Wills v. Australian Competition and Consumer Commission & Ors
Case No.
S116/2023
Related Case
S118/2023 - Productivity Partners Pty Ltd (trading as Captain Cook College) & Anor v. Australian Competition and Consumer Commission & Anor
Case Information
Lower Court Judgment
06/04/2023 Federal Court of Australia (Wigney, O'Bryan & Downes JJ)
[2023] FCAFC 54
Catchwords
Trade Practices – Consumer law – Unconscionable conduct – Statutory unconscionability under s 21 of Australian Consumer Law ("ACL") – Knowing concern in unconscionable conduct – Accessorial liability – Where second respondent carried on business providing vocational education and training courses to students – Where third respondent parent company of second respondent – Where applicant was Chief Operating Officer of third respondent, and for period Chief Executive Officer of second respondent – Where students enrolled in courses by second respondent were eligible for funding support under Commonwealth government scheme (VET-FEE HELP) – Where second respondent engaged agents to market to or recruit potential students – Where changes made to VET-FEE HELP scheme by Commonwealth to protect students from risk of misconduct by agents and providers – Where prior to 7 September 2015, second respondent had several controls in enrolment system which it implemented to ameliorate risk of unethical or careless conduct of agents with respect to enrolments – Where second respondent removed those controls after suffering declining enrolments – Where primary judge and Full Court held second respondent engaged in unconscionable conduct in contravention of s 21 of ACL – Where primary judge held applicant was knowingly concerned in contravention of prohibition second respondent's unconscionable conduct – Where Full Court majority allowed one of applicant's grounds of appeal in part, that applicant did not know all of matters essential to contravention until he was acting CEO – Whether Full Court majority erred in finding that applicant had requisite knowledge to be liable as accessory to contravention of s 21, notwithstanding applicant did not have knowledge that conduct involved taking advantage of consumers or was otherwise against conscience – Whether Full Court majority erred in finding that applicant satisfied participation element for accessorial liability by (i) applicant's conduct before he had knowledge of essential matters which make up contravention; together with (ii) applicant's continued holding of position of authority, but no identified positive acts after applicant had requisite knowledge.
Documents
14/09/2023 Determination (SLA, Canberra)
28/09/2023 Notice of appeal
02/11/2023 Written submissions (Appellant)
02/11/2023 Chronology (Appellant)
30/11/2023 Written submissions (First Respondent)
30/11/2023 Written submissions (Second and Third Respondents)
21/12/2023 Reply
07/02/2024 Hearing (Full Court, Canberra) (Audio-Visual Recording)
07/02/2024 Outline of oral argument (Appellant)
08/02/2024 Outline of oral argument (First Respondent)
07/02/2024 Outline of oral argument (Second and Third Respondents)
08/02/2024 Hearing (Full Court, Canberra) (Audio-Visual Recording)