Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2023] FCA 859

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2023] FCA 859 File number(s): NSD 1471 of 2015

Judgment of: PERRY J

Date of judgment: 28 July 2023

Catchwords: CONSUMER LAW – pecuniary penalties – assessment of appropriate penalties to be applied following liability judgment in Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2021] FCA 956 – consideration of principles which govern pecuniary penalties – where contraventions were grossly exploitative, dishonest, and lacking any respect for the dignity and autonomy of the vulnerable consumers who were targeted – total penalties imposed exceed $400 million CONSUMER LAW – non-party redress – where students who completed one or more units of study with first respondent unable to have their debts to the Commonwealth recredited – held: in the interests of justice to exercise discretion to grant redress for the loss or damage likely suffered by the students who completed one or more units of study as a result of the respondents' unconscionable conduct CONSUMER LAW – compensation order – where the Commonwealth is unable to recover any payments for VFH debts from the 11,393 consumers who were enrolled in the Phoenix Online Courses – where Commonwealth therefore incurs debt from all consumers as a result of Phoenix's unconscionable conduct – held: compensation in the sum of $104,138,195.00 awarded

Legislation: Australian Consumer Law (contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 21, 29, 224, 237, 239, 243 Competition and Consumer Act 2010 (Cth) s 76(3) Corporations Act 2001 (Cth) s 553B Federal Court of Australia Act 1976 (Cth) Higher Education Support Act 2003 (Cth) Sch 1A Treasury Laws Amendment (2018 Measures No 3) Act 2018 (Cth)