Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 06 April 2023
• Neutral Citation: [2023] FCAFC 54
• Date: 06 April 2023

Federal Court of Australia

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

Appeal from:
File number(s):	NSD 887 of 2021NSD 895 of 2021
Judgment of:	WIGNEY, O’BRYAN AND DOWNES JJ
Date of judgment:	6 April 2023
Catchwords:	CONSUMER LAW – unconscionable conduct – statutory unconscionability under s 21 of the Australian Consumer Law (ACL) – registered training organisation provided vocational education and training under Commonwealth’s Vocational Education and Training Fee Higher Education Loan Program (VFH scheme) – whether certain changes made by the registered training organisation to the student enrolment process, and the claiming and retaining of revenue in respect of enrolments under the VFH scheme, constituted unconscionable conduct – whether a senior executive of the registered training organisation was knowingly concerned in, or party to, the alleged contraventions of the registered training organisation for the purpose of ss 224, 246 and 248 of the ACL – whether conduct of sales and marketing agents of the registered training organisation undertaken in contravention of ss 18, 21 or 29 of the ACL can be taken to have been engaged in by the registered training organisation within the meaning of s 139B(2) of the Competition and Consumer Act 2010 (Cth) – whether conduct of registered training organisation was not unconscionable by reason that the organisation promptly remedied harm that was caused by conduct that would otherwise have been characterised as unconscionable
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12CC Competition and Consumer Act 2010 (Cth) ss 139B, 155, Sch 2 (Australian Consumer Law) ss 2, 18, 20, 21, 22, 29, 69, 78, 79, 224, 246, 248 Higher Education Support Act 2003 (Cth) Trade Practices Act 1974 (Cth) Pt IVB, ss 51AC, 51ACA, 51AD, 52A Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth)
Cases cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Ashbury v Reid [1961] WAR 49 Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 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 BlueScope Limited (No 5) [2022] FCA 1475 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408 Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881; 60 IPR 296 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90; ATPR 42-447 Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45 Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737; 154 ACSR 472 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 4) [2021] FCA 752 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 5) [2021] FCA 919 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; 388 ALR 577 Australian Competition and Consumer Commission v Rural Press Ltd [2001] FCA 116; ATPR 41-804 Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212 Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2021] FCA 956 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052; 59 ACSR 373 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132 Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701; 131 ACSR 585 Australian Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] FCA 515; 159 ACSR 381 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Coggin v Telstar Finance Company (Q) Pty Ltd [2006] FCA 191; ASAL 55-156 Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 Fox v Percy (2003) 214 CLR 118 Giorgianni v The Queen (1985) 156 CLR 473 Good Living Company Pty Ltd v Kingsmede Pty Ltd (2021) 284 FCR 424 Jenyns v Public Curator (Qld) (1953) 90 CLR 113 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 Keller v LED Technologies Pty Ltd (2010) 185 FCR 449 Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228 McGrath v HNSW Pty Ltd (2014) 219 FCR 489 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 Perpetual Trustee Company Ltd v Burniston (No 2) [2012] WASC 383; 271 FLR 122 Perpetual Trustees Victoria Limited v Xiao [2015] VSC 21 Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 R v Nifadopoulos (1988) 36 A Crim R 137 R v Tannous (1987) 10 NSWLR 303 Rafferty v Madgwicks (2012) 203 FCR 1 Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31; 368 ALR 607 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 399 ALR 409 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) 266 FCR 631 Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 Western Australia v Ward (2002) 213 CLR 1 Yorke v Lucas (1985) 158 CLR 661 Xiamen Huadian Switchgear Co Ltd v Powins Pty Ltd [2022] FCA 1159; 169 IPR 77 The Juliana (1822) 2 Dods 504; 165 ER 1560
Division:
Registry:	New South Wales
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