Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: PERRY J
• Judgment Date: 13 August 2021
• Neutral Citation: [2021] FCA 956
• Date: 13 August 2021

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2021] FCA 956

File number:	NSD 1471 of 2015
Judge:	PERRY J
Date of judgment:	13 August 2021
Catchwords:	CONSUMER LAW – alleged contraventions of s 21 of the Australian Consumer Law – unconscionable conduct in trade or commerce in connection with the supply of goods or services – where the first respondent was a vocational education and training (VET) provider of online courses – whether respondents’ marketing and enrolment systems unconscionable – where marketing and enrolment systems targeted at vulnerable consumers – whether respondents’ purpose in marketing and enrolment systems was to maximise enrolments attracting VET FEE-HELP assistance payments so as to maximise revenue via the VET FEE-HELP assistance scheme – whether respondents displayed a callous indifference to consumers’ eligibility and suitability for the online courses – where consumers often denied a reasonable opportunity to withdraw from the online VET course before the census date for each unit of study had passed – where Brokers and Agents deployed without effective training, monitoring or control – where consumers offered “free” laptops and other inducements to enrol – where Agents made misrepresentations that the online courses were free or free until the consumer earned a particular amount – attribution of conduct of Brokers and Agents to respondents ; CONSUMER LAW – alleged contraventions of ss 18 and 29 of the Australian Consumer Law – misleading or deceptive conduct in trade or commerce – where Phoenix through its Brokers and Agents engaged in false, misleading or deceptive conduct towards four individual consumers in representing that if consumers enrolled they would receive a free laptop and the online courses were free, or free until they earned a particular amount, in contravention of ss 18 and 29 – where Phoenix engaged in unconscionable conduct in connection with the supply of online VET courses to the individual consumers in contravention of s 21 of the Australian Consumer Law – attribution of conduct of Brokers and Agents to Phoenix
Legislation:	Australian Consumer Law (contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 20, 21, 22, 22A, 29, 224, 232, 239 Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB, 12CC Competition and Consumer Act 2010 (Cth) ss 2, 4, 84, 139B, 155, Sch 2 Corporations Act 2001 (Cth) s 444E Education Services for Overseas Students Act 2000 (Cth) Evidence Act 1995 (Cth) ss 50, 59, 62, 79, 140, 192 Federal Court of Australia Act 1976 (Cth) ss 37AI, 37AF, 37AG Higher Education Support Act 2003 (Cth) Pt 3-3, ss 3–10, 104-1, 104-5, 104-15, 104-20, 137-18, 154-1, 154-10, 187-1, 238-10, Sch 1, Sch 1A Pt 1, Div 3, Div 4 Subdivs 4-B, 4-C, 4-D, 4-E, 4-F, cll 1, 4, 6, 7, 13, 15, 20, 23A, 24, 26, 29, 29B, 33, 36, 37, 43, 60, 61, 67, 88 Higher Education Support Amendment (Extending VET FEE-HELP for VET Diploma, Advanced Diploma, Graduate Diploma and Graduate Certificate Courses) Act 2007 (Cth) Higher Education Support Amendment (Further Streamlining and Other Measures) Act 2013 (Cth) Higher Education Support Amendment (Streamlining and Other Measures) Act 2012 (Cth) National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 17, 22, 37, 44, 185, 186, 205 Trade Practices Act 1974 (Cth) s 51AB Federal Court Rules 2011 (Cth) r 8.21 ; Explanatory Memorandum, Competition and Consumer Legislation Amendment Bill 2010 (Cth) Explanatory Memorandum, Higher Education Support Amendment (Streamlining and Other Measures) Bill 2012 (Cth) Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth)
Cases cited:	Aliotta v Broadmeadows Bus Service Pty Ltd (1988) 65 LGRA 362 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368; (2015) 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 (in liq) (No 2) [2018] FCA 1459 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3) [2019] FCA 1982 Australian Competition and Consumer Commission v Australian Power & Gas Co Ltd [2013] FCA 1358 Australian Competition and Consumer Commission v CJ Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2; (2000) 96 FCR 491 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408 Australian Competition and Consumer Commission v EDirect Pty Ltd [2012] FCA 1045 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 2) [2017] FCA 709 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; (2013) ATPR ¶42-447 Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2016] FCA 1246; (2016) 116 ACSR 353 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40 Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; (2005) 146 FCR 292 Australian Competition and Consumer Commission v Unique International College [2017] FCA 727 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 Briginshaw v Briginshaw (1938) 60 CLR 336 Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Commonwealth Bank of Australia v Kojic...