Productivity Partners Pty Ltd (trading as Captain Cook College) ACN085570 547 & Anor v. Australian Competition and Consumer Commission & Anor

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”) – Where first applicant carried on business providing vocational education and training courses to students – Where second applicant is parent company of first applicant – Where students enrolled in courses by first applicant were eligible for funding support under Commonwealth government scheme (VET-FEE HELP) – Where first applicant 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, first applicant had several controls in enrolment system which it implemented to ameliorate risk of unethical or careless conduct of agents with respect to enrolments –Where first applicant removed those controls after suffering declining enrolments – Where primary judge and Full Court held first applicant engaged in unconscionable conduct in contravention of s 21 of ACL – Whether Full Court ought to have held that primary judge erred in holding first applicant engaged in unconscionable conduct within meaning of s 21 of ACL, which claim was framed, and considered by trial judge, without reference to factors prescribed by s 22 of ACL – Whether Full Court erred in holding first applicant’s conduct of removing two system controls and operating enrolment system without those controls, in absence of intention that risks ameliorated by those controls eventuate, constituted unconscionable conduct in contravention of s 21 – Whether Full Court erred in holding second applicant knowingly concerned or party to first applicant’s contravention of s 21.