doctor in her reasons for orders sought, Ms Ford was not dishonest in doing so.

Ms Ford’s Video Testimonial

147. [147]
     In reason E) of Dr More’s reasons for orders in his Response/Counter-application to Ms Ford’s consumer claim, he said that Ms Ford loved the results of what she learned. He is correct to some extent. The video is in evidence in this case.^[67] I have viewed it.
148. [148]
     In the video, Ms Ford said that she was developing a migraine which completely left within minutes when one of the ladies, Joyce, put some stones on her navel. She said that this was quite amazing, that a few things happened during the weekend that were “just amazing” and that she was “blown away.”^[68]
149. [149]
     Ms Ford does not dispute the authenticity of the video or its content. Dr More recorded similar testimonial videos of favourable experiences of other seminar attendees.^[69] I have also viewed them. The transcripts are also in evidence.^[70]
150. [150]
     Dr More says that Ms Ford is lying in her affidavit where she says she got no benefit.^[71]
151. [151]
     Ms Ford says that the video was made right at the beginning when she was still in a very vulnerable state. She says that she was coerced into doing the video, that:

It was, like, everyone was being asked to do it and – and, because the migraine had lifted – which I hadn’t experienced before – I thought – Yeah, this is really good. Like, it was getting me in. But as soon as I left, it came back, and I tried the same thing and it never worked again. The migraines still, you know, continued. It seemed like it was just in the classroom that it seemed to work, so I don’t know what that was about.^[72]

152. [152]
     I accept Ms Ford’s explanation. Though there is some inconsistency between what she says there and her affidavit evidence in which she said that she got no benefit at all, I accept that the testimonial was not spontaneous, it was procured by Dr More right at the beginning.
153. [153]
     No other videos were recorded subsequently. The relief from migraine on one occasion only was temporary. Significantly, the testimonial does not refer to any relief of Ms Ford’s other medical conditions, including, pertinently, her serious depression.
154. [154]
     I am not persuaded that Ms Ford perjured herself as alleged by Dr More.

The Distributorship

155. [155]
     On 11 October 2015, approximately seven months after the first of the seminar courses, Ms Ford applied to Dr More for, and received, a distributorship. Dr More says that this implies satisfaction with the courses and materials.
156. [156]
     In response to my asking why Ms Ford applied for the distributorship seven months after starting the seminar courses, she said: “I never became a distributor. It was never anything I wanted to do. It was just something I went along with because it was being handed around.”^[73]
157. [157]
     I do not accept Ms Ford’s statement that she never became a distributor. She did, briefly.
158. [158]
     The evidence is that Ms Ford made one (only) distributor purchase of stones for $497.00 from Dr More on 17 January 2016 for which, Dr More says in his affidavit sworn 4 September 2017, she received a distributor discount at that price and I accept that is so. She previously purchased stones from Dr More in August and October 2015.
159. [159]
     That is the only occasion on which Ms Ford purchased stones for resupply. She said that she might have purchased product for her mother.^[74] In other words, she did not trade the distributorship.
160. [160]
     On my questioning, Ms Ford said that she could understand the inconsistency between stating, on the one hand, that the seminars and materials were worthless, and applying for the distributorship on the other hand.
161. [161]
     Ms Ford’s explanation, which I accept, is as follows:

But if you would understand that I was trying to make it work – I believed that over time, if I give the stones enough time, they would work, and I gave them the time to work. I had invested the money .... I have to put in my best effort, which I did. I did all the breathing. I did all the shiver shaking. I did everything that was recommended. And I taught my mother how to do it, trying to get her to be healed through all of this stuff, and eventually I just had to say – it was, like I said, going to that expo and just seeing the workings of it all and the manipulation, and I realised that this is just not good; it’s not healthy. And even then, I didn’t do anything straight away about it, even after I stopped going.^[75]

162. [162]
     Further, she said, and I accept, that:

I wrote that looking back over the period of time I had spent in the course doing all of the learning. I looked back and saw, “Well, it hasn’t done me any good.” I’ve tried everything, I’ve done all these different affirmations and nothing has actually worked. And it took me, because of where I was at the time, a period of time to settle into an understanding, if you will. That’s the only way I can explain it.

163. [163]
     Ultimately, Ms Ford resigned the distributorship. She returned what remaining course literature and materials she says she then had in her possession to Dr More. He says she did not return a lot of the literature.

The Release

164. [164]
     I return to the issue of the release. Dr More required attendees of his seminar courses to sign a release and indemnity in advance of attending the seminars as an additional measure of insurance for Dr More. It is not necessary for me to refer to the content of the document that Ms Ford signed other than to say that it is cast in broad terms for the benefit of Dr More and others in contemplation that he (and they) might be sued.
165. [165]
     Ms Ford signed the standard form contractual release, as did others, prior to their participation as required. Dr More relies on that release (and the leaflet disclaimers) in defence of Ms Ford’s claim. He says that all speakers in Australia use this form of indemnity.
166. [166]
     However, as I pointed out at the hearing on 9 August 2017,^[76] Dr More cannot contractually disclaim, or avoid the provisions of statute, in particular the Australian Consumer Law (“the ACL”).^[77]
167. [167]
     To ensure that Dr More understood the point, I explained that:

In other words, the document is probably not worth the paper it’s written on if there has been an infringement of the Australian Consumer Law, if there’s been misleading and deceptive conduct, if there’s been misrepresentation. So just because there’s a document which you say Ms Ford signed, which I’ll accept for the present discussion is the case, doesn’t mean to say that it has or carries any consequence in absolving you from a liability.^[78]

Other Affidavits

168. [168]
     I have, in what is already a disproportionately long decision relative the amounts directly in issue in this case, confined myself to the primary affidavits and oral evidence of Dr More and Ms Ford.
169. [169]
     I have read and considered all of the other affidavit material filed by Dr More and Ms Ford respectively, including the affidavits of their respective witnesses. That evidence does not change my findings of fact and conclusions in this case.

Demeanour

170. [170]
     I address the issue of demeanour because Dr More raised it in the course of the hearing on 9 August 2017.
171. [171]
     Dr More wore an eye patch over one eye during the hearings. He told me that he has facial asymmetry and that “... it’s very hard to get believability in any strong way with anybody.”^[79] He said that it is “hardwired in the brain” in all cultures that when you have facial asymmetry of the face, that person is lying.”^[80] He said that his facial asymmetry is attributable to his having had an iridectomy.
172. [172]
     In R v BBT [2009] QCA 292, [27]-[29], Muir JA referred to the High Court decision in Devries v Australian National Railways Commission (1993) 177 CLR 472, 480 (per Deane and Dawson JJ) where their Honours said:

Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby ACJ pointed out in Galea v Galea (1990) 19 NSWLR 263, 266, in many cases today, judges at first instance expressly “disclaim the resolution of factual disputes by reference to witness demeanour”. However, this does not deny that in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings.

173. [173]
     In the present case, he having raised the issue, I informed Dr More that I would not be making a decision on the basis of the parties’ faces or their presentation but on the oral and documentary evidence.^[81] I reconfirm that now.
174. [174]
     The demeanour and the conduct of both Dr More and Ms Ford in the course of the several hearings does not enter the equation and is irrelevant to my analysis, findings, reasons and decision.

Law

Implied Guarantees

175. [175]
     A consumer contract is one for the supply of goods or services to an individual whose acquisition of them is wholly or predominantly for personal, domestic or household use or consumption.^[82]
176. [176]
     In this case, Ms Ford acquired the goods and educational services for personal, and in one limited case, family, use.
177. [177]
     Section 3 of the ACL, insofar as is relevant to this case, provides that a person is taken to have acquired goods as a consumer if, and only if, the amount paid (as worked out under subsections (4) to (9)) did not exceed $40,000 or the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption, but not for re-supply.
178. [178]
     Ms Ford is, therefore, taken to have acquired the goods and services as a consumer in this case.
179. [179]
     The word “consumer” is independently defined in Schedule 3 of the QCAT Act as meaning an individual for whom services are supplied for fee or reward. There are some qualifications that are not relevant in this case.
180. [180]
     Ms Ford is a consumer in that jurisdictional sense as well.
181. [181]
     The definition of the word “services” in the ACL includes:

     1. (a)
        any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and
     2. (b)
        without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

        1. a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or
        2. a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; …^[83]
182. [182]
     Dr More’s seminars and packs involved education. Such education is a service within the meaning of that term in the ACL.
183. [183]
     The ACL implies guarantees of due care and skill and fitness for a particular purpose expressly or implicitly made known to the supplier.^[84] They are implied in this case. The purpose to be achieved was a return to health and wellbeing.
184. [184]
     The term “consumer goods” is defined as meaning:

... goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption and includes ... ^[85]

185. [185]
     The stones and literature supplied by Dr More were goods, and consumer goods, in that sense.
186. [186]
     Insofar as the education included goods and materials, in the present case the promotion and supply of the stones and associated leaflets, the ACL implies guarantees of acceptable quality and fitness for a disclosed purpose.^[86] A trader, Dr More, in this case, cannot contract out of the implied statutory guarantees.

Prohibition of Unconscionable Conduct

187. [187]
     A person must not, in trade or commerce, engage in conduct that is unconscionable, either within the meaning of the unwritten law from time to time.^[87]
188. [188]
     The term “unwritten law” means the common law though it is stated in writing in judgments of the Court. At common law, a contract obtained by one party taking unfair advantage, i.e. unconscionably, of another’s special disability, may be set aside.^[88]
189. [189]
     Section 21 of the ACL prohibits unconscionable conduct in trade or commerce in connection with the supply of goods and services to anther person.  Criteria to which the Tribunal may have regard in the application of section 21 of the ACL include:

     1. (a)
        The relative strengths of the bargaining positions of the supplier and consumer; and
     2. (b)
        ...
     3. (c)
        Whether the consumer was able to understand any documents relating to the supply of goods and services; and
     4. (d)
        Whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; ...^[89]
190. [190]
     A reference in section 21 of the ACL to goods or services is a reference to goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption^[90] but, in the case of goods, goods supplied for resupply are excluded from the application of the section.^[91]

Prohibition of misleading and deceptive conduct

191. [191]
     A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.^[92]

Statutory Consequences

192. [192]
     Breach of any of these implied guarantees and breach of the prohibition against misleading and deceptive conduct and against unconscionable conduct in contravention of Chapter 2 or 3 of the ACL is actionable by way of a claim for damages suffered by a consumer.^[93] An action may be commenced within six years after the date on which the cause of action accrued.^[94]
193. [193]
     Also, section 237(1) of the ACL provides that a court may, on application of a person (the injured person) who has suffered any loss or damage because of the conduct of another person that was engaged in a contravention of a provision of Chapter 2, 3 or 4, make such orders as thought appropriate against the person who engaged in the conduct.
194. [194]
     In that event, the order must be one that the court considers will compensate the injured person in whole or in part for the loss or damage or prevent or reduce the loss or damage suffered by the injured person.^[95] The limitation period is again 6 years.^[96]
195. [195]
     Section 243 of the ACL provides that, without limiting section 237(1), a court may, amongst others, make an order declaring a contract void and void from the outset^[97] or an order refusing to enforce any or all of the provisions of such a contract^[98] and/or an order directing the respondent to refund money to the injured person.^[99]
196. [196]
     Reference to ‘court’ is to be taken as reference to a tribunal on the authority of Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170.

Liability

197. [197]
     As a consumer, who she undoubtedly is,^[100] was Ms Ford:

     1. (a)
        misled and deceived, particularly with respect to the therapeutic seminar services supplied and the claimed function and benefits of the “Mojo Stones,” in breach of section 18 of the ACL?
     2. (b)
        the recipient of goods (Mojo Stones and associated leaflets) which were of an unacceptable quality and unfit for their intended therapeutic purpose and use, in breach of the implied ACL guarantees?
     3. (c)
        the recipient of services, whether in the form of Dr More’s education or otherwise, which were of an unacceptable quality and unfit for purpose, in breach of the implied ACL guarantees?
198. [198]
     I find that Ms Ford was so misled and deceived, that the goods, i.e. the stones in combination with the leaflets and education, and the services, did not match the implied guarantees. They were not fit for purpose and not of acceptable quality. Dr More’s therapeutic claims were illusory. Ms Ford did not return to health and wellbeing even though she followed Dr More’s  instructions for use of the stones.  Dr More breached the ACL guarantees.
199. [199]
     Dr More’s claims concerning the stones and affirmations and the associated therapeutic biological benefits of the combination are unsubstantiated insofar as they relate to Ms Ford. Dr More did not produce any plausible collegiate corroboration of his claims. His evidence was general in content and unconvincing.
200. [200]
     For example, in respect of the allegedly beneficial fields in the stones, there is no evidence of what that was or is. There is no evidence of what the “zapping” of them created according to the zap location. One might reasonably ask, what kind of “zapping” with what device and effect and with what therapeutic qualities and verified empirical results? The questions stand unanswered.
201. [201]
     There is no evidence of exactly what combination of earth minerals constituted each stone, the use of which, I note, was limited to one particular affirmation per stone. Dr More did not produce any evidence from the New Zealand manufacturer, Terry Downey, with whom he previously associated, who supplied the stones to him.
202. [202]
     The represented therapeutic benefit of the combination of each stone and affirmation, when applied as instructed, was illusory as I have said. Dr More’s bold statement in the leaflets that “this works brilliantly” was, and is, incredible. The stone leaflet examples to which I referred earlier contain the statement and representation. The fact that many stones were supplied free with the leaflets does not diminish the representation and the encouragement to acquire more stones by attending more seminars.
203. [203]
     With the exception of temporary migraine relief that Ms Ford experienced at the first seminar on one occasion only and which may have been entirely coincidental, she received no therapeutic health benefits whatsoever and no return to wellbeing as promised. Ms Ford was none the richer or healthier after the seminar courses than before. She gave a plausible and reasonable explanation for waiting until November 2016 to return the merchandise, or what was left of it at that stage, to Dr More.
204. [204]
     Though perhaps not intentionally so, since Dr More firmly believes that the Unconscious Mind changes human biology, Dr More’s conduct was nevertheless misleading and deceptive in the respects to which I have referred. Misleading and deceptive conduct does not have to be intentional to be actionable. It may be entirely innocent but innocence is not a defence.
205. [205]
     I am satisfied that Ms Ford acted to her detriment in relying on Dr More’s misleading and deceptive conduct and (mis)representations, persevering, as she did in her depressed state for over a year, before it dawned on her that the represented health outcomes would never be achieved.
206. [206]
     As was admitted by Dr More in his oral evidence to which I referred earlier, his contractual promise to Ms Ford was more than just educational, it was a promise to her of a return to wellbeing and instant healing. He breached the promise.
207. [207]
     Dr More admitted that the stones were, at least, “convenient” to the efficacy of his system. I am however satisfied that the stones were more than just convenient. They were integral and essential to the seminar packs and the represented therapeutic outcome. They came at a price, regardless of the statement that they were “free.” They were included in the cost of the education though provided “free.” They could not be acquired “free” without paying for the seminars.
208. [208]
     Ms Ford’s loss and damage is the amount that she paid to Dr More for the seminar courses and associated goods that she should recover in compensation pursuant to sections 236 and 237 of the ACL and she should be relieved from liability to pay Dr More the balance of the seminar fees.^[101]
209. [209]
     I turn now to the question of whether Dr More’s conduct was unconscionable and whether the contract with Dr More, if it still subsists, should be rescinded on that basis.
210. [210]
     I am satisfied that Dr More’s conduct was unconscionable. The (mis)represented stone/affirmation therapy for biological change and return to health and wellbeing, to be self-administered as instructed by the education and the leaflets, was an essential element of the seminar courses.
211. [211]
     I accept Ms Ford’s evidence, to which I referred earlier, that to receive more stones, seminar attendees had to pay for the next seminar and to keep attending more seminars and paying more money in order to use the material that kept changing, necessitating stone upgrades.
212. [212]
     The unconscionability of that is palpable. The tactic was unfair. Ms Ford had no bargaining power to counter it. She was vulnerable by reason of her depression and health condition for which Dr More offered a recovery. Unbeknown to Ms Ford at the time, the represented benefit of the stones and affirmations was illusory but she had to pay for the next seminar to receive more stones to achieve the return to health and wellbeing.
213. [213]
     Dr More says that Ms Ford still owes the balance of fees for which he sues, that Ms Ford has yet to completely perform her contractual obligation to do so. Another issue is whether Dr More’s acceptance of Ms Ford’s return of the box of goods amounted to an acceptance of her repudiation in the letter which accompanied it.
214. [214]
     I do not need to decide whether the seminar contracts with Dr More still subsist because I have come to the conclusion that there is no point to rescission of the seminar contracts, if they do still subsist, for the following reasons.
215. [215]
     Firstly, the seminar courses were completed by Ms Ford in early 2015 and the history of events subsequent, to which I have referred, cannot be undone.
216. [216]
     Secondly, having regard to Ms Ford’s delay in returning the box of goods and materials to Dr More and commencing proceedings to vindicate her position, equitable considerations would not support belated rescission now.
217. [217]
     Thirdly, I have a discretion^[102] to order refund of the course fees and relief from liability to pay the balance of the debt claimed by Dr More in any event. The discretion is broad^[103] and the same outcome is achieved as in rescission, i.e. a refund of Ms Ford’s payments actually made and relief from paying the outstanding balance.
218. [218]
     In concluding, I note that Ms Ford has claimed a refund of the Ezypay charges. That claim cannot succeed because it would have to be made against Ezypay and it is not a party to this proceeding.
219. [219]
     Whether or not an Anshun estoppel^[104] would prevent Ms Ford from making a separate claim against Ezypay is not a question to be answered in these proceedings.

Orders

220. [220]
     I therefore make the following Orders:

In MCDO 27/17:

1. The amount of $1,740.00 is not owing by Paula Kaye Ford to Donovan Rock More atf Cleopatra Skin Discretionary Trust.
2. The exhibit marked A1 tendered in evidence by Donovan Rock More on 1 November 2017 be not released until the later of 31 July 2018 or the conclusion of any final appeal.
3. The minor debt claim of Donovan Rock More atf Cleopatra Skin Discretionary Trust against Paula Kaye Ford is dismissed.

In MCDO 60/17:

1. Donovan Rock More atf Cleopatra Skin Discretionary Trust pay Paula Kaye Ford $1,860.00 within 30 days.
2. Donovan Rock More atf Cleopatra Skin Discretionary Trust pay the filing fee of $112.50 to Paula Kaye Ford.
3. The counter-application of Donovan Rock More is dismissed.