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

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