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

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