Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3)

• Jurisdiction: Australia Federal only
• Judge: STEWART J
• Judgment Date: 02 July 2021
• Neutral Citation: [2021] FCA 737
• Court: Federal Court
• Date: 02 July 2021

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737

File number:	NSD 2059 of 2018
Judge:	STEWART J
Date of judgment:	2 July 2021
Catchwords:	CONSUMER LAW – unconscionable conduct – statutory unconscionability under s 21 of the Australian Consumer Law – systemic unconscionability – meaning of unconscionability – unconscionable in all the circumstances – where a system weakened safeguards to consumers in order to increase enrolments at a vocational education and training (VET) college – where the system was compared to the system that existed prior to its implementation – where the college did not cancel the enrolment of consumers in online VET courses it had not had any contact with before the census date which triggered the payment of fees by the Commonwealth and a debt by the consumer to the Commonwealth – where numbers and revenue increased dramatically – where significant numbers and proportion of students had no contact with the college and gained no value from enrolment but incurred substantial debts ; CONSUMER LAW – misleading and deceptive conduct and representations under s 18 and 28 of the Australian Consumer Law – misleading or deceptive conduct in trade or commerce – false or misleading representations about goods or services – where college provided online VET courses and engaged recruiters to market its courses direct to consumers – whether recruiters made misleading or deceptive representations to specific consumers – where free laptops offered as inducement to enrol – where true cost of enrolling misrepresented ; CONSUMER LAW – unsolicited consumer agreements under ss 69, 78-79 of the Australian Consumer Law – whether enrolment of consumers in online VET courses was by way of “unsolicited consumer agreements” – whether consent was given by consumers – threshold for consent to receive documentation – unsolicited consumer agreements and certain requirements regarding the agreement and its contents – formation of unsolicited consumer agreement ; CONSUMER LAW – “knowingly concerned” under s 224 of the Australian Consumer Law – requirements with regard to knowledge and participation – where the fourth respondent was COO of the second respondent, which owned all the shares in the first respondent, was also acting CEO of the first respondent – whether the fourth respondent was knowingly concerned in the conduct of the first respondent ; CONSUMER LAW – conduct “on behalf of” a body corporate under s 139B of the Competition and Consumer Act 2010 (Cth) – whether knowledge and conduct of the fourth respondent to do with the first respondent, the college, including as its acting CEO is attributed to the second respondent of which he was COO – attribution of conduct of an officer or employee of a subsidiary to a parent company – whether conduct of external recruiters is attributed to the VET college – conduct of an authorised class
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB, 12CC Competition and Consumer Act 2010 (Cth) ss 84(1), 84(2), 139B, Sch 2 (Australian Consumer Law) ss 18(1), 21, 29, 69, 78, 79, 224 Evidence Act 1995 (Cth) s 50 Higher Education Support Act 2003 (Cth) ss 104-20, 137-18, Sch 1 cl 1, Sch 1A cll 43, 46, 51, 55, 64, 67, 91, 99 National Vocational Education and Training Regulator Act 2011 (Cth) ss 185(1), 186(1) Competition and Consumer Regulations 2010 (Cth) reg 85 Explanatory Memorandum, HES Amendment (Streamlining and other measures) Bill 2012 (Cth) Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth)
Cases cited:	ACCC v Acquire Learning & Careers Pty Ltd [2017] FCA 602 ACCC v Australian Institute of Professional Education Pty Ltd (in liq) (No 3)[2019] FCA 1982 ACCC v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408 ACCC v Geowash Pty Ltd (subject to a deed of company arrangement) (No 3)[2019] FCA 72; 368 ALR 441 ACCC v Get Qualified Australia Pty Ltd (in liq) (No 2) [2017] FCA 709; [2017] ATPR 42-548 ACCC v Quantum Housing Group Pty Ltd[2021] FCAFC 40; 388 ALR 577 ACCC v TPG Internet Pty Ltd[2013] HCA 54; 250 CLR 640 ACCC v Unique International College Pty Ltd [2017] FCA 727 Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 Adler v ASIC; Williams v ASIC[2003] NSWCA 131; 46 ACSR Ali v ACCC[2021] FCAFC 109 Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd[2020] FCA 1530 APRA v Kelaher[2019] FCA 1521; 138 ACSR 459 Ashbury v Reid [1961] WAR 49 ASIC v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; 235 FCR 181 ASIC v Australia and New Zealand Banking Group Ltd[2019] FCA 1284; 139 ACSR 52 ASIC v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267; 53 ACSR 305 ASIC v Geary [2016] VSC 779; 342 ALR 1 ACCC v Coles Supermarkets Australia Pty Ltd[2014] FCA 634; 317 ALR 73 ACCC v IMB Group Pty Ltd[2003] FCAFC 17 ACCC v Lux Distributors Pty Ltd[2013] FCAFC 90; ATPR 42-447 ACCC v TPG Internet Pty Ltd [2020] FCAFC 130; 381 ALR 507 ASIC v Kobelt[2019] HCA 18; 267 CLR 1 Blomley v Ryan[1956] HCA 81; 99 CLR 362 Burt v Australia & New Zealand Banking Group Ltd (1994) ATPR (Digest) 46‑123 Butcher v Lachlan Elder Realty Pty Ltd[2004] HCA 60; 218 CLR 592 Campomar Sociedad Limitada v Nike International[2000] HCA 12; 202 CLR 45 Commercial Bank of Australia Ltd v Amadio[1983] HCA 14; 151 CLR 447 Consolo Ltd v Bennett[2012] FCAFC 120; 207 FCR 127 Director of Consumer Affairs Victoria v Scully[2013] VSCA 292; 303 ALR 168 Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 167; 2 FCR 82 Google Inc v ACCC[2013] HCA 1; 249 CLR 435 Jenyns v Public Curator (Qld)[1953] HCA 2; 90 CLR 113 Jones v Dunkel[1959] HCA 8; 101 CLR 298 The Juliana(1822) 2 Dods 504 Kakavas v Crown Melbourne Ltd[2013] HCA 25; 250 CLR 392 Kraft Foods Group Brands LLC v Bega Cheese Ltd[2020] FCAFC 65; 377 ALR 387 Leighton Contractors Pty Ltd v CFMEU [2006] WASC 144; 154 IR 228 Lisciandro v Official Trustee In Bankruptcy[1995] FCA 1527; ATPR ¶41-436 Lloyd v Belconnen Lakeview Pty Ltd[2019] FCA 2177; 377 ALR 234 Louth v Diprose[1992] HCA 61; 175 CLR 621 Meridian Global Funds Management Asia Ltd v Securities Commission[1995] 2 AC 500 NMFM v Property Pty Ltd v Citibank Ltd (No 10)[2000] FCA 1558; 107 FCR 270 NRM Corporation Pty Ltd v ACCC [2016] FCAFC 98 Paciacco v Australia & New Zealand Banking Group Ltd [2015] FCAFC 50; 236 FCR 199 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd[1982] HCA 44; 149 CLR 191 Pereira v Director of Public Prosecutions [1988] HCA 57; 82 ALR 217 Perre v Apand Pty Ltd[1999] HCA 36; ...