Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2016] FCA 1246

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2016] FCA 1246 File number: NSD 1471 of 2015

Judge: PERRY J

Date of judgment: 21 October 2016

Catchwords: CORPORATIONS – application for leave to proceed against respondents under s 444E(3) of the Corporations Act 2001 (Cth) in proceedings alleging misleading, deceptive and unconscionable conduct against vocational education provider – principles applicable to exercise of discretion to grant leave to proceed – where significant public interest in matter proceeding without substantial delay outweighs detriment to creditors – where relief sought includes refund of substantial monies paid from public revenue and affects potential liabilities of vulnerable persons. CORPORATIONS – whether first applicant is a "creditor" for the purposes of Pt 5.3A of the Corporations Act – whether discretionary claims for relief under the Australian Consumer Law (ACL) are contingent claims for purposes of s 553. CONSUMER LAW – public interest in determination and enforcement of the standards prescribed by the ACL – interaction between ACL and regime applicable to the administration of Deed of Company Arrangement.

Legislation: Australian Consumer Law ss 18, 21, 29, 76, 78, 224, 232, 239, 246 Competition and Consumer Act 2010 (Cth) s 2, Corporations Act 2001 (Cth) ss 435C, 440D, 444E, 471B, s 553 Education Services for Overseas Students Act 2000 (Cth) Federal Court of Australia Act 1976 (Cth) s 21 Higher Education Support Act 2003 (Cth) s 137-18, Schedule 1A cll 26, 43, 55, 61 National Vocational Education and Training Regulator Act 2011 (Cth)