Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

Matter No S118/2023

PRODUCTIVITY PARTNERS PTY LTD (TRADING

AS CAPTAIN COOK COLLEGE) & ANOR APPELLANTS

AND

AUSTRALIAN COMPETITION AND CONSUMER

COMMISSION & ANOR RESPONDENTS

Matter No S116/2023

BLAKE WILLS APPELLANT

AND

AUSTRALIAN COMPETITION AND CONSUMER

COMMISSION & ORS RESPONDENTS

Productivity Partners Pty Ltd v Australian Competition and Consumer Commission

Wills v Australian Competition and Consumer Commission

[2024] HCA 27

Date of Hearing: 7 & 8 February 2024

Date of Judgment: 14 August 2024

S118/2023 & S116/2023

ORDER

In each matter:

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

J C Giles SC with R B Davies for the appellants in S118/2023 and the second and third respondents in S116/2023 (instructed by MinterEllison)

M R Hodge KC with C E Bannan for the appellant in S116/2023 and the second respondent in S118/2023 (instructed by HWL Ebsworth Lawyers)

S P Donaghue KC, Solicitor-General of the Commonwealth, and O Bigos KC with S A C Patterson and L G Moretti for the first respondent in both matters (instructed by Johnson Winter Slattery)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Productivity Partners Pty Ltd v Australian Competition and Consumer Commission

Wills v Australian Competition and Consumer Commission

Trade practices – Consumer protection – Unconscionable conduct – Where s 21 of Australian Consumer Law ("ACL") relevantly provided that persons must not, in trade or commerce, in connection with supply of services, "engage in conduct that is, in all the circumstances, unconscionable" – Where s 224(1) of ACL relevantly provided that Court may order person to pay pecuniary penalty when that person "knowingly concerned in, or party to, the contravention" of provisions including s 21 – Where Productivity Partners Pty Ltd ("College") offered vocational education and training ("VET") courses funded through Commonwealth loan program – Where College altered enrolment process to remove safeguards ameliorating known risks of unwitting or unsuitable persons becoming and remaining enrolled at date on which VET fees became claimable by College from Commonwealth – Where Mr Wills was Chief Operating Officer of parent company of College and, for part of relevant period, acting Chief Executive Officer of College – Whether College engaged in unconscionable conduct in contravention of s 21 of ACL – Whether Mr Wills knowingly concerned in or party to that contravention.