Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: BROMWICH J
• Judgment Date: 26 November 2019
• Neutral Citation: [2019] FCA 1982
• Date: 26 November 2019

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3) [2019] FCA 1982

File number:	NSD 453 of 2016
Judge:	BROMWICH J
Date of judgment:	26 November 2019
Catchwords:	CONSUMER LAW – alleged contraventions of s 21 of the Australian Consumer Law – where respondent provided online vocational education training courses – whether respondent engaged in unconscionable system of conduct or pattern of behaviour by visiting low socio-economic communities, making false or misleading representations courses were free, offering inducements, failing to explain nature of VET FEE-HELP obligations, not assessing adequacy of skills to complete course – whether insufficient training and monitoring of agents – whether unconscionable conduct in relation to 13 individual consumers ; CONSUMER LAW – alleged contraventions of ss 76 and 78 of the Australian Consumer Law – whether respondent contravened unsolicited consumer agreement provisions regarding specific consumers ; CONSUMER LAW – alleged contraventions of ss 18 and 29 of the Australian Consumer Law – misleading or deceptive conduct in trade or commerce – false or misleading representations about goods or services –whether recruiters made misleading or deceptive representations to specific consumers – whether this was shown to be part of a wider system of conduct or pattern of behaviour
Legislation:	Australian Consumer Law (contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 21, 21(4)(b), 22, 29(1), 69, 70, 76, 78, 239 Competition and Consumer Act 2010 (Cth), ss 137H(3), 139B(1)(a), 130B(2), 155 Corporations Act 2001 (Cth) s 500 Evidence Act 1995 (Cth) ss 136, 140(2) Higher Education Support Act 2003 (Cth) National Vocational Education and Training Regulator Act 2011 (Cth)
Cases cited:	Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75 Australian Competition and Consumer Commission v ABG Pages Pty Ltd [2018] FCA 764 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (formerly Advanced Medical Institute Pty Ltd) (in liq) [2015] FCA 368; ATPR 42-498 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 2) [2018] FCA 1459 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 2) [2017] FCA 709 Australian Competition and Consumer Commission v Harrison [2016] FCA 1543 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; 368 ALR 1 Australian Competition and Consumer Commission v Medibank Private Ltd [2018] FCAFC 235 Australian Competition and Consumer Commission v Unique International College [2017] FCA 727 Australian Securities Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284 Briginshaw v Briginshaw (1938) 60 CLR 336 Evans v Braddock [2015] NSWSC 249 NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98, ATPR 42-531 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; 236 FCR 199 Paciocco v Australian and New Zealand Banking Group Limited [2016] HCA 28; 258 CLR 525 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 365 ALR 402 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; 15 BPR 29,699 Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; 362 ALR 66 Watson v Foxman (1995) 49 NSWLR 315
Dates of hearing:	17-21 September 2018
Date of last submissions:	9 November 2018
Registry:	New South Wales
Division:	General
National Practice Area:	Commercial and Corporations
Sub-Area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	774
Counsel for the Applicants:	Mr G Kennett SC with Mr D Tynan
Solicitor for the Applicants:	Corrs Chambers Westgarth
Counsel for the Respondent:	Ms K Morgan SC with Ms C Hamilton-Jewell
Solicitor for the Respondent:	Minter Ellison

ORDERS

		NSD 453 of 2016
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION First Applicant ; COMMONWEALTH OF AUSTRALIA Second Applicant
AND:	AUSTRALIAN INSTITUTE OF PROFESSIONAL EDUCATION PTY LTD (IN LIQ) (ACN 126 628 215) Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	26 November 2019

THE COURT ORDERS THAT:

1. The parties furnish, by email to the associate to Justice Bromwich, agreed or competing orders arising from the reasons for judgment within 14 days, or such further time as may be allowed.

2. A case management hearing be listed on a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

INTRODUCTION	[1]
THE PLEADED POSITION AND CASE FOR THE PARTIES	[15]
Overview of the applicants’ case and AIPE’s response	[15]
Admissions as to background facts	[24]
Core disputed allegations	[34]
Divergent views on what needs to be established and how	[41]
THE VET FEE-HELP SCHEME	[65]
Essential Features	[65]
The VET FEE-HELP scheme and its potential for abuse	[72]
AIPE’S OPERATIONS	[94]
Overview of AIPE’s business	[94]
AIPE’s enrolment process and forms	[105]
Enrolment data relied upon by the applicants	[128]
LEGAL PRINCIPLES	[146]
Unconscionable conduct	[147]
Differences between this case and Unique	[159]
Use of individual consumer witnesses	[173]
False, misleading or deceptive conduct	[176]
Unsolicited consumer agreements	[178]
INDIVIDUAL CONSUMER WITNESSES	[182]
Consumer MI	[186]
Consumer RS	[193]
Consumer TK (supported by CF)	[209]
Consumer CRS	[243]
Consumer MS	[270]
Consumer LT	[307]
Consumer FM	[324]
Consumer KB	[335]
Consumer KP	[353]
Consumer JC

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