Australian Competition and Consumer Commission v Acquire Learning & Careers Pty Ltd
[2017] FCA 602
•30 May 2017
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Acquire Learning & Careers Pty Ltd [2017] FCA 602
File number: VID 930 of 2015 Judge: MURPHY J Date of judgment: 30 May 2017 Catchwords: CONSUMER LAW - contraventions of Australian Consumer Law - false or misleading representations - misleading or deceptive conduct - unconscionable conduct - unsolicited consumer agreements - principles applicable to imposition of a pecuniary penalty, declarations and injunctive relief - appropriateness of agreed orders and declarations Legislation: Competition and Consumer Act 2010 (Cth)
Sch. 2, Australian Consumer Law, ss 18, 21, 29, 24 and 76
Evidence Act 1995 (Cth), s 191
Federal Court of Australia Act 1976 (Cth), ss 37AF and 37AG
Trade Practices Act 1974 (Cth), ss 52 and 76
Cases cited: ACCC v Australia and New Zealand Banking Group Ltd [2016] FCA 1516
ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405
ACCC v Econovite Pty Ltd [2003] FCA 964
ACCC v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698
ACCC v Leahy Petroleum (No 2) [2005] FCA 254
ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90
ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56
ACCC v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609; [2011] FCA 382
ACCC v Pepe’s Ducks Ltd [2013] FCA 570
ACCC v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181
ACCC v Telstra Corporation Ltd (2010) 188 FCR 238
ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54
ACCC v TPG Internet Pty Ltd (No 2) [2012] FCA 629
ACCC v Z-Tek Computers Pty Ltd (1997) 78 FCR 197
Cameron v Qantas Airways Ltd (1994) 55 FCR 147; [1995] FCA 1304
Commonwealth v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61
Hurley v McDonalds Australia Ltd [1999] FCA 1728
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
J McPhee and Son (Aust) Pty Ltd v ACCC [2000] FCA 365
Markarian v The Queen (2005) 228 CLR 357
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Singtel Optus v ACCC (2012) 287 ALR 249; [2012] FCAFC 20
Trade Practices Commission v Allied Mills Industries Pty Ltd (No 5) (1981) 60 FLR 38
Trade Practices Commissionv CSR Ltd (1991) ATPR 41-076
Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091
Trade Practices Commission v TNT Australia Pty Limited (1995) ATPR 41-375
Date of hearing: 26 July 2016 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 102 Counsel for the Applicant: Mr M I Borsky and Ms C Van Proctor Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr P H Wallis Solicitor for the Respondent: Clayton Utz ORDERS
VID 930 of 2015 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: ACQUIRE LEARNING & CAREERS PTY LTD
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
30 MAY 2017
THE COURT DECLARES THAT:
Job Applicant A
1.On or about 3 July 2014, the Respondent (Acquire), by the conduct of a telemarketer employed by Acquire (Career Adviser), in trade or commerce, engaged in conduct in contravention of s 76 of the Australian Consumer Law (ACL), comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth), by failing to provide Job Applicant A with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
2.On or about 3 July 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant A as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during a telephone call to Job Applicant A:
(d)making the following representations with respect to future matters to Job Applicant A without having reasonable grounds for making them:
(i)by becoming a participating student, Job Applicant A would find employment;
(ii)by becoming a participating student, Job Applicant A would find employment in a role that would pay significantly more than if Job Applicant A did not enrol in the VET FEE-HELP assisted course; and
(e)falsely representing to Job Applicant A that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant A, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant A in a VET FEE-HELP assisted course.
3.On or about 3 July 2014, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant A for the purpose of procuring Job Applicant A’s enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant A’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant A had difficulty understanding and speaking English during the telephone call;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant A;
(ii)stated that the Career Adviser had an opportunity for Job Applicant A relating to potential employment;
(iii)stated that Job Applicant A would receive the Windows version of an Apple iPad for enrolling immediately;
(iv)directed Job Applicant A to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant A to consider the appropriateness of and relevant information about the course and about such assistance;
(v)suggested that Acquire was affiliated with the Government;
(vi)did not adequately disclose the circumstances in which Job Applicant A would incur a debt to the Commonwealth if Job Applicant A enrolled in a VET FEE-HELP assisted course provided by a VET provider that was a client of Acquire (Client); and
(vii)did not ascertain whether Job Applicant A understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 1 and 2 of this declaration.
Job Applicant B
4.On or about 17 July 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant B with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
5.On or about 17 July 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VETFEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant B as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during telephone calls to Job Applicant B:
(d)making the following representations with respect to future matters to Job Applicant B without having reasonable grounds for making them:
(i)by becoming a participating student, Job Applicant B would find employment;
(ii)by becoming a participating student, Job Applicant B would find employment in a role of their choice, or a role that would pay more than if Job Applicant B did not enrol in the VET FEE-HELP assisted course; and
(e)falsely representing to Job Applicant B that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant B, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant B in a VET FEE-HELP assisted course.
6.On or about 17 July 2014, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant B for the purpose of procuring Job Applicant B's enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant B’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant B:
(i)disclosed to the Career Adviser circumstances indicating that she had a disability which meant that she had difficulty reading; and
(ii)appeared to demonstrate poor cognitive skills during the call and required assistance from her mother to complete the online form;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant B;
(ii)told Job Applicant B that her placement in the course had been organised for her;
(iii)told Job Applicant B that it was necessary to complete the enrolment process during the telephone call;
(iv)directed Job Applicant B to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant B to consider the appropriateness of and relevant information about the course and about such assistance;
(v)suggested that Acquire was affiliated with the Government;
(vi)did not adequately disclose the circumstances in which Job Applicant B would incur a debt to the Commonwealth if Job Applicant B enrolled in a Client’s VET FEE-HELP assisted course; and
(vii)did not ascertain whether Job Applicant B understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 4 and 5 of this order.
Job Applicant C
7.On or about 4 August 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant C with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
8.On or about 4 August 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant C as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during a telephone call to Job Applicant C:
(d)making the following representations with respect to future matters to Job Applicant C without having reasonable grounds for making them:
(i)by becoming a participating student, Job Applicant C would find employment in a role of their choice; and
(ii)successful completion of the proposed VET FEE-HELP assisted course was guaranteed.
9.On or about 4 August 2014, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant C for the purpose of procuring Job Applicant C's enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant C’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant C had been unemployed for a period of five years at the time of the telephone call;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant C;
(ii)falsely represented to Job Applicant C that the education course would enable her to find employment in "any industry";
(iii)suggested that Job Applicant C had been personally “chosen” by the government to participate in the course;
(iv)directed Job Applicant C to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant C to consider the appropriateness of and relevant information about the course and about such assistance;
(v)suggested that Acquire was affiliated with the Government;
(vi)did not adequately disclose the circumstances in which Job Applicant C would incur a debt to the Commonwealth if Job Applicant C enrolled in a Client’s VET FEE-HELP assisted course; and
(vii)did not ascertain whether Job Applicant C understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 7 and 8 of this order.
Job Applicant D
10.On or about 8 September 2014 and on or about 9 October 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant D with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
11.On or about 8 September 2014 and on or about 9 October 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant D as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during telephone calls to Job Applicant D:
(d)making the following representations with respect to future matters to Job Applicant D without having reasonable grounds for making them:
(i)by becoming a participating student, they would find employment in a role that would pay significantly more than if Job Applicant D did not enrol in the VET FEE-HELP assisted course; and
(ii)the VET FEE-HELP assisted course proposed by Acquire in this instance would be of more assistance to the Job Applicant than the VET FEE-HELP assisted course offered by a VET provider that was not a Client of Acquire; and
(e)falsely representing to Job Applicant D that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant D, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant D in a VET FEE-HELP assisted course.
12.On or about 8 September 2014 and on or about 9 October 2014, Acquire, in trade or commerce, during the course of telephone calls made by a Career Adviser to Job Applicant D for the purpose of procuring Job Applicant D's enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant D’s personal information from a job application he had submitted in response to an online job advertisement;
(b)Job Applicant D disclosed to the Career Adviser:
(i)circumstances indicating that he had a learning disability which meant that he had difficulty studying; and
(ii)that he had received calls about education courses and was not interested in participating in such a course;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant D;
(ii)directed Job Applicant D to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant D to consider the appropriateness of and relevant information about the course and about such assistance;
(iii)encouraged and assisted Job Applicant D to withdraw from a course in which he had enrolled with a competitor of Acquire for the purpose of enrolling Job Applicant D in the course offered by the Career Adviser, without having a reasonable basis to do so;
(iv)did not adequately disclose the circumstances in which Job Applicant D would incur a debt to the Commonwealth if Job Applicant D enrolled in a Client’s VET FEE-HELP assisted course; and
(v)did not ascertain whether Job Applicant D understood the nature of his obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 10 and 11 of this order.
Job Applicant E
13.On or about 15 September 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant E with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
14.On or about 15 September 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant E as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during a telephone call to Job Applicant E:
(d)making the following representations with respect to future matters to Job Applicant E without having reasonable grounds for making them:
(i)by becoming a participating student, Job Applicant E would find employment;
(ii)by becoming a participating student, Job Applicant E would find employment in a role of their choice;
(iii)that the proposed VET FEE-HELP assisted course could be completed by Job Applicant E within a period of one to two months;
(e)falsely representing to Job Applicant E that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant E, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant E in a VET FEE-HELP assisted course.
15.On or about 15 September 2014, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant E for the purpose of procuring Job Applicant E's enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant E’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant E:
(i)disclosed that she was enrolled in a course, had not passed the last two classes and had not yet finished the course; and
(ii)indicated that she was not very computer literate;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant E;
(ii)suggested to Job Applicant E that the call related to work that Acquire was undertaking with recruitment firms;
(iii)suggested that Job Applicant E had been chosen for the course, and that the course had been organised for Job Applicant E;
(iv)directed Job Applicant E to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant E to consider the appropriateness of and relevant information about the course and about such assistance;
(v)suggested that Acquire was affiliated with the Government;
(vi)did not adequately disclose the circumstances in which Job Applicant E would incur a debt to the Commonwealth if Job Applicant E enrolled in a Client’s VET FEE-HELP assisted course; and
(vii)did not ascertain whether Job Applicant E understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 13 and 14 of this order.
Job Applicant F
16.On or about 10 December 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant F with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
17.On or about 10 December 2014, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant F as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during a telephone call to Job Applicant F, falsely representing to Job Applicant F that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant F, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant F in a VET FEE-HELP assisted course.
18.On or about 10 December 2014, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant F for the purpose of procuring Job Applicant F's enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant F’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant F appeared to have difficulty comprehending what was being said to her by the Career Adviser during the telephone call;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant F;
(ii)stated that the course had been arranged for Job Applicant F;
(iii)directed Job Applicant F to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant F to consider the appropriateness of and relevant information about the course and about such assistance;
(iv)did not adequately disclose the circumstances in which Job Applicant F would incur a debt to the Commonwealth if Job Applicant F enrolled in a Client’s VET FEE-HELP assisted course; and
(v)did not ascertain whether Job Applicant F understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 16 and 17 of this order.
Job Applicant G
19.On or about 19 January 2015, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant G with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
20.On or about 19 January 2015, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant B as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during a telephone call to Job Applicant G:
(d)making the following representations with respect to future matters to Job Applicant G:
(i)that successful completion of the proposed VET FEE-HELP assisted course was guaranteed, without having reasonable grounds for making that representation; and
(ii)by becoming a participating student, Job Applicant G would find employment and “paid decent money” without having reasonable grounds for making that representation; and
(e)falsely representing to Job Applicant G that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant G, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant G in a VET FEE-HELP assisted course.
21.On or about 19 January 2015, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant G for the purpose of procuring Job Applicant G's enrolment in a VET FEE-HELP assisted course, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant G’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant G disclosed to the Career Adviser that she:
(i)had a learning and mental illness which meant she was concerned she might not be smart enough to undertake the course;
(ii)had enrolled in, and been unable to complete, a different course;
(iii)did not have internet and computer access at her house;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant G;
(ii)directed Job Applicant G to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant G to consider the appropriateness of and relevant information about the course and about such assistance; and
(iii)did not adequately disclose the circumstances in which Job Applicant G would incur a debt to the Commonwealth if Job Applicant G enrolled in a Client’s VET FEE-HELP assisted course; and
(iv)did not ascertain whether Job Applicant G understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 19 and 20 of this order.
Job Applicant H
22.On or about 24 March 2015, Acquire, by the conduct of its Career Adviser, in trade or commerce, engaged in conduct in contravention of s 76 of the ACL by failing to provide Job Applicant H with the information relating to unsolicited consumer agreements prescribed by s 76 of the ACL.
23.On or about 24 March 2015, Acquire, by the conduct of its Career Adviser, in trade or commerce:
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL; and
(b)made false or misleading representations about uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL; and
(c)engaged in conduct in trade or commerce which was liable to mislead Job Applicant H as to the nature and the characteristics of the service provided by the Career Adviser in contravention of s 34 of the ACL,
by the Career Adviser, during telephone calls to Job Applicant H:
(d)falsely representing to Job Applicant H that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant H, when the primary purpose of the telephone call was to procure the enrolment of Job Applicant H in a VET FEE-HELP assisted course; and
(e)representing to Job Applicant H that by becoming a participating student, they would find employment in a role that would pay significantly more than if Job Applicant H did not enrol in the VET FEE-HELP assisted course, without having reasonable grounds for making that representation as to future matters.
24.On or about 24 March 2015, Acquire, in trade or commerce, during the course of a telephone call made by a Career Adviser to Job Applicant H for the purpose of procuring Job Applicant H's enrolment in a VET FEE-HELP assisted course for which Job Applicant H may incur a debt to the Commonwealth under the VET FEE-HELP scheme, engaged in conduct that was unconscionable in contravention of s 21 of the ACL, by using unfair sales tactics and imposing undue pressure, in the collective circumstances considered together set out below:
(a)Acquire obtained Job Applicant H’s personal information from a job application she had submitted in response to an online job advertisement;
(b)Job Applicant H disclosed to the Career Adviser that she:
(i)had only completed schooling up to year 7, was 18 years of age and had no experience in the workforce; and
(ii)did not have a computer at home;
(c)the Career Adviser:
(i)falsely represented during the telephone call that the primary or only purpose of the telephone call was for Acquire to find employment for Job Applicant H;
(ii)directed Job Applicant H to complete the online application process and submit a request for VET FEE-HELP assistance during the telephone call without providing sufficient opportunity for Job Applicant H to consider the appropriateness of and relevant information about the course and about such assistance;
(iii)did not adequately disclose the circumstances in which Job Applicant H would incur a debt to the Commonwealth if Job Applicant H enrolled in a Client’s VET FEE-HELP assisted course; and
(iv)did not ascertain whether Job Applicant H understood the nature of her obligations under the VET FEE-HELP scheme; and
(d)Acquire failed to comply with the provisions of the ACL relating to unsolicited consumer agreements and engaged in the false, misleading or deceptive conduct referred to in paragraphs 22 and 23 of this order.
AND THE COURT ORDERS THAT:
Injunctions
25.Acquire be restrained for a period of three years from the date of this Order, whether by itself, its servants, agents or otherwise howsoever, when engaging with a consumer for the purpose of entering into any negotiation, discussion or dealing directed towards enrolling the consumer in a course of study, from making any statements or representations to the consumer to the effect that by enrolling in the course, the consumer would be certain to:
(a)find employment;
(b)find employment in a role of their choice; and
(c)find employment in a role that would pay significantly more than if the consumer did not enrol in the VET FEE-HELP assisted course.
Compliance program
26.For a period of three years from the date of this order, Acquire undertake a review by the end of each six month period of its existing compliance programme to ensure that it is effective in ensuring that its employees, agents and other persons involved in its business are aware of their responsibilities and obligations in relation to the conduct declared by the Court in this proceeding to be in contravention of ss 18, 21, 29(1)(g), 34 and 76 of the ACL.
27.Within 14 days of undertaking the reviews referred to in paragraph 26 above, Acquire provide the Applicant (ACCC) with a written report specifying the outcome of the review.
Pecuniary penalties
28.Acquire pay to the Commonwealth of Australia such pecuniary penalties in respect of Acquire’s contraventions of ss 21, 29(1)(g), 34 and 76 of the ACL referred to in paragraphs 1 to 24 above in the total amount of $4.5 million, payable in 12 equal monthly instalments, with the first such instalment to be paid within 30 days of the date of this order.
Costs
29.Acquire pay a contribution towards the ACCC’s costs of this proceeding, fixed in the sum of $100,000, within 30 days of the date of this Order.
NOTICE PURSUANT TO RULE 41.06 OF THE FEDERAL COURT RULES 2011
TO: ACQUIRE LEARNING & CAREERS PTY LTD
You are liable to imprisonment, sequestration of property or to punishment for contempt if:
(a)where this order requires you to do an act or thing within a specified time, you refuse or neglect to do the act within that time; or
(b)where this order requires you not to do an act or thing, you disobey the order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
INTRODUCTION
In this proceeding the applicant, the Australian Competition and Consumer Commission (ACCC), alleges that in the period 3 July 2014 to 24 March 2015 (the relevant period) the respondent, Acquire Learning & Careers Pty Ltd (Acquire), engaged in misleading or deceptive conduct, made false or misleading representations, engaged in unconscionable conduct and contravened provisions relating to unsolicited consumer agreements, in breach of the Australian Consumer Law (ACL) in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA). Acquire admits the contraventions and the underlying conduct by way of a Statement of Agreed Facts and Admissions (the agreed facts and admissions) and the parties have provided joint submissions on relief.
In the relevant period Acquire employed sales staff, misleadingly called Career Advisers, to use personal information that Acquire had purchased to make unsolicited marketing calls to job seekers and aggressively market vocational education courses to them. The courses were run by education providers who had agreed to pay Acquire a fee for referrals and enrolments, sometimes a percentage of the course fee. Acquire aimed to enrol the job seekers, on the spot, into a vocational education course (often into a management course which was plainly inappropriate) and also into a Commonwealth Government education loan scheme to pay for the course (the VET FEE-HELP scheme). It used various unfair and misleading sales techniques to induce job seekers. The enrolled job seekers incurred an interest-earning debt to the Commonwealth under the VET FEE-HELP scheme of between $9,900 and $21,000, repayable if the person reached a minimum income level. If the job seeker never reaches the minimum income level the Commonwealth is not repaid the loan.
Acquire only admits contravening conduct in relation to telemarketing calls it made to eight unemployed job seekers (the Job Applicants), but it admits that the contravening conduct was not that of rogue employees and was a core part of its business model. It accepts that its sales system courted the risk of contravening the ACL. I infer that these eight instances were not isolated examples. Acquire admits that it used undue pressure, unfair sales tactics, made false and misleading representations, did not provide an opportunity for the Job Applicants to consider the suitability of the courses being offered, did not disclose the circumstances in which the Job Applicants would incur a significant debt to the Commonwealth, and did not provide prescribed information about the enrolment agreement to the Job Applicants.
In some instances there were grave aggravating features to Acquire’s unconscionable conduct. Some Job Applicants disclosed that they had a learning disability including difficulty reading, mental illness, an inability to complete other education courses, or had only completed school to year seven or ten. One Job Applicant had difficulty understanding and speaking English. Notwithstanding this Acquire induced them to enrol on the spot in a course which they were unlikely to be able to complete and/or which was unlikely to assist them to obtain better employment than if they had not enrolled.
Acquire admits that its conduct was unfair, misleading and unconscionable. It admits that it misled the Job Applicants by falsely representing that the primary or only purpose of the telephone call was for Acquire to find employment for them, that it had an employment opportunity for them, and in the case of some Job Applicants that he or she had been “chosen” for the offer. It admits that it had no reasonable grounds for representing to the Job Applicants that by enrolling in the course they would find employment or would find employment in a job that would pay significantly more than if they did not enrol. In most instances the Job Applicants incurred a significant debt to the Commonwealth for no real benefit, and it is likely the Commonwealth suffered a significant loss because the debt was unlikely to be repaid.
I consider Acquire’s motive was not, as it pretended, to help job seekers out of the unemployment queue and into employment, but to maximise its profits through fees it received from course providers. Its activities resembled those of an unscrupulous fly by night operation rather than those of a prominent and market leading provider of student recruitment services, as it describes itself. In my opinion Acquire took advantage of vulnerable unemployed job seekers in order to rort the VET FEE-HELP scheme and its conduct was disgraceful. Ultimately, Acquire received significant fees and the burden of its conduct was most likely shared between such job seekers and the Australian taxpayer.
As the parties submitted, it is appropriate to make declarations that Acquire :
(a)engaged in misleading or deceptive conduct in contravention of s 18 of the ACL;
(b)made false or misleading representations about the uses or benefits of enrolling in a VET FEE-HELP assisted course in contravention of s 29(1)(g) of the ACL;
(c)engaged in conduct in trade or commerce which was liable to mislead as to the nature and the characteristics of the service provided by Acquire in contravention of s 34 of the ACL;
(d)engaged in conduct in contravention of s 76 of the ACL and reg 84 of the Competition and Consumer Regulations 2010 (Regulations) by failing to provide the Job Applicants with prescribed information relating to unsolicited consumer agreements; and
(e)engaged in conduct which was in all the circumstances unconscionable in contravention of s 21 of the ACL.
It is also appropriate to order injunctions against the repetition of such conduct, to require Acquire to pay pecuniary penalties totalling $4.5 million and to pay $100,000 towards the ACCC’s costs. I gave close consideration to ordering a higher penalty but, particularly in light of the fact that Acquire is now in a parlous financial position, a penalty of $4.5 million meets the central aims of specific and general deterrence.
THE AGREED FACTS AND ADMISSIONS
I thank the parties for the quality of the agreed facts and admissions and the joint submissions on relief. I have directly drawn on them at some points.
Acquire’s business
Acquire is and was at all material times a trading corporation within the meaning of s 4 of the CCA. Before and during the relevant period Acquire’s business model included it:
(a)entering into agreements with online job advertisers (Advertisers) pursuant to which the Advertisers agreed to provide Acquire with the personal information of job seekers who responded to online job advertisements. Acquire obtained similar information from their own recruitment businesses which had online “job boards”. This gave Acquire the personal information and contact details of job seekers to use in marketing vocational education courses;
(b)entering into agreements with certain VET approved providers of vocational education courses (Clients) to market and promote their courses. Each Client appointed Acquire as its agent and agreed to pay Acquire a fee, sometimes a percentage of the course fee, for each student enrolled in a VET FEE-HELP assisted course. Acquire’s services included seeking to have prospective students fully complete the Client’s application forms for enrolment and the forms for VET FEE-HELP during the sales calls;
(c)employing or contracting (misleadingly titled) Career Advisers to make telemarketing calls to job seekers (whose personal details it had acquired) to market VET FEE-HELP assisted courses offered by its Clients. The Career Advisers were paid an hourly rate of $20.20 plus commission based on the number of job seekers referred and enrolled in the courses, together with other incentives in the form of cash and prizes awarded on the same basis; and
(d)training Career Advisers to “book the maximum amount of enrolments possible” and incentivising them to maximise sales. It provided the Career Advisers with a script for use during telemarketing calls which made misleading representations, and the Career Advisers used high-pressure and unfair sales techniques to enrol job seekers, on the spot, in the relevant courses and in the VET FEE-HELP scheme.
The Debt to the Commonwealth
Each person who enrolled in a VET FEE-HELP assisted course incurred a debt to the Commonwealth (Debt) being the fee charged by the education provider and in most instances a 20% loan fee. Each Debt was indexed annually and increased to reflect increases in the Consumer Price Index and was repayable via compulsory deductions from that person’s taxable income once it exceeded a minimum repayment income level. During the relevant period, the minimum repayment income level was $53,345. The Debts incurred by the Job Applicants ranged between $9,900 and $21,000.
Acquire’s conduct
During the relevant period Career Advisers made unsolicited telephone calls to each of the eight Job Applicants, amongst many others. The Career Advisers did so for the purpose of procuring their enrolment, on the spot, in a VET FEE-HELP assisted course run by one of Acquire’s Clients and their participation in the VET FEE HELP scheme.
Job Applicant A
On or about 3 July 2014 a Career Adviser made an unsolicited telephone call to Job Applicant A, who had difficulty understanding and speaking English. During the telephone call the Career Adviser made statements to the following effect:
(a)that the call was in regards to Job Applicant A’s recent online job search. The Career Adviser asked if she was still looking for work and told her that he had “an opportunity to run past you in regard to potential employment”. He told her that an Advertiser who had not been able to place her in a job had passed her details on to Acquire “so we can help you out”;
(b)that Acquire would “organise a fully government assisted online qualification, whilst also helping you get the job that you are after”. Job Applicant A asked whether Acquire was affiliated with the government and the Career Adviser said that he was not calling from the Government, but that Acquire was “affiliated with some of the government incentives, though” and the VET FEE-HELP assisted course “works in conjunction with the Federal Government”. He told Job Applicant A that she would not have to pay anything for the course up front and that the government will “front the entire course cost”;
(c)Job Applicant A said that she had been looking for work for about five months and the Career Adviser said “we will be able to help you out with that” and “we want to get you into a job as soon as possible”. He said “being in your current employment situation, I’m assuming this is something you would like to take advantage of, so we can help you out to get a job?” He said that the VET FEE-HELP assisted course would make Job Applicant A more employable and put her in “the top eighth percentile of people going for similar jobs”, would enable her to go for any entry level office work and would make her “eligible to go for a management position”; and
(d)that because Job Applicant A was organising enrolment with him that day, she would receive a free Apple iPad. He directed Job Applicant A to apply for VET FEE-HELP online and directed her to tick the boxes under the heading “Your Obligations” and said “hit submit whenever you’re ready”.
During the telephone call Job Applicant A submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period (as provided in s 76 of the ACL), the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant B
On or about 17 July 2014 a Career Adviser made an unsolicited telephone call to Job Applicant B during which the Career Adviser made statements to the following effect:
(a)that he could see that Job Applicant B had been applying for jobs online recently and asked what sort of job she was looking for. She replied that she was looking for a job as a kitchen hand or something similar. In response the Career Adviser said “so you’re looking to get into hospitality. And that is obviously something you’re looking to progress - work your way up into a management role?” Job Applicant B responded “sort of, not really. I don’t really have the experience for that”;
(b)that he works with a group called APTI “who work in conjunction with the Federal Government” and that “what has been organised for you is a placement into a nationally recognised diploma level qualification in management.” He said that obtaining the qualification would mean that she will get the job that she was after and a job that pays a good income as well. He said that it would put her in the top 8% of job applicants;
(c)Job Applicant B disclosed that she had a “little bit of a disability” which involved difficulty with reading;
(d)the Career Adviser said that the proposed course is “fully paid for by the government upfront” and “it only gets paid back very slowly through the tax system if and when you start earning over…” and Job Applicant B replied that she had to be careful with her Centrelink payments; and
(e)that “obviously being in your current employment situation, I’m going to assume this is something you would want to take advantage of, correct?” Job Applicant B responded “yes” and the Career Adviser said “well, it’s actually my job to get that organised for you. It’s just done through a quick online enrolment form.” Job Applicant B asked if she could “come back to you” and the Career Adviser said that he had to stay on the telephone while she filled the form out because there were questions that she would not be able to answer and he would need to tell her what to say. Job Applicant B then said she would get her mother to help her out.
In a second telephone call on the same day the Career Adviser made statements to the effect that upon completion of the course Job Applicant B would “acquire a nationally-accredited diploma level qualification of management with one of the most recognised, registered training organisations”. During this telephone call Job Applicant B submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant C
On or about 4 August 2014 a Career Adviser made an unsolicited telephone call to Job Applicant C during which the Career Adviser made statements to the following effect:
(a)that “the government has chosen you for the qualification” which means “that you can basically get yourself into every single job industry”, and that by “having the qualification on your resume, you actually go in the top eight percent of applicants in Australia applying for work online”;
(b)Job Applicant C said that she was specifically interested in working in real estate but the Career Adviser proposed that she in enrol in a management course. He said that the course was done through VET FEE-HELP “so the Australian government pays your entire qualification for you”. He said that “you’re actually not liable to pay absolutely anything for your qualification in your entire lifetime if you’re earning under $52,000 a year”; and
(c)that she could not fail the proposed course.
During this telephone call Job Applicant C submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant D
On or about 8 September 2014 a Career Adviser made an unsolicited telephone call to Job Applicant D during which the Career Adviser said that the reason for the call was that Job Applicant D had recently been searching for work. Job Applicant D said that he had previously received calls about their education courses and that he was not interested. In response the Career Adviser said that the course “will basically assist you with your job search and help you…get that job you want”. Job Applicant D reiterated that he was not interested.
On or about 9 October 2014 a Career Adviser made another unsolicited telephone call to Job Applicant D, during which the Career Adviser made statements to the following effect:
(a)Job Applicant D disclosed to the Career Adviser that he had a learning disability, that he was “not the best at studying”, and that he had only completed up to year 10 of high school. He also said that he was looking for retail jobs and that he had enrolled in a VET FEE-HELP assisted business course run by Ivy College;
(b)in response the Career Adviser said that Job Applicant D should withdraw from that course and enrol in the VET FEE-HELP assisted course that he proposed. He said that the business course offered by Ivy College was not relevant to retail jobs and that the management course he recommended would “definitely help you a lot more”. He said “I don’t want you to be enrolled into the wrong course” and that a management course is “a lot more relevant to you”. He said that a Diploma of Management would possibly allow Job Applicant D “to move forward into a managerial supervisor-type role” thereby gaining a “higher earning income”; and
(c)the Career Adviser said that the suggested course was fully government assisted and that “the government actually pays for [Job Applicant D] to do the entire qualification” and “it only gets paid back very slowly through the tax system if [he earns] over $53,345 a year”.
During this telephone call Job Applicant D submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. His application was accepted and resulted in an agreement for the Client to supply education services to him. Acquire did not provide him with information about his right to terminate the agreement during the termination period, the way in which he could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant E
On or about 15 September 2014 a Career Adviser made an unsolicited telephone call to Job Applicant E during which the Career Adviser made statements to the following effect:
(a)that Acquire is “an education and employment centre”, that Acquire’s records indicated that Job Applicant E had been applying for work online and that Job Applicant E’s details had been “passed to us as someone who is active on the job-seeking market”;
(b)Job Applicant E said that she wanted to work on the “medical side” and said that she had commenced but not completed a Certificate III in Health Service Assistance, and that she had not passed the last two classes;
(c)that Job Applicant E had “been chosen” and that “the government has organised for you… a placement into a nationally recognised diploma-level qualification in management”. She told Job Applicant E that “what the qualification actually enables you to do is actually get yourself into every single job industry”;
(d)that if Job Applicant E was “really dedicated” she could complete the proposed course in one to two months. The Career Adviser also said that “the benefit of this qualification [is that] you cannot fail it, because it is all based on competency”;
(e)that “basically the Australian Government pays your entire qualification for you”, that “it’s all fully government assisted, so it means the VET FEE-HELP pays your entire qualification, which is actually $20,000, which is fantastic” and that if Job Applicant E “earn[s] under $53,000 a year, you never pay anything”; and
(f)that Job Applicant E should update her resume immediately to show that she is currently studying a “diploma level qualification in management” and that “usually with some studies, you can’t put it on there until it’s completed, but because it’s a high level qualification at diploma level, then you can place it on there instantly”.
During this telephone call Job Applicant E submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in an assisted course provided by one of Acquire’s Clients. Her application was accepted and resulted in an agreement for the Client to supply education services to her. She was not provided with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant F
On or about 10 December 2014 a Career Adviser made an unsolicited telephone call to Job Applicant F during which the Career Adviser made statements to the following effect:
(a)that she had seen that Job Applicant F had been looking for work online recently. Job Applicant F told the Career Adviser that she had in fact found a job that day. The Career Adviser continued to propose a VET FEE-HELP assisted course and said “I’ll let you know why we’re in contact with you today because it’d still be a good opportunity for you”. She said that “the reason that [the course] had been arranged for you is because you were looking for work online for quite a while”; and
(b)that “we basically just get the government to pay upfront for this qualification” and she only had to pay back the course fee, slowly, if she earned over $53,000 per year. Job Applicant F then asked if “it’s fully paid for” to which the Career Adviser replied “Yep, fully paid for upfront by the government”.
During the telephone call Job Applicant F submitted a request to participate in the VET FEE-HELP scheme, and applied to enrol in a VET FEE-HELP assisted course provided by a Client of Acquire. Her application was accepted and resulted in an agreement for the Client to supply education services to her. Acquire did not provide her with information about her right to terminate the agreement during the termination period, the way in which she could terminate the agreement or the fact that the education services could not be supplied for a period of 10 business days starting from the first business day after the telephone call.
Job Applicant G
On or about 19 January 2015 a Career Adviser made an unsolicited telephone call to Job Applicant G during which the Career Adviser made statements to the following effect:
(a)that the reason the Career Adviser called was because Job Applicant G had been actively looking for work, which “tells us you’re motivated”;
(b)Job Applicant G disclosed that she was 19 years old, had a learning and mental illness and was concerned that she might not be “smart enough” to undertake the course proposed by the Career Adviser. She disclosed that she had previously signed up to a different course and had not completed it, as it was too hard. She said that she “hates studying”, and that she was likely to earn less than $10,000 that year;
(c)that Job Applicant G “cannot fail” the proposed course and that support would be provided to ensure that she did not;
(d)that the qualification could be completed online and was “perfect for people like you”. Job Applicant G responded by stating that she did not have internet access at her home;
(e)that the government would pay for the entire course cost upfront, that it was “free of charge” and that if Job Applicant G does not “hit the yearly income threshold, you don’t have to pay anything”, but if she did “creep over it” she would “pay it back through your tax in very, very small percentages”, and that the government pays the entire course cost but they may also charge a loan fee. The Career Adviser said that “it just means you can study now, get the qualification, get the job, get paid decent money”;
(f)the Career Adviser identified the link on the website to the VET FEE-HELP information booklet but said that it was 29 to 30 pages long and just reiterates everything that the Career Adviser had already gone over. The Career Adviser said that Job Applicant G should “feel free to look at it in your own time, but I will just go over and summarise”. The Career Adviser told Job Applicant G to check the box that indicates that she agreed with all the obligations listed without identifying the detail of the obligations or ascertaining whether she had read, understood and agreed with that detail; and
(g)that she would receive a free laptop with the proposed VET FEE-HELP course.
The parties did not seek to support the proposed penalty on the grounds that the facts of this case are comparable to those of other cases.
Totality principle
This principle requires that the entirety of the underlying contravening conduct be considered to determine whether a penalty is just and appropriate as a whole. The underlying rationale of the principle is to ensure that the proposed penalty is proportionate when the contraventions are viewed collectively: TPG at [138]-[139]. Its application in the present case means that, although there are eight courses of conduct, the total penalty should not exceed what is appropriate for the entirety of the underlying contravening conduct. It operates as a final check to ensure that the penalties imposed are just and appropriate overall: Trade Practices Commission v Allied Mills Industries Pty Ltd (No 5) (1981) 60 FLR 38 at 40; Trade Practices Commission v TNT Australia Pty Limited (1995) ATPR 41-375 at 40,169. The parties submit, and I agree, that while the proposed penalty of $4.5 million is substantial it is not oppressive. I would not apply the totality principle so as to reduce the aggregate penalty below that proposed.
Pecuniary penalty orders
Having synthesised the relevant matters, I consider a total pecuniary penalty of $4.5 million is appropriate. There is no good reason to depart from the parties’ submissions as to the appropriate penalty. The total penalty relates to the contraventions as follows:
(a)in respect of the eight contraventions of s 76, $40,000 for each contravention, totalling $320,000;
(b)in respect of the eight contraventions of ss 29(1)(g) and 34 together, $225,000 for each contravention totalling $1.8 million;
(c)in respect of the four contraventions of s 21 relating to Job Applicants A, B, D and G, $345,000 for each contravention, totalling $1.38 million; and
(d)in respect of the four contraventions of s 21 relating to Job Applicants C, E, F and H, $250,000 for each contravention, totalling $1 million.
The higher penalty for the four contraventions of s 21 relating to Job Applicants A, B, D and G reflects the aggravating features of Acquire’s conduct in those instances.
DECLARATIONS
The Court has power under s 21 of the Federal Court Act to award declaratory relief. Ordinarily, three requirements should be satisfied before a declaration can be made: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 437-438 (Gibbs J):
(a)the question must be a real and not a hypothetical or theoretical one;
(b)the applicant must have a real interest in raising it; and
(c)there must be a proper contradictor.
Where declarations are sought by consent the Court’s discretion is not supplanted, but the Court will not usually refuse to give effect to terms of settlement by refusing to make orders where they are within jurisdiction and are otherwise unobjectionable: ACCC v Econovite Pty Ltd [2003] FCA 964 at [11] (French J).
It is unnecessary to now set out the declarations the parties seek when they are detailed in the orders made. It suffices to note that they are in my view appropriate because they serve to record the Court’s disapproval of the contravening conduct, inform the public and operate to deter others from contravening the ACL. The questions are real, as a public regulator the ACCC has a real interest in seeking the declarations, and although the declarations are jointly proposed Acquire is a proper contradictor: see ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 at [30] (Greenwood, Logan and Yates JJ).
INJUNCTIVE RELIEF
The parties seek an injunction restraining Acquire for a period of three years from making representations to the effect of one of those made to the Job Applicants. The Court has ample power pursuant to s 232 of the ACL to grant such injunctive relief, subject to three limitations: see ACCC v Z-Tek Computers Pty Ltd (1997) 78 FCR 197 at 203-204 (Merkel J):
(a)the power is confined by reference to the scope and purpose of the ACL. The relief should be designed to prevent a repetition of the conduct for which the relief is sought;
(b)there must be a sufficient nexus or relationship between the contravention and the injunction; and
(c)the injunction must relate to the “matter” before the Court.
After I raised concerns about a lack of clarity in the injunction proposed, the parties put forward an injunction in amended form. The proposed amended injunction is sufficiently clear, has a sufficient relationship to the contraventions, and is designed to deter a repetition of the contravening conduct (by attaching the sanctions available for contempt of Court to any repetition of the contraventions): ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 268 (French J). In my view it is appropriate to order the injunctive relief the parties seek.
COMPLIANCE PROGRAM
The parties seek orders requiring Acquire to review its existing compliance program at the end of each six month period, doing so for a period of three years. Such an order is appropriate in circumstances where Acquire’s existing compliance program did not prevent contraventions of the ACL. It is in the interests of consumers and in the public interest that Acquire has an effective compliance program in place, and appropriate to make these orders.
COSTS
Acquire has agreed to pay $100,000 towards the ACCC’s costs of the proceeding, within 30 days of the date of this order. Such an order is appropriate.
I have made orders in terms of the draft minutes provided by the parties.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 30 May 2017
Key Legal Topics
Areas of Law
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Consumer Law
Legal Concepts
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Misleading or Deceptive Conduct
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Unconscionable Conduct
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Unsolicited Consumer Agreements
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Compensatory Damages
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Injunction
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