Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54

Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54

The majority held that the College’s conduct in altering its enrolment and withdrawal processes, in the context of known and recurrent risks of agent misconduct and unsuitable student enrolments, and in pursuit of profit, constituted unconscionable conduct in all the circumstances under s 21 of the ACL. The abandonment of safeguards led directly to harm by enabling large numbers of disengaged, unsuitable, or unwitting students to incur significant Commonwealth-backed debts for no meaningful educational benefit. The conduct of agents was attributable to the College, and a senior executive (Mr Wills) was knowingly concerned in the contravention from when he became acting CEO. However, in...

Jurisdiction
Australia
Judgment Date
06 April 2023
Procedural Posture
Civil Appeal / Full Court Appeal From Trial Judgment, Orders Made on 6 April 2023
Outcome
Appeals allowed in part, otherwise dismissed (majority: declaratory orders relating to systemic unconscionability set aside and remitted to primary judge; College found not to have acted unconscionably regarding Consumers B-E; Mr Wills’ knowing involvement limited to period as acting CEO; costs orders adjusted)....
Legal Topics
['unconscionable Conduct' 'statutory Unconscionability' 'registered Training Organisations' 'vet FEE HELP Scheme' 'attribution of Agent’s Conduct' 'section 21 Australian Consumer Law' 'section 139 B Competition and Consumer Act 2010']
['consumer Law' 'commercial Law'] ['unconscionable Conduct' 'statutory Unconscionability' 'registered Training Organisations' 'vet FEE HELP Scheme' 'attribution of Agent’s Conduct' 'section 21 Australian Consumer Law' 'section 139 B Competition and Consumer Act 2010']

Case Brief

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Procedural Posture

Civil Appeal / Full Court Appeal From Trial Judgment, Orders Made on 6 April 2023

Legal Issues

  1. 1 ['Whether changes to enrolment and withdrawal processes and claiming/retaining revenue under the VET FEE-HELP scheme amounted to unconscionable conduct under s 21 of the Australian Consumer Law.' 'Whether a senior executive of the registered training organisation was knowingly concerned in, or party to, the contraventions for ss 224, 246 and 248 of the ACL.' 'Whether conduct of the College’s sales and marketing agents is attributable to the College within s 139B(2) of the Competition and Consumer Act 2010 (Cth).' 'Whether College’s conduct was not unconscionable due to prompt remedying of harm.']

Ratio Decidendi

The majority held that the College’s conduct in altering its enrolment and withdrawal processes, in the context of known and recurrent risks of agent misconduct and unsuitable student enrolments, and in pursuit of profit, constituted unconscionable conduct in all the circumstances under s 21 of the ACL. The abandonment of safeguards led directly to harm by enabling large numbers of disengaged, unsuitable, or unwitting students to incur significant Commonwealth-backed debts for no meaningful educational benefit. The conduct of agents was attributable to the College, and a senior executive (Mr Wills) was knowingly concerned in the contravention from when he became acting CEO. However, in...

Court Disposition

Appeals allowed in part, otherwise dismissed (majority: declaratory orders relating to systemic unconscionability set aside and remitted to primary judge; College found not to have acted unconscionably regarding Consumers B-E; Mr Wills’ knowing involvement limited to period as acting CEO; costs orders adjusted)....

Orders

  • ['First Respondent (ACCC) granted leave to rely on amended notice of contention dated 4 May 2022 in both appeals.' 'Paragraphs 1, 2 and 3 of the orders of 4 August 2021 set aside; issue of declaratory relief remitted to primary judge.' 'Paragraphs 8, 11, 14 and 17 of the orders of 4 August 2021 set aside; issue of...